18
Assessment of evidence
[41]
Counsel for the appellant contended that neither the regional magistrate, nor
the high court, attached sufficient weight to the contradictions and improbabilities in,
and the unreliable nature of certain aspects of, the evidence of the complaint and other
State witnesses. Moreover, it was submitted, both the regional magistrate and the high
court erred by not finding that there was insufficient corroboration of the
complainant’s evidence in respect of the alleged sexual incidents. According to
counsel, the evidence of the appellant should not have been rejected as not being
reasonably possibly true. Finally, counsel repeated – and elaborated upon in
considerable detail – the argument which he had advanced before the regional
magistrate and the High Court, namely that the complainant was conspiring with the
rest of his family to incriminate the appellant falsely, in order to conceal from the
outside world his homosexual orientation and, possibly, the identity of his
homosexual partner.
[42]
I do not find any of these arguments convincing. As Hartzenberg J pointed in
his judgment, there were indeed contradictions in the complainant’s evidence and that
of some of the other State witnesses. On the whole, however, the complainant
remained consistent although he was testifying about events some of which occurred
more than five years before the commencement of the trial. It is true that the
complainant’s evidence that the appellant had penetrated him anally only three times
and that he had never been involved in a homosexual relationship with any other
person, cannot really be reconciled with Dr Winn’s evidence that all the findings
which emerged from his anal examination of the complainant pointed to repeated
(‘chronic’) anal penetration. However, it was also clear from the complainant’s
evidence that, in his view, considerable stigma attached to being inclined to same-sex
sexual activity. There are many possible reasons why the complainant might not have
wanted to disclose the fact of a possible homosexual relationship with another person
occurring at the same time as the occurrence of the sexual acts between himself and
the appellant, or of such a homosexual relationship occurring after these events. In
this regard, the reasoning of Hartzenberg J in the High Court is compelling‘That superficially speaking his [the complainant’s] evidence and that of Dr Winn cannot be
reconciled, is clear. The magistrate was clearly aware of it because he pointed out that the medical
examination was done eighteen months after the last incident of anal penetration by the appellant.
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