50
absconded, there was compliance with the traditional practices of his custom
as he understood it.
[87]
The appellant also referred to the customary practice that a female would not
explicitly consent to the removal by the man when conducting the ukuthwala
and would pretend to resist as a sign of her modesty17. In this regard both
Nhlapo and Inkosi Mahlangu confirmed such conduct on the part of a
consenting female in the “abduction” (our underlining).
The appellant
contended that this created an ambiguity about consent; and with reference to
the evidence claimed that when the complainant ran away on the two
occasions (which he admitted), the first in the Eastern Cape and the second in
Philippi, it was no more than in accordance with such long standing and
recognised practice.
[88]
In respect of the incident in the Eastern Cape, he claimed that she had said to
him that she had only wanted to visit her family, but was afraid that he and his
family would not have allowed her to do so.
The trial court found, and
correctly in our view, that the running away by the complainant could not on
the evidence have been an indication of any pretence on her part.
If
anything, the evidence with regard to her running away in the Eastern Cape,
walking through a forest at night, alone, sleeping in the open and exposed to
the elements was nothing more than a desperate attempt on her part at
17
Appellant’s Heads of Argument para 21-23 page 588
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