51
escaping from the appellant. It is therefore in our view nothing more than a
cynical attempt on the appellant’s part to claim that he harboured a belief that
when the complainant ran away, she did so out of sheer modesty, and his
reliance on the customary practice is entirely misplaced.
[89]
He claimed in defence of the charge of trafficking that her family was fully
aware of his intention to bring her to Cape Town and had not objected to her
relocating with him. Moreover, the trial court did not find, on a careful
examination of the evidence relating to the relocation and correctly in our view,
that the complainant had consented to the customary marriage, the incidents
of sexual intercourse with him, and that she had willingly relocated to Cape
Town.
The appellant claimed though that the complainant had willingly
relocated from the Eastern Cape to Cape Town and his reliance on the fact
that her family and uncles in particular could have exercised such consent on
her behalf is irreconcilable with his claim that she had in fact consented.
[90]
With the helpful insights of the experts on the practice of ukuthwala and
submissions of the amici, it became apparent during the appeal that the
offences for which the appellant was charged took place after a “traditional”
ukuthwala would have occurred; this is because the trafficking and sexual
assaults occurred after the customary “marriage”. Therefore the appellant
could not in any event have placed reliance on the practice of ukuthwala (in
the traditional sense) as justification for his conduct. However what he did
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