IN THE HIGH COURT OF SOUTH AFRICA 

DATE:						30 JULY 2009

In the matter between: 

WAZIER JUMAT					Appellant

and

THE STATE						

JUDGMENT

HLOPHE. JP

The difficulty with that submission is the following. If one looks at the totality of the evidence, to the extent that Mr Burgers may argue that there were some contradictions, it is clear that there were no material contradictions. To the extent that there is argument advanced that the medical evidence is not conclusive inasmuch as there could well have been injuries sustained by the complainant to her private parts, if she was having consensual sexual intercourse for the first time, this agreement is not convincing.

One must look at the totality of the evidence. In my judgment, the totality of the evidence and the circumstances of this case militates against any finding or conclusion that sex was consensual. Indeed no suggestion was made whatsoever why the complainant, who allegedly had consensual intercourse with the appellant, would immediately report that to Mr Francis, immediately after the so-called consensual intercourse. If anything, that is indicative of the fact that she did not consent to sexual intercourse.

Ms Cecil, who appeared for the State, also argued, and correctly in my view, that if one looks at the totality of the evidence, it militates against any conclusion or finding that sexual intercourse was indeed consensual. It is a well known principle of our law that if there are contradictions in the evidence of a complainant, if anything, that is an indication that the evidence was not rehearsed. And in my view, these contradictions are not material. For example, Mr Burgers made an issue of the fact that she said she was taken by her father, whereas the evidence was that she was taken by William and somebody else. If anything, that is an indication that her evidence was not rehearsed at all and she was indeed telling the truth.