Indeed,
it is common cause that the complainant did not voluntarily report the rape.
It
was her aunt, Nombeko Nyoni, who noticed that her pair of trousers was
bloodstained, and asked her. The complainant attributed the blood stains to her
menstruation. It was only after the aunt threatened her that she made a report
about the rape.
Counsel
for the applicant argued, in his heads, and before us, that such evidence of
the report by the complainant is inadmissible.
He
has a point, as the report to the aunt was induced by threats from her aunt.
Generally,
previous consistent statements are excluded because they are insufficiently
relevant. This is called the rule against narrative or self-corroboration – The
South African Law of Evidence (4th Edition) by LTT HOFFMAN and DT
ZEFFERT..., and S v Garande 2002 (1) ZLR 297 (H)...,. At..., I observed -
“A complainant in a sexual case is admitted as
an exception to this general rule. Author John Reid-Rowland in Criminal Procedure
in Zimbabwe, stated the rule in the following terms (p21-8):
'To
be admissible, the complaint must have been made at the first opportunity after
the offence which reasonably offers itself. What is reasonable will depend on
the circumstances. A great deal will depend on such factors as the complainant's
age, and the opportunity hear she had to complain to a person to whom he or she
could reasonably be expected to complain.
The
complaint must not have been induced by threats, or by leading questions,
though it need not necessarily have been spontaneous. The terms of the
complaint have to be proved, as well as the fact that a complaint was made, but
the contents of complaint may not be used as independent evidence of the facts
alleged. The complaint must give evidence of those.'
Before
previous consistent statement is admitted in a sexual case, the court has to be
satisfied that it meets these requirements.”
In
casu, the court a quo was alive to the fact that the complaint was adduced by
persistent question and threats by the aunt.
She
said so in her judgment.
She appreciated that the reluctance to disclose
the alleged rapist is attributed to a combination of two factors, namely, her
tender age, and threats by the appellant to kill her if she disclosed the rape.
In any event, the aunt's threat could not be said to have had the effect of
inducing the complainant to fabricate such an intricate story to the police,
and repeat it in her testimony in the court a quo.
