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Republic of South Africa

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

High Court Case No: A 127/2014

In the matter between:

NVUMELENI JEZILE Appellant

and

THE STATE Respondent

NATIONAL HOUSE OF TRADITIONAL LEADERS 1st Amicus Curiae

WOMEN’S LEGAL CENTRE TRUST 2nd Amicus Curiae

CENTRE FOR CHILD LAW 3rd Amicus Curiae

COMMISSION FOR GENDER EQUALITY 4th Amicus Curiae

RURAL WOMEN’S MOVEMENT 5th Amicus Curiae

MASIMANYANE WOMEN’S SUPPORT CENTRE 6th Amicus Curiae

COMMISSION FOR THE PROMOTION AND PROTECTION


OF RIGHTS OF CULTURAL, RELIGIOUS AND
LINGUISTIC COMMUNITIES 7th Amicus Curiae
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Court: Justice N J Yekiso, Justice V Saldanha et Justice J Cloete

Heard: 22 August 2014, 24 October 2014 and 5 December 2014

Delivered: 23 March 2015

JUDGMENT

The Court

Introduction

[1] On 7 November 2013 the appellant was convicted in the Wynberg regional

court on one count of human trafficking, three counts of rape, one count of

assault with intent to cause grievous bodily harm and one count of common

assault. All of the convictions pertain to a single complainant.

[2] On 13 February 2014 the appellant was sentenced to 10 years’ imprisonment

on the human trafficking count, 20 years’ imprisonment on the 3 rape counts

(which were taken together for purposes of sentence), 6 months’ imprisonment

on the count of assault with intent to cause grievous bodily harm, and 30 days

imprisonment on the count of common assault. The trial court further ordered

that 8 years of the sentence for human trafficking, as well as the sentences

imposed for the two assaults, would be served concurrently with the sentence

imposed for the rapes. The appellant was thus sentenced to an effective
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22 years’ direct imprisonment. In addition, the trial court ordered that the

appellant’s details be included in the National Register for Sexual Offenders in

accordance with s 50(2)(a) of the Criminal Law Sexual Offences and Related

Matters Amendment Act 32 of 2007 (‘the Sexual Offences Act’).

[3] The convictions all relate to a series of events which occurred over the period

January to March 2010, starting in a remote rural area of the Eastern Cape

and ending with the complainant fleeing from the appellant’s home in Philippi

near Cape Town and laying criminal charges against him.

Background

[4] The facts which became common cause during the trial are succinctly set out

in the trial court’s judgment and we can do no better than to largely repeat

them, amplifying where we consider it necessary.

[5] During December 2009 or early January 2010 the appellant, who was

28 years old at the time, departed from his residence in Phillippi for his home

village in the Eastern Cape with the specific intention of finding a girl or young

woman there in order to conclude a marriage in accordance with his custom.

His stated requirements were that the girl or young woman should be younger

than 18 years old because, over that age, she would likely have children. He

wanted a virgin. According to the appellant the ideal age for his chosen wife

was 16 years old.


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[6] During January 2010 the appellant noticed the complainant, then 14 years old,

and decided that she would make a suitable wife. They had neither spoken to

nor even been introduced to each other at that stage; and the complainant

was entirely unaware of who the appellant was or what his intentions were.

She had just commenced Grade 7 at her local school. The only reason why

the appellant even had occasion to notice the complainant was because she

had been sent by a male family member, whom she referred to as her uncle,

to fetch a cigarette for him from a house at which the appellant was present at

the time. The complainant’s father is deceased and she lived with her

maternal grandmother and other family members because her mother worked

in a nearby village or town and was only able to come home to visit at the end

of each month.

[7] On the same day that the appellant first saw the complainant, he requested

his family to start the traditional lobola negotiations with the complainant’s

family. He and two of his family members then approached the complainant’s

male family members (in a neighbouring village) to start the negotiations. It

would appear that they were concluded over the course of one day. Early the

following morning the complainant was called to a gathering of various male

members of the two families and informed by one of them, who was not known

to her, that she was to be married in another village.


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[8] The complainant was instructed by her uncle to take off her school uniform

and to put on different clothes. Her resistance to this instruction was ignored.

Her uncle thereafter took her one hand and another man the other. She was

removed from her home and taken to the house at which the appellant had

noticed her a day or so earlier. On the way to this house she was introduced

to the appellant for the first time and informed that he was to be her husband.

[9] Having arrived at the appellant’s house in his home village, the complainant

was immediately dressed in amadaki (specially designed attire for the new

bride, or makoti, which was referred to in the trial as “the makoti attire or

clothing”). She was instructed to partake in various traditional ceremonies as

well as attending to certain household duties for the appellant, which, after

resisting, she apparently did. It was during one of these ceremonies that the

complainant allegedly became the appellant’s customary law wife. At a stage

lobola of R8 000 was paid by the appellant to the complainant’s maternal

grandmother, who subsequently gave it to the complainant’s mother.

[10] The complainant was unhappy and ill at ease (the reasons and extent of this

were in issue during the trial) and left her new marital home a few days into

the marriage, hiding first in a nearby forest and then, on her mother’s

instruction, at another house. She was found and promptly returned to the

appellant by her own male family members two to three days later. Shortly

thereafter the appellant informed the complainant that he would be returning to


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Cape Town with her. This trip was sanctioned by her male family members.

They travelled from the Eastern Cape to Cape Town by taxi and after their

arrival, resided with the appellant’s brother and his wife in their shared home

in Phillippi. During the period in which the complainant resided with the

appellant in Cape Town, he would leave each morning to seek employment

while she was required to remain behind and attend to household chores.

[11] Sexual intercourse took place between them on various occasions (the

complainant maintained that there were seven such occasions within a matter

of a few days after their arrival in Cape Town, all of which were against her

will). Within the same period the appellant and complainant argued. During

one of their arguments the complainant sustained an open wound to her leg. It

was shortly thereafter that the complainant fled from the appellant on 2 March

2010. On the same date she reported the events to the police, who took her to

be examined by a doctor on 3 March 2010.

[12] At issue in the trial were the following:

12.1 Whether the complainant travelled willingly with the appellant from the

Eastern Cape to Cape Town, and remained in Cape Town willingly with

him until she fled, or whether she was trafficked to Cape Town by the

appellant for purposes of exploitation or abuse of a sexual nature;


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12.2 Whether sexual intercourse took place on at least three occasions; and

if so, if this was with the complainant’s consent (her age would only

become relevant for purposes of a conviction on statutory rape if it was

found that she had consented – although she was 14 years old, the

appellant claimed that she told him that she was 16 years old); and

12.3 Whether the injury that she sustained to her leg was caused by the

appellant.

[13] It should be noted that, although the complainant testified about seven rapes,

all of which occurred after her arrival in Cape Town, the appellant was only

charged with three rapes. Furthermore, on his own version, sexual intercourse

occurred on two occasions. According to the appellant, sexual intercourse

took place once before they left the Eastern Cape and once after their arrival

in Cape Town. This is also relevant when considering the conviction on the

human trafficking count.

The evidence in the court a quo

[14] The state adduced the evidence of four witnesses, namely the complainant,

her mother, the police reservist who had taken her statement and Dr Narula

who had examined her on 3 March 2010. The appellant (who had exercised

his right to make no admissions at the outset or to provide an explanation for

his plea of not guilty) testified in his own defence. He called two witnesses,
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namely his sister-in-law (with whom he and the complainant had resided in

Cape Town) and Professor Francois De Villiers, an expert in customary law.

Given the common cause facts, what follows is a summary of the evidence of

the various witnesses on the disputed issues only.

[15] The complainant testified that during her errand to fetch a cigarette for her

uncle, one of the two men who she met there had asked her to identify herself

by her name which he already knew. She became suspicious and when she

returned with the cigarette, pleaded with her uncle never to force her into a

customary marriage. She knew that this had happened to a number of other

young girls and dreaded the prospect of it occurring to her.

[16] Whilst being forcibly restrained by being held by her arms en route to her

“marriage” by her uncle and the appellant’s family member (a considerable

distance away) she cried and pleaded but was instructed by her uncle to stop.

She was then handed over to the appellant and two of his family members

who they met along the way. She was similarly restrained by them for the

remainder of the journey to the appellant’s village.

[17] After being instructed to put on her amadaki, the complainant was told to sit

behind a door, thereafter to eat and later to spend the night with the appellant.

When she refused to eat the appellant’s brother threatened her with a stick.

She again protested and he left her alone. She wept and told the appellant
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that she did not want to be his wife, nor did she want to sleep with him. She

ended up sleeping on the same bed as the appellant, wrapped in a blanket,

but faced away from him.

[18] The complainant’s first attempt to escape was the following morning when she

accompanied a female relative of the appellant to fetch water from a nearby

river. She changed out of her amadaki in bushes nearby and ran away. She

was chased by the appellant who caught and questioned her. She pretended

that she had been practicing for a sporting event. The appellant instructed her

to return with him to his home. She was thereafter ordered to make tea but

refused. A sheep was slaughtered and she was given something to drink. She

threw the drink away.

[19] The complainant’s second attempt at escape was that evening when, on the

pretext of fetching water to wash herself, she again ran away. She sought

shelter at a relative’s house but was turned away. The relative told her that

another young girl had previously hidden there but had been found and

returned to her “husband”. The complainant slept in a forest and hid there for

the following day. That evening she walked the long journey back to her home

village. On her arrival she saw that certain members of her family were still

awake. She was afraid to go inside because she feared that she would be

caught by the male family members and returned to the appellant. She slept

outside in the garden and hid in bushes the next day.


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[20] She encountered a woman who told her that her mother had returned to the

village and was looking for her; and that it was safe to return home because

her mother was alone there. When the complainant returned, her mother

asked if she wanted to be married. She replied that she did not, and that she

wanted to return to school. Her mother told her to pack a suitcase. The

arrangement was that the complainant was to hide in a nearby family house

and then take a taxi to join her mother in the village where she worked.

However the complainant was found in that house by her uncle and various

other men, some of whom were relatives, and taken back by them to the

appellant.

[21] Upon her arrival back at the appellant’s house she was told by the appellant

and his uncle to dress herself again in her amadaki. When she refused, they

beat her with a sjambok and sticks until she agreed. She later overheard that

she would be leaving with the appellant for Cape Town the following day. She

was neither consulted nor even informed herself of this.

[22] That night the appellant asked her for sexual intercourse. She refused. When

she awoke the following morning a taxi was waiting outside and she was told

that she was to leave immediately with the appellant for Cape Town. She

refused. She was made to get into the taxi against her will by the appellant

and his relatives. She arrived in Cape Town (a city completely foreign to her).
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This occurred sometime towards the end of February 2010.

[23] That evening she again refused to eat when instructed by the appellant, his

brother and sister-in-law to do so. She also again refused to have sexual

intercourse with the appellant. The appellant’s brother told her that she would

have to have intercourse with the appellant because she was his wife. Again

she refused. The appellant’s brother held her down while they removed her

panties. She was struggling and the appellant proceeded to rape her. After the

rape the appellant’s brother returned to his own room. The following morning

the appellant and his relatives left for the day and she was locked in the

house. She could not leave the house because the front door and gates were

kept locked at all times. During the course of her being locked up by the

appellant she told him that she wanted to attend school. He refused, saying

that he did not want an “educated wife”.

[24] That evening she again refused to eat. She was told to draw a bath for the

appellant. She complied but refused his instruction to take out fresh clothes for

him. The appellant told her to come to bed and she refused. He locked the

bedroom door and took off his belt. He slapped her hard and she fought back.

The appellant hit her with both an aluminium handle of a mop or broom, which

broke, as well as with his belt. During their scuffle she sustained an open

wound to her leg. The appellant held her down and raped her for the second

time. Later that night he raped her a third time. In the early hours of the
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following morning he raped her a fourth time. She was again locked in the

house that day while the appellant and his relatives attended church.

[25] Upon their return the complainant was chastised for refusing to wear the

amadaki headscarf. She refused to cook when instructed. She also refused to

eat. That evening the appellant locked their bedroom door and demanded

sexual intercourse. She refused and he raped her a fifth time. After she had

washed herself, he raped her a sixth time. Early the following morning he

raped her for the seventh time.

[26] Before the appellant and his relatives left the next day, the complainant took

R100 cash out of his wallet. She asked the appellant’s sister-in-law not to lock

the doors and gates on the pretext that she wanted to wash clothing. The

sister-in-law only locked the outside gate when they left. The complainant

washed herself and packed a few items of clothing in a bag. She took a

dustbin to the corner of the yard in order to jump over the fence. She jumped

over the fence and she took a taxi to the nearest taxi rank. There she met two

women. She showed them the wound to her leg. One of the women called the

police who arrived and took her to the police station. Her mother was

contacted. She slept at the police station that night and was taken to the

doctor the following morning. Her brother, who lives in Cape Town, then

fetched her.
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[27] The complainant was found by the trial court to be an excellent witness whose

version was not undermined in any material respect. She was still visibly

traumatised when testifying almost two years after the events.

[28] The complainant’s mother’s testimony may be summarised as follows. During

February 2010 she discovered that the complainant had been given away in a

customary marriage by her own mother and brother (who is the uncle to whom

the complainant referred during her testimony). She would never have

consented to the complainant’s “marriage” because she was too young. She

went home the following week to discover that the complainant was indeed no

longer there. She could obtain very little information as to who the complainant

had “married” or where she was. Lobola of R8 000 was paid to the maternal

grandmother, and in turn later handed to her. The complainant’s mother

subsequently ascertained that the complainant had run away from her “marital

home” when the appellant came to inform her brother. Despite her search the

complainant could not be found. On the following day she received information

that the complainant was hiding in a forest and sent word for her to come

home at a time when her mother and brother would not be there. The

complainant returned in an hysterical state, crying uncontrollably. She told her

mother that she did not want to be married and that the appellant was a violent

man. She told the complainant to pack a bag and early the next morning sent

her to hide at her family house until she could borrow money to send the

complainant by taxi to where she worked.


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[29] However, her brother and other male family members discovered the

complainant and returned her to the appellant. She herself was too scared of

the men to interfere, but noting the child’s distress, begged her not to take her

own life. After the male family members returned from delivering the

complainant to the appellant for the second time, she was told that the

complainant would be leaving for Cape Town with her new “husband” the

following day. The complainant had telephoned her from Cape Town about a

week or two later. She repeated that she did not want to be with the appellant

and that he was violent. She asked the complainant to persevere until she was

able to fetch her in Cape Town. The appellant called her shortly thereafter

reporting that he had hit the complainant with a mop handle, but claimed that

the complainant was not seriously injured. A day or so later the appellant

contacted her again to report that the complainant had disappeared while he

was at work. That night she was contacted by the police.

[30] Reservist Constable Tengiwe testified that she was on duty on 2 March 2010.

The complainant arrived at the trauma section of the police station with two

police officials. The complainant told her that she had been forced into

marriage in the Eastern Cape and recounted what had happened to her. The

complainant limped, had a deep wound on her thigh that was starting to heal

and a bruise on her back. The complainant told her that she had sustained

these injuries when the appellant had assaulted her with a mop or broom
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handle when they had argued about her refusal to have sexual intercourse.

The complainant reported that she did not wish to be married to the appellant.

She wanted to be with her mother and return to school. Her mother was

contacted and the complainant was taken to a doctor.

[31] Dr Narula testified that she had examined the complainant on 3 March 2010.

The complainant appeared traumatised, fearful and tearful, still wearing her

amadaki dress. During examination Dr Narula noted a huge gaping wound on

the lower thigh that had become septic, as well as two healing abrasions on

the complainant’s left forearm and a haematoma on her toe. On

gynaecological examination she found a healing tear of the hymen, scarring of

the posterior fourchette, redness at the hymen and bilateral vestibular redness

of the vagina, as well as vaginal discharge. Her findings were compatible with

the history given as well as recent forceful vaginal penetration by a penis or

object. Dr Narula testified that the complainant was a virgin prior to sustaining

the gynaecological injuries.

[32] Dr Narula referred the complainant to the hospital’s casualty unit to manage

her leg wound. The wound was irrigated and dressed and the complainant

was given a tetanus injection and antibiotics. She was also referred to a social

worker because she was so obviously traumatised. It was Dr Narula’s opinion

that the open leg wound was consistent with the complainant having been

assaulted with the handle of a mop or broom, and that the injuries on her arm
16

and foot were consistent with the complainant having been assaulted with a

belt.

[33] The appellant testified of the complainant’s visible unhappiness on their first

night together. His evidence was that on the second night (while still in the

Eastern Cape) he asked for sexual intercourse and this took place apparently

with her consent. Thereafter he could ‘see a difference’ in the complainant. If

his memory served him correctly she only disappeared after about a week. He

went to her home to report this to the complainant’s uncle, who told him not to

bother to keep looking for her because he (the uncle) would ensure her

prompt return to the appellant as soon as she was found.

[34] The complainant was indeed returned to the appellant by her male family

members two days later. The reason which she gave for running away was

that she had been afraid to ask for permission to visit her family and had thus

sought to ‘escape’ from the appellant. He told her that there was no need to be

afraid because his family would have granted her permission. However he was

planning to return to Cape Town. According to the appellant, the complainant

there and then willingly agreed to accompany him. They mutually agreed upon

their date of departure and left for Cape Town a week later. By the time of

their arrival in Cape Town he claimed that they ‘were getting along very well’.
17

[35] On the second night in Cape Town the appellant again asked for sexual

intercourse and the complainant willingly complied. It was only after the

complainant received a telephone call from a female relative on the following

day that her attitude changed towards him. She became ‘very cheeky and she

was not respectful’ and told him that she was no longer his makoti.

[36] There were a number of arguments over the days which followed. During one

of these the appellant ‘lost control’ and grabbed a mop handle with which he

threatened the complainant. During their ensuing scuffle the handle broke and

struck the complainant’s leg. He was so shocked and concerned about the

complainant that he arranged for his sister-in-law to take her to a doctor for

treatment (on two separate occasions). About two days after the second visit

to the doctor the complainant ran away.

[37] The appellant maintained that he had never assaulted the complainant with a

belt. He only aimed the mop handle at her and it was because she wrestled

with him that it broke and injured her. He never raped the complainant. His

brother had never held her down so that the appellant could rape her. He

never instructed anyone to keep her locked in the house during the day. The

complainant never expressed the wish to return to school. He was puzzled by

the complainant’s allegations against him. His testimony was that:


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‘I’m deeply hurt, because… I don’t know what I am going to do about this,
because now even what has happened between the two of us, we didn’t just
do it of our own or elope and go and get married, we involved the elders and
this is a traditional wedding.’

[38] The appellant was not unduly concerned when the complainant ran away in

the Eastern Cape. He testified that:

‘This is a normal thing, always when a makoti is a newlywed, normally she


does do those things of running away and coming back, running away and
they bring her back, but when the time goes on, she settles down and stays…’

[39] The appellant’s sister-in-law testified that she had not noticed any problems

between the appellant and the complainant during their time together in Cape

Town. The complainant had not expressed any unhappiness or concerns. The

complainant had in fact told her that she did not wish to return to school

because she hated it. She had never locked the complainant in the house.

She knew about the wound to the complainant’s leg which she described as

serious, and maintained that the complainant had blamed herself for the injury.

She had taken the complainant to the doctor for treatment. She was ‘amazed’

by the complainant’s allegations against the appellant. The complainant had

told her that she had run away in the Eastern Cape ‘because she didn’t want

to get married [at] that time, she just wanted to have a good time and fun as a

single woman’. The complainant had subsequently changed her mind and

decided to remain “married” to the appellant.


19

[40] The appellant’s defence was thus one of consent. He maintained that the

complainant had willingly engaged in sexual intercourse on the only two

occasions (spanning weeks) that he had requested this. She willingly travelled

with him to Cape Town. She willingly remained alone in a house for days on

end in a place completely foreign to her without any friends or support system,

attending to chores and other duties for him. She never expressed the wish to

return to school. On the contrary, her wish was to abandon her education. The

appellant never forced himself upon her or abused her in any way; his

testimony in this regard was contradictory: on the one hand he maintained that

he had only asked for sexual intercourse twice; later in his evidence he

conceded that there had been other occasions too but that he had not forced

himself upon the complainant when she declined.

[41] He also maintained that the complainant had only herself to blame for her leg

wound. All that he had done was to discipline her when she became defiant

and disrespectful after having a telephone conversation with a female relative.

She knew that in their culture a “wife” was required to be completely

submissive to her “husband”. The following portion of the record is relevant:

‘Okay so … did you buy yourself a wife? Did you pay her family money for
her? --- No, I didn’t. No. According to the culture you don’t buy a wife. You pay
lobola for her, not buying.
Yes, but the lobola is so that she can be your wife. --- Yes, in that manner you
20

pay lobola.
As your wife did it mean that she had to do as you told her? Was she a sub-
ordinate to you? Did she have to listen to you as being your wife? --- That is
right yes.’

[42] However there was an additional and important element to the appellant’s

testimony. He maintained that the process which he had followed to obtain a

“wife” was that of his culture and tradition. His testimony was as follows:

‘Okay, Mr Jezile, is there anything else that you would like to explain to this
court? --- What I wanted from them, that of my heart is to get a wife and then
to use the protocol, to do the right thing, involve the elderly people so that I
can get a wife that I can stay with, not at all there to play … (indistinct) to. And
I wanted to follow the tradition and do the right things and follow my fathers
and my forefathers, to do things according to our tradition.’

[43] Significantly the appellant’s evidence was that he believed that his custom did

not permit forced marriages, and thus if the complainant had ever truly

expressed the wish not to marry him or remain married to him, she would have

been free to leave. This evidence conflicted with that of the appellant’s last

witness, Professor Francois De Villiers, who was called as an expert in

customary law.

[44] His opinion was that the process followed by the appellant to obtain a “wife”

was, broadly speaking, in accordance with traditional custom, although it was

common cause that there had been no compliance with the provisions of the

Recognition of Customary Marriages Act 120 of 1998. Professor De Villiers


21

referred to this non-compliance as a ‘defect’. His evidence was further that

historically women and girls could indeed be forced into these “marriages”. It

was in this context that he testified generally about the tension between

traditional practices and constitutional imperatives, and that various legislative

measures had been implemented to safeguard against such occurrences.

The trial court’s judgment on conviction

[45] In evaluating the evidence the magistrate, mindful of the cautionary rules

pertaining to a single, youthful witness such as the complainant, found her

testimony to be both honest and reliable. She found that there was no

evidence to suggest that the complainant had willingly left her home without

her mother’s knowledge or consent to be married to a complete stranger twice

her age. The undisputed evidence was that the mother’s views and wishes

would in any event have been disregarded by the complainant’s male

relatives. This was borne out by the mother’s futile attempt to protect the

complainant. The mother’s evidence corroborated that of the complainant

about the latter’s attitude towards the “marriage”, and her escape from the

appellant within days of it taking place. The trial court concluded that it was

inconceivable that the complainant would willingly have subjected herself to

the “marriage”. It was even the appellant’s evidence that the complainant was

unhappy and ill at ease after her arrival at the “marital home”.
22

[46] The trial court also found that the appellant’s version of events leading up to

the departure for Cape Town was not supported by the objective facts. The

complainant had tried to escape from the appellant twice before being brought

to Cape Town. On neither of these occasions had she willingly returned to the

appellant. Not even the appellant suggested that she was content to be

brought back to him by her male relatives. The trial court thus reasoned that it

was highly improbable that the complainant would have willingly boarded a

taxi for a destination completely unknown to her with a man who was still a

virtual stranger, whom she had described to her mother as violent, within a

day or so after having being forced to return to him.

[47] The trial court accepted the complainant’s version of events after her arrival in

Cape Town. Her evidence about the assaults and at least some of the rapes

was corroborated by the findings of Dr Narula. The court pointed out that

Dr Narula’s observation that the complainant’s leg wound was septic

supported the latter’s evidence that she had not received any medical

treatment, contrary to the assertions of the appellant and his sister-in-law.

[48] It was also the trial court’s finding that if the complainant had indeed enjoyed

freedom of movement at the appellant’s house in Phillippi, as he alleged, it

was most improbable that, injured as she was, she would have gone to the

lengths that she did to escape him at the first opportunity. Furthermore, if the

appellant’s version was to be believed, the complainant could simply have told
23

him that she wished to leave and he would not have stood in her way.

[49] The trial court accepted that even on the appellant’s version he knew that he

had no right to force the complainant into anything against her will, which

effectively put paid to any doubt being cast on his mens rea given the court’s

acceptance of the complainant’s version.

[50] The appellant’s sister-in-law was found to be a lying witness whose evidence,

along with that of the appellant, was rejected as patently false. The appellant

was thus convicted on the counts to which we have referred.

Appeal against conviction

[51] The appellant thus raised as one of his defences and grounds of appeal to the

charges of trafficking and the rapes, that he was in a customary marriage with

the complainant at the time of the incidents. The magistrate was however of

the view that the matter was not about “…the practice of ukuthwala or forced

arranged marriages and its place if any, in our Constitutional Democracy.

Rather, this case is about whether the state proved that the accused

committed the offences he is charged with and if so whether he acted with the

knowledge of wrongfulness and the required intent. To this extent only,

reference to the so-called marriage will be made from time to time.” On appeal

the appellant contended that the approach adopted by the magistrate to the

relevance of customary law amounted to a misdirection and that “…having


24

done so … fresh out of the starting blocks [this] demonstrates a lack of

understanding.”

[52] The appellant advanced two main grounds of appeal against his convictions.

Apart from that relating to the two assaults, his essential contention was that

the trial court had misdirected itself in not proceeding from the premise that the

merits should have been determined within the context of the practice of

ukuthwala, or customary marriage. It was submitted that “consent” within the

practice of ukuthwala is a concept that must be determined in accordance with

the rightful place which customary law has in our constitutional dispensation,

because it is an integral part of ukuthwala that the “bride” may not only be

coerced, but will invariably pretend to object (in various ways) since it is

required, or at least expected, of her to do so. As the appellant’s counsel put it

in his heads of argument:

‘[This] informs the intention of the male and the most relevant factor in terms
of Xhosa custom [is] whether the sexual violation of the female is criminal or a
sanctioned form of coercion…depending on the permutation the consent of
the female [is] irrelevant…’

[53] Insofar as the two convictions for assault are concerned, it was submitted on

behalf of the appellant that, even if his version was to be rejected, the

convictions themselves amounted to a splitting of charges, given that both

assaults took place as part and parcel of one “overall” assault to compel the

complainant to submit to sexual intercourse.


25

[54] We were of the view that, given the nature and the importance of the

customary law issue raised in the appeal and the constitutional implications

thereof, it was appropriate that relevant state institutions, organizations and/or

experts on the practice of ukuthwala in customary law be invited to apply to

assist the court as amicus curiae on the specific issues of customary

marriages and the practice of ukuthwala. To that end letters of invitation were

sent under the hand of the presiding judge to a number of organizations who

had an interest or expertise on the topic to apply in writing to participate in the

proceedings as amici curiae and to present oral submissions with regard to

such applications.

[55] The appellant and the respondent were afforded the opportunity of responding

to the applications. In response, the court was favoured with offers of

assistance by the following institutions:

55.1 The National House of Traditional Leaders, a statutory body

established in terms of the National House of Traditional Leaders Act

No 22 of 2009, with its main objective being to represent and advance

the aspirations of traditional leaders and their rural communities at a

national level;1

1 Notice of application to be admitted as Amicus Curiae, affidavit by Inkosi Sipho Etwell Mahlangu, p 3
para 5.
26

55.2 the Woman’s Legal Centre Trust, a non-government, legal advocacy

and litigation organization with its core objective being the

advancement and protection of the human rights of all women and girls

in South Africa, and particularly women and girls who suffer

intersecting forms of disadvantage and discrimination;2

55.3 the Centre for Child Law, based at the University of Pretoria, a

registered law clinic that promotes and protects the constitutional rights

of children through advocacy and litigation;3

55.4 the Commission for Gender Equality, a Chapter 9 institution established

under the Constitution4 with a broad mandate to promote respect for

gender equality and the protection, development and attainment of

gender equality;5

55.5 the Rural Women’s Movement, an independent non-profit land and

property rights organization that advocates for women’s independent

land, housing, inheritance and property rights and advocates policy

reform in respect of rural women;6

2 Affidavit by Ms.Hoodah Adrahams-Fayker, p 5, paras 4 and 5.


3 Written Submissions by the CCL, p 3 para 1.
4
Sections 181 and 187 of Act No. 108 of 1996.
5 Affidavit by the chairperson Mr. Dizline Mfanozelwe Shozi, p 4 para [9].
6 Affidavit by Shozi, p 5 para [13].
27

55.6 Masimanyane Women’s Support Centre, a non-profit international

women`s organization that works for the advancement of the rights of

women and girls with a specific focus and expertise in the application of

the Convention on the Elimination of all Forms of Discrimination against

Women (adopted in 1979 by the UN General Assembly, ratified by the

SA Government on 15 December 1995);7 and

55.7 the Commission for the Promotion and Protection of the Cultural,

Religious and Linguistic Communities, a state institution established in

terms of Chapter 9 under the Constitution8 to promote respect for and

protect the rights of cultural religious and linguistic communities.9

Neither the appellant nor the respondent opposed any of the applications and

having considered the submissions made on behalf of the applicants each of

them were admitted as amicus curiae by the court in the appeal proceedings.

The amici were allowed to submit evidence on the practice of ukuthwala under

customary law by way of affidavit to which the appellant and respondent were

entitled to respond.

[56] At the outset we wish to express our gratitude and appreciation to the amici

and the parties for their assistance to the court in dealing with the complex

7 Affidavit by Shozi, p 6 paras [18] and [19].


8 Sections 181 and 185
9 Affidavit by Shozi, p 7 paras [21]-[23].
28

and contested issue of ukuthwala under customary law. We are particularly

mindful that the practice of ukuthwala has in recent years received

considerable public attention and is the subject of much public debate,

inasmuch as its current practice is regarded as an abuse of traditional custom

and a cloak for the commission of violent acts of assault, abduction and rape

of not only women but children as young as eleven years old by older men.

These practices – under the guise of custom - have been described by several

organisations as a “harmful cultural practice”.10

Legal framework

[57] Before turning to the submissions of the parties and amici curiae, we set out,

in broad outline, the relevant constitutional and legislative provisions, as well

as relevant conventions and / or protocols to which South Africa is a signatory.

[58] S 211(3) of the Constitution provides that:

‘The courts must apply customary law when that law is applicable, subject to
the Constitution and any legislation that specifically deals with customary law.’

[59] S 28(1)(d) [in the Bill of Rights] stipulates that every child has the right to be

protected from maltreatment, neglect, abuse or degradation; and s 28(2) that a

child’s best interests are of paramount importance in every matter concerning

10 Submission made by the second amicus curiae, record p 652, para [12] with reference to their submission
made to the South African Law Commission (SALC) – November 2009; and see Discussion Paper under
Project.
29

the child. A child is defined in s 28(3) as a person under the age of 18 years.

[60] S 39 of the Constitution, which deals with the interpretation of the Bill of

Rights, provides that:

‘39(1) When interpreting the Bill of Rights, a court, tribunal or forum


(a) must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.

(2) When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law, customary
law or legislation, to the extent that they are consistent with the Bill.’

[61] S 1 of the Children’s Act 38 of 2005 (“Children’s Act”) defines ‘trafficking’ in

relation to a child as including:

‘(a) The … transportation, transfer, harbouring or receipt of children, within


or across the borders of the Republic –
(i) by any means, including the use of threat, force or other forms of
coercion, abduction…abuse of power or the giving or receiving of
payments or benefits to achieve the consent of a person having
control of a child; or
30

(ii) due to a position of vulnerability,


for the purpose of exploitation…’

[62] The following provisions of the Children’s Act are also relevant:

62.1 S 12(1), which stipulates that every child has the right not to be

subjected to social, cultural and religious practices which are

detrimental to his or her well-being;

62.2 S 284(1), which prohibits child trafficking;

62.3 S 284(2), which provides that it is no defence to a charge of

contravening s 284(1) that the child or a person having control over

that child consented to the intended exploitation;

62.4 S 305(1)(s), which makes a contravention of s 284(1) an offence; and

62.5 S 305(8), which provides that any person convicted of an offence in

terms of s 305(1)(s) is, in addition to a sentence for any other offence

of which he or she may be convicted, liable to a fine or imprisonment

for a period not exceeding 10 years or to both a fine and such

imprisonment.
31

[63] There are a number of statutory provisions in the Sexual Offences Act

(referred to supra) which are relevant:

63.1 S 3, which defines the offence of rape;

63.2 S 56(1), which stipulates that it is not a valid defence to rape to rely on

the existence of a ‘marital or other relationship’;

63.3 S 56(8), which appears to be the only limitation in relation to criminal

liability in respect of cultural practices in the Act, and provides that a

person may not be convicted of an offence in terms of s 9 or s 22

(exposing bodily parts) if that person commits such an act ‘in

compliance with and in the interests of a legitimate cultural practice’;

63.4 Part 6 (ss 70-72), which contain the transitional provisions pertaining to

trafficking in persons for sexual purposes, pending the adoption of

legislation in compliance with the Protocols referred to therein. These

include (with reference to the preamble to the Act) the UN Convention

on the Elimination of All Forms of Discrimination against Women of

1979 and the UN Convention on the Rights of the Child, 1989 (CRC).

South Africa, as a member state, is obliged to combat and ultimately

eradicate abuse and violence against women and children;


32

63.5 S 70(2)(b), which defines the offence of trafficking in similar terms to

that contained in the Children’s Act. S 70(2)(b)(6) includes trafficking by

means of ‘the abuse of power or of a position of vulnerability, to the

extent that the complainant is inhibited from indicating his or her

unwillingness or resistance to being trafficked…’;

63.6 S 71(1), which makes the trafficking of any person without their consent

an offence;

63.7 Ss 71(3) and (4), which stipulate that consent can only be ‘voluntary or

uncoerced’ as defined therein, and excludes a person submitting to an

act as a result of being trafficked; and

63.8 S 56A(2), which provides that the court imposing sentence ‘shall

consider as an aggravating factor’ that the person: (a) committed the

offence with the intention to gain financially, or receive any favour,

benefit, reward, compensation or any other advantage; or (b) gained

financially, or received any favour, benefit, reward, compensation or

any other advantage, from the commission of such offence.

[64] It is noted that the Prevention and Combatting of Trafficking in Persons Act 7

of 2013 was assented to on 28 July 2013 but has still not been enacted. The

following provisions are of relevance to the extent that they indicate the
33

legislature’s attitude towards trafficking in compliance with South Africa’s

international obligations. S 4(2) creates as a separate offence, a person

concluding a forced marriage for the purpose of exploitation of a child or other

person. S 11(1)(a) stipulates that consent of the other person is no defence.

S 13 imposes hefty penalties including life imprisonment (subject to s 51 of Act

105 of 1997). S 14 lists the ‘aggravating factors’ that a court must consider in

sentencing (in addition to any other factors) and include: (a) whether the victim

was held captive for any period; (b) whether the victim suffered abuse and the

extent thereof; (c) the physical and psychological effects the abuse had on the

victim; and (d) whether the victim was a child. ‘Forced marriage’ is defined as

‘a marriage concluded without the consent of each of the parties to the

marriage’, but ‘marriage’ itself is not defined.

[65] The Recognition of Customary Marriages Act 120 of 1998 (‘RCMA’) was

enacted to recognise customary marriages in accordance with South Africa’s

constitutional obligation, and contains mandatory requirements for a valid

customary marriage11.

[66] S 3(1) lists these three requirements, namely that: (a) the prospective spouses

must both be over the age of 18 years; (b) must both consent to be married to

11
The preamble records: “To make provision for the recognition of customary marriages; to specify the
requirements for a valid customary marriage; to regulate the registration of customary marriages; to
provide for the equal status and capacity of spouses in customary marriages; to regulate the proprietary
consequences of customary marriages and the capacity of spouses of such marriages; to regulate the
dissolution of customary marriages; to provide for the making of regulations; to repeal certain provisions
of certain laws; and to provide for matters connected therewith.”
34

each other under customary law; and (c) the marriage must be negotiated and

entered into, or celebrated, in accordance with customary law. S 3(3)(a)

stipulates that if either of the prospective spouses is a minor, both his or her

parents, or if he or she does not have parents, his or her legal guardian, must

consent to the marriage. S 3(4)(a) confers on the Minister the power to grant

permission to a person under the age of 18 years to enter into a customary

marriage if he or she considers such marriage to be desirable and in the

interests of the parties in question, where either prospective spouse is below

the age of 18 years. However this does not relieve the parties to the proposed

marriage of their obligations to comply with all other requirements prescribed

by law).

[67] S 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4

of 2000 prohibits unfair discrimination against any person on the ground of

gender, including: (a) gender-based violence; and (b) any practice, including

traditional, customary or religious practice, which impairs the dignity of women

and undermines equality between women and men, including undermining the

dignity and wellbeing of female children.

[68] South Africa has also signed and ratified a number of international

conventions and protocols:


35

68.1 The Universal Declaration of Human Rights, which includes a clause

that marriage shall be entered into only with the free and full consent of

the intending spouses;

68.2 The UN Convention on the Elimination of All Forms of Discrimination

Against Women (CEDAW), which requires member states to take all

appropriate measures to: (a) modify the social and cultural patterns of

conduct of men and women, in order to eliminate prejudices and

discriminatory customary and other practices (art 26); (b) implement

legislation to supress all forms of trafficking in women (art 5);

(c) eliminate discrimination against women in all matters relating to

marriage and family relations, and in particular to ensure, on the basis

of equality of men and women, the same right to enter into marriage

with free and full consent (art 16(1));

68.3 The UN Protocol to Prevent, Suppress and Punish Trafficking In

Persons, Especially Women and Children, supplementing the UN

Convention against Transnational Organised Crime (“Trafficking

Protocol”) which compels member states to make trafficking in persons

a criminal offence;

68.4 The Protocol to the African Charter on Human and People’s Rights on

the Rights of Women in Africa, which is to similar effect as CEDAW;


36

68.5 The CRC (referred to supra) which stipulates that member states: (a)

shall take effective and appropriate measures with a view to abolishing

traditional practices prejudicial to the health of children (art 24(3)); and

(b) shall protect children against all forms of exploitation, including

trafficking (arts 34 and 35);

68.6 The African Charter on the Rights and Welfare of the Child (ACRWC) in

terms of which: (a) child marriage or betrothal is prohibited (art 21(2));

and (b) sexual exploitation and the inducement, coercion or

encouragement of a child to engage in any sexual activity is likewise

prohibited (art 27). Member states must take all appropriate measures

to prevent the abduction, sale or trafficking of children for any purpose,

in any form, and by any person including parents or legal guardians of a

child (art 29);

68.7 The Optional Protocol to the Convention on the Rights of the Child on

the Sale of Children, Child Prostitution and Child Pornography. Art 2

thereof defines the sale of children as follows:

‘(a) Sale of children means any act or transaction whereby a child is


transferred by any person or group of persons to another for
remuneration or any other consideration…’ and
37

68.8 The Addis Ababa Declaration on Ending Child Marriage in Africa of

11 April 2014, prepared by the African Committee of Experts on the

Rights and Welfare of the Child (ACERWC) under the auspices of the

African Union.

[69] There is accordingly an abundance of clear authority to the effect that child

trafficking, and any form of child abuse or exploitation for sexual purposes, is

not to be tolerated in our constitutional dispensation. This is furthermore borne

out by the provisions of s 51 as read with Part 1 of Schedule 2 of Act 105 of

1997 to which we refer hereunder.

Submissions of the parties and the Amici Curiae

[70] In August 2009, the South African Law Commission (the SALRC) was

requested by the Gender Directorate in the Department of Justice and

Constitutional Development to include as a priority in its law reform program

an investigation into the practice of ukuthwala.12 The SALRC requested that

the following aspects be included in the investigation: the impact of ukuthwala

on the girl child; the appropriateness, and the adequacy, of the current laws on

ukuthwala; and whether or not the laws upheld the human rights of the girl

child (taking into consideration the principle of “the best interests of the

12 Affidavit filed by Professor Ronald Thandabantu Nhlapo deposed to in his personal capacity and in support
of the submissions of the fourth, fifth, sixth and seventh applicants, page 6 of the record.
38

child”).13 The amici and parties also very helpfully referred the court to a

number of academic articles in law journals and newspaper reports about the

practice of ukuthwala, narratives of instances of abuse of young children and

opinions on the constitutionality of the practice of ukuthwala.

[71] In the affidavit filed on behalf of the National House of Traditional Leaders

(NHTL), Inkosi Sipho Etwell Mahlangu, a senior traditional leader of the

Ndzundza Mabusa Traditional Community and leader of the delegation from

Mpumalanga to the National House of Traditional Leaders, stated that as a

result of the confusion surrounding the practice of ukuthwala, the NHTL

proactively, and together with customary law experts from various

communities in South Africa, produced a White Paper on the practice. The

White Paper has been submitted to Parliament for consideration.14 We are

13 Annexure RTN2 to the affidavit of Nhlapo, pp 28-89. A Discussion paper, Project 138 titled “The Practice
of Ukuthwala” was issued in May 2014 with the closing date for public comment as 31 st October 2014.
14 The deponent referred to the following as the outline of the proposed policy on ukuthwala ;
“58. The following is an outline of the proposed policy on ukuthwala:
(58.1) The need for the policy has arisen due to the abuse of the culture by some in the Eastern Cape,
where the appellant originates.
The more prevalent cases are of old men abducting young girls and raping them, well below the
age of marriage in terms of the Act.
(58.2) A most unfortunate phenomenon is where the parents of the girl enter into an agreement with
the old men, for financial gain. A most telling characteristic of this form of abduction is for the girl
to be raped as soon as she arrives. An occurrence that is not permitted in ‘ukuthwala’”.
The objectives of the policy are stated as :
 To regulate ukuthwala custom to make sure that it is consistent with the Constitution in particular the Bill of
Rights and sections 7(2), (9 (3) and (4), 28 and 31 of the Constitution and sections 8 and 25(1)(c) and
Chapter 5 of the Promotion of Equality and the Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of
2000) and Article 13 of the Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW);
 To criminalize actions related to the abductions and kidnapping of women and girl children in the name of
ukuthwala and any actions which are inconsistent with the Constitution and applicable indigenous African
law;
 To promote popular education on ukuthwala, its guiding principles and safeguards; and
 To influence amendments to the Recognition of Customary Marriages Act, (Act No. 120 of 1998).
 To develop a legislation on Harmful cultural practices.”
39

therefore also mindful that the practice is receiving the attention of not only the

affected communities, but also relevant statutory bodies, organs of civil society

and both the executive and legislature.

[72] It is not necessary for purposes of this judgment to set out in detail the

contents of the evidence presented by the amici in their affidavits. What is of

significance though are the common threads in the evidence of the experts,

activists and in the submissions of all the amici with regard to the practice of

ukuthwala in both its traditional conception and the present and prevailing

practice of the custom. Professor Ronald Thandabantu Nhlapo, a renowned

expert on customary law, and author of several publications on the topic who

chaired the advisory committee that assisted the SALC in the development of

the Discussion Paper in Project 138, explained in an affidavit that it was critical

to understand that customary law posits both regular and irregular means of

initiating and concluding a customary marriage. Ukuthwala is one such

irregular method which would, if the precepts of the custom were correctly

followed, eventually lead to the conclusion of a valid marriage under

customary law. Nhlapo explained that the regular method for the conclusion of

a customary marriage entails a proposal of marriage by the intended

bridegroom’s family, which is extended to the family of the intended bride, and,

if accepted, negotiations with regard to the payment of lobola by the betrothed

man’s family to the betrothed woman’s commences. Once the negotiations are

concluded and the lobola fixed, a series of what he termed “highly ritualized
40

ceremonies,” which vary amongst different traditional communities, occur, and

which formalises the relationship. He explained that there are instances where

circumstances do not readily permit for the regular method of pursuing a

customary marriage. In such circumstances customary law allows for a

number of “irregular means” for circumventing obstacles with a view to

commencing marriage negotiations. Ukuthwala is one such means, of which

both the traditional and essential features are:

72.1 the woman must be of marriageable age, which in customary law is


usually considered to be child-bearing age;

72.2 consent of both parties is necessary to perform ukuthwala. He notes

though that there are instances where a woman would be taken

unaware and acquiescence in the process only occurs after the fact. If

however the woman does not agree the process fails and her father

could institute a civil action against the man’s guardian;

72.3 as part of the process, the parties would arrange a mock abduction of

the woman at dusk. The woman would put up a show of resistance for

the sake of modesty but in fact would have agreed beforehand to the

arrangement;

72.4 the woman would then be smuggled into the man’s homestead and
41

placed in the custody of the women folk to safeguard her person and

reputation. The father of the man would thereupon be informed of the

presence of the woman in his homestead and of his son’s desire to

marry;

72.5 sexual intercourse between the couple is strictly prohibited during this

period. If it does occur between the couple either willingly or by

coercion, it is punishable by the payment of a fine or “bopha” of one

herd of cattle to the woman’s father. This, Nhlapo remarks, is akin to

damages for seduction at common law; and

72.6 the man’s family would then send an invitation to the woman’s

homestead either on the day of the mock abduction or on the following

morning to inform her family that she was with his family. This would be

a signal to the woman’s family that the man’s family wished to

commence negotiations for their marriage.

[73] Nhlapo contends that a pivotal tenant of customary law is that no marriage is

possible without the consent of the woman’s parents. Therefore if following an

ukuthwala the woman’s family rejects the proposal she has to be returned to

her home along with the payment of damages for the unsuccessful ukuthwala.

If on the other hand her family accepts the proposal she would be returned to

her home to be prepared for the nuptials and regular lobola negotiations would
42

commence. Nhlapo points out that the process of ukuthwala is not a marriage

in itself, but, properly understood, is the method instigated by willing lovers to

initiate marriage negotiations by their respective families. He explained that

there are several circumstances under which ukuthwala could be resorted to

by a couple that wished to marry, the foremost being:

73.1 When a woman objected to an arranged marriage and would rather

marry a lover of her choice;

73.2 When the woman’s family objected to her marrying the man of her

choice;

73.3 Where the man was unable to afford and secure marriage through the

payment of lobola in full; and

73.4 Where time was off the essence and it was necessary to conclude

marriage especially in instances where the woman was pregnant.

[74] Nhlapo was of the view that ukuthwala has to be seen as a self-directed form

of betrothal by a man and woman to each other, subject to parental approval,

and is a collusive strategy of the couple to counter the influence of extreme

parental authority and to give effect to the will of young lovers. The first

amicus, NHTL, described this traditional form of ukuthwala as “innocuous,


43

romantic and a charming age old custom”.

[75] Having considered the record of the trial in the court a quo, Nhlapo was of the

view that ukuthwala was not properly performed in the matter. The young age

of the complainant, her lack of consent and the fact that lobola was paid

before the ukuthwala occurred indicated that it was in fact not a true instance

of ukuthwala. He noted though that this was not a unique situation, as the

Discussion Paper traversed several situations in which ukuthwala was abused

to justify patently offensive behaviour such as rape, violence and similar

criminal conduct under the guise of ukuthwala.

[76] This “misapplied form” of the customary practice was also described by Inkosi

Mahlangu as a perversion of the custom and “aberrant”, in which young

women or girls are abducted – and usually subjected to violence, including

sexual abuse and assault – to coerce them into submission. The aberrant form

of ukuthwala often occurs with the agreement of the girl child’s parents and

family, who are paid a fee – improperly described as “lobola” - for permission

“to abduct their daughter.” Nhlapo noted that the parents and family of the girl

in such circumstances are usually from poor socio-economic circumstances,

trapped in the cycle of poverty, and that the money or cattle derived from the

abduction of the girl child for the marriage is unfortunately often attractive.
44

[77] In the supporting affidavits filed on their behalf the fourth, fifth and sixth amici,

while acknowledging the traditional concept of ukuthwala described by both

Nhlapo and Inkosi Mahlangu, voiced the opinion that the appellant’s conduct

was not only an aberrant form of ukuthwala, but also indicative of a

widespread practice in the many communities in which they worked. In their

accounts of the practice, young girls are often forced into unions with their

abductors, in many instances, with the complicity of their families, who are

paid the “lobola” upfront. Girl children are often abducted, raped and beaten in

an effort to force them into submission as young brides.

[78] These amici very appropriately described this practice as a most severe and

impermissible violation of women and children’s most basic rights to dignity,

equality, life, freedom, security of person and freedom from slavery. They

noted though that while they and many other organisations condemned such

conduct, the practice of the aberrant form of ukuthwala relies on a degree of

participation and acceptance in parts of very many communities. They

described the practice as no more than sexual slavery under the guise of a

customary practice. They also shared the view expressed by Nhlapo and

Inkosi Mahlangu that, to a large extent, the practice arose and remains

prevalent because of widespread poverty, especially in rural areas.

[79] In their submissions, the fourth, fifth, sixth and seventh amici also expressed

the view that both “forms” of ukuthwala, the traditional and aberrant, feed on
45

the patriarchal nature of customary law, and in this regard referred to the

remarks of Langa DCJ (as he then was) in the context of the customary law of

succession in the matter of Bhe and others v Magistrate, Khayelitsha and

Others (Commissioner for Gender Equality as Amicus Curiae) 2005 (1) SA

580 CC at para [78] in which he described customary law as “a system

dominated by a deeply embedded patriarchy which reserved for women a

position of subservience and subordination and in which they were regarded

as perpetual minors...” They contended that there were echoes of such

patriarchy even in the relatively benign form of ukuthwala described by

Nhlapo. They submitted though, correctly in our view, that this was not a

debate that this court was required to deal with in the appeal before us.

[80] The Legal Resources Centre, who represented the fourth, fifth, sixth and

seventh amici at the hearing of the appeal, presented argument on the status

of customary law in South Africa with reference to the relevant provisions of

the Constitution, and decisions of the Constitutional Court in the following

matters: Gumede v President of the Republic of South Africa and Others

2009 (3) SA 152 (CC) at para [22]; Pilane and Another v Pilane and Another

2013 (4) BCLR 431 (CC); Bhe & Others v Khayelitsha Magistrate and Others

2005 (1) SA 580 (CC) at para [41]; Alexkor and Another v Richtersveld

Community and Others 2004 (5) SA 460 (CC) at para [51]. For the

determination of the content of customary law the court’s attention was

directed to the process formulated by Van Der Westhuizen J in the matter of


46

Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC).15

[81] The court’s attention was also directed to the opinions expressed by Nhlapo

and Inkosi Mahlangu, on which counsel on behalf of all the amici submitted

that, in application of the factors outlined by Van Der Westhuizen J in

Shilubana and Others (above), only the traditional form of ukuthwala could be

recognized under our law.

[82] Nhlapo argued that inasmuch as ukuthwala is no more than a portal, albeit an

irregular one, to a marriage, the substantive minimum requirements prescribed

by the RCMA must by necessary implication apply to the validity of ukuthwala.

A version of ukuthwala that permitted a marriage to follow when these

requirements were not met would not only be inconsistent with the

Constitution but would also be inconsistent with the RCMA. In this regard the

amici pointed out that the Constitutional Court in Mayelane v Ngwenyama and

another (Women’s Legal Centre Trust and Others as amici curiae) 2013 (8)

BCLR 918 (CC) has already held that consent, albeit in the context of a

polygamous marriage, is a necessary requirement for a valid customary

marriage, and the court remarked at paras [74], [75] and [83] as follows:

15
The third amicus curiae made extensive and helpful submissions on the position of children in the practice
of ukuthwala, in the light of the provisions of the Children’s Act within the context of the constitutional
directive of the protection and upholding “the best interest of the child”. They also referred the court to
South Africa’s international law obligations with regard to the rights of children and comparative
international case law.
47

“[74] Given that marriage is a highly personal and private contract, it would
be a blatant intrusion on the dignity of one partner to introduce a new member
of that union without obtaining that partners consent.

[75] In accordance with the Court’s jurisprudence requiring the


determination of living customary law that is consistent with the Constitution,
we thus conclude that Xitsonga customary law must be developed, to the
extent that it does not yet do so, to include a requirement that the consent of
the first wife is necessary for the validity of a subsequent customary marriage.
This conclusion is in accordance with the demands of human dignity and
equality. These demands are evident from the terms of the Recognition Act…

[83] The Recognition Act is thus premised on a customary marriage that is


in accordance with the dignity and equality demands of the Constitution. A
customary marriage where the first wife has consented to the further marriage
conforms to the principles of equality and dignity as contained in the
Constitution. Where the first wife does not give consent, the subsequent
marriage would be invalid for non-compliance with the Constitution.”

[83] Nhlapo contended that in customary law, however, the consent of both the

man and the woman is already a requirement for a valid ukuthwala. This view

was shared by Inkosi Mahlangu on behalf of the first amicus curiae.

[84] A further requirement for a valid customary marriage considered by the amici

was the issue of the permissible marriageable age. Nhlapo recorded that

amongst the AmaXhosa, marriageable age for a woman is considered to be

when she is able to bear children. However given the clear indication by the

legislature, it appeared that for an ukuthwala to be considered validly


48

performed, the parties thereto must either be above the age of eighteen or

have acquired parental consent (who may also ratify the arrangement ex post

facto). Nhlapo claimed that this comported with the position at customary law

that if the ukuthwala did not lead to the commencement of marriage

negotiations, absent the consent of the woman’s parents, then damages for

the unsuccessful attempt would become payable. It should be noted though

that during the course of oral argument the amici raised what appeared to be a

measure of uncertainty about the minimum age, inasmuch as there was a lack

of clarity with regard to whether a child below the age of sixteen years old but

above twelve could lawfully be handed into marriage by her parents.16

Needless to say, these concerns should be addressed in the pending law

reform process. Pending such process the provisions of the RCMA and the

Marriage Act No 25 of 1961 remain prescriptive.

Evaluation

[85] It is in the context of the evidence with regard to the content of ukuthwala as it

is traditionally practiced and the practice in its “aberrant” form that the

defences raised by the appellant on appeal must be considered. It appeared

that the appellant conceived of ukuthwala as a form of marriage contrary to

the opinions of the experts and the amici (that it is no more than a portal that

commenced the process of marriage negotiations). In his evidence at the trial

the appellant claimed that he had specifically travelled to the Eastern Cape to

16 Nhlapo’s affidavit p 10 para 19.2; Inkosi Mahlangu’s affidavit p 296 para 44.1.
49

obtain a wife in accordance with his traditional customs. After literally selecting

the complainant as the person he wished to marry he entrusted the

negotiations to his family and her uncles. An amount of lobola of R8000 (two

cows) was agreed to and the complainant was handed over to the appellant

and his family by the uncle of the complainant and taken to their village

whereupon she was groomed in the traditional amadaki as his young bride. He

testified that although the complainant initially did not appear to be “happy,”

after what he claimed to have been consensual sex between the two of them

she carried out her chores as a young bride and he was left with no reason to

think that she was an unwilling wife anymore. He claimed that he understood

that it was necessary in his custom for the complainant to have consented to

entering into the marriage. He likewise believed she was also required to have

consented to sexual intercourse with him.

[86] Central to his defence at his trial however was the appellant’s claim that the

complainant had as a fact consented to their customary marriage and the

sexual intercourse between them. Moreover he claimed that she had willingly

relocated to Cape Town as his wife. The appellant had on his own version not

relied on a practice of ukuthwala that required any measure of coercion of the

complainant. He claimed though that due to the fact that her uncles and his

family had entered into the negotiations, and arrived at an agreement as to the

amount of the lobola that he paid, and because her family had willingly handed

the complainant over to him in marriage and returned her when she
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
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
52

attempt to do was to rely on the aberrant form of ukuthwala as being the living

form of customary law to justify his conduct.

[91] In clarification of the relevance of the appellant’s reliance on the practice of

ukuthwala in customary law, the trial court had specifically put to De Villiers

that the appellant had not asserted any right under customary law to have

married or to have had sexual intercourse with the complainant without her

consent, nor to have removed her from the Eastern Cape to Cape Town

against her will. De Villiers’ response is fully encapsulated in the following

concluding remarks he made in his testimony;

“---Net hoe simpatiek ʼn mens ook al wil wees ten opsigte van tradisionele
lewende gewoontereg mag mens nooit romantiseer daaroor soos wat soms ʼn
bietjie gedoen word nie en moet mens gedagtig wees dat die waardigheid en
gelykheidsbeginsels van die Grondwet so belangrik is dat selfs die
Konstitusionele Hof onlangs in sy meerderheidsuitspraak gesê het ʼn man
moet vir sy eerste vrou se toestemming by haar kry voordat hy sy tweede vrou
mag trou. So die vrou se toestemming word baie vooropgestel en dit is iets
wat in hierdie geval ongelukkig miskien nie gebeur het nie.”

[92] The trial court found and correctly so, that the appellant had not asserted any

customary law precept to have justified his conduct, or that he had acted in the

belief that he had entered into a customary marriage that permitted sexual

coercion. It appeared however on appeal that the appellant re-asserted a

reliance on the practice of ukuthwala, albeit in its aberrant form, which was

permissive of coercion in respect of the sexual assaults to subdue her, and


53

that her family (her uncles in particular) had negotiated the payment of the

lobola for the marriage and had not objected to her removal to Cape Town.

[93] In the initial heads of argument filed on behalf of the appellant on appeal, his

counsel quoted an excerpt18 from an article by visiting Yale University student

Ms N Karimakwenda titled “Today it would be called rape: a historical and

contextual examination of forced marriage and violence in the Eastern Cape

by Nyasha Karimakwenda 2013 Acta Juridae 339 (at 352T) in support of his

contention as to the content of the practice. Karimakwenda argues that

violence was always a part of the traditional form of ukuthwala and explored

the continued prevalence of violence in the present day practices and more

generally the use of violence in relationships. However the appellant’s reliance

on this insightful piece of research in order to justify his conduct is, in our view,

misplaced. Counsel for the appellant also referred to an article of K Wood

“Group rape in the post-apartheid South Africa” (2005) 7(4) Culture, Health &

Sexuality 303 at 313-31419:

‘the act of penetration – violently enacted or not – was one crucial part of the
process of turning a girl into a wife, and thus enabled her attainment of an
adult status (assuming her prior virginity), and this could not be equated with
… rape, which had no decent intention. The act of sexual union marked the
woman as belonging to the man: if the girl returned to her home after
ukuthwala, the implication was that she was disgraced and “damaged” by the
man’s sexual marking and “owning” of her – a marking without substance.’

18 Appellant’s heads of argument paras [20] – [25] p 588.


19
Appellant’s heads of argument para [29] pp 588 – 589.
54

[94] On appeal the appellant relied on this practice as constituting the living

customary law that eschewed the requirements of consent and the prescript of

age as determined in the RCMA. Counsel for the appellant submitted that the

appellant had effectively entered into what he termed a “putative customary

union.”

[95] However, in our view, it cannot be countenanced that the practices associated

with the aberrant form of ukuthwala could secure protection under our law. We

cannot therefore, even on the rather precarious ground of the assertion by the

appellant of a belief in the aberrant form of ukuthwala as constituting the

“traditional” customs of his community, which led to a “putative customary

marriage,”20 find that he had neither trafficked the complainant for sexual

purposes (as defined) nor committed the rapes without the necessary

intention.

[96] We can furthermore find no fault with the trial court’s credibility findings, nor

with its reasoning and conclusions in respect of the convictions on both the

trafficking and rape counts.

20
Appellant’s heads of argument p 590 of the record para [38].
55

[97] Insofar as the two convictions for assault are concerned, it is our view that

these amount to a duplication of convictions. In S v BM 2014 (2) SACR 23

(SCA) at para [3] the relevant test was formulated as follows:

‘It is apparent that charging Mr BM with two separate counts, arising out of
what was clearly one and the same incident, involved an improper duplication
(splitting) of charges. It has been a rule of practice in our criminal courts since
at least 1887 that “where the accused has committed only one offence in
substance, it should not be split up and charged against him in one and the
same trial as several offences”. The test is whether, taking a common sense
view of matters in the light of fairness to the accused, a single offence or more
than one has been committed. The purpose of the rule is to prevent a
duplication of convictions on what is essentially a single offence and,
consequently, the duplication of punishment. Its operation is well illustrated by
the example given in R v Kuzwayo, of the theft of 10 apples from an orchard
on one occasion, where there is only a single offence, and the theft of one
apple a day over 10 days, where there are 10 offences. Here, if there were an
offence it was patently a single offence committed with a single intention. It
should not have been split into two charges.’

[98] On the complainant’s own version, the assaults with the mop handle and the

belt took place because the appellant wanted to subdue her so that he could

rape her. The assaults themselves were the precursor to that rape. They

immediately preceded the rape. As such the assaults arose out of the same

incident as that of the rape. We thus conclude that the assaults formed part of

a single offence, namely rape, committed with a single intention. To uphold the

convictions on these two counts would amount to a duplication of convictions


56

on what is essentially a single offence and consequently, would amount to a

duplication of punishment.

Sentence

[99] It is trite that a court of appeal may only interfere with a sentence imposed by

the trial court if there has been a material misdirection or the sentence

imposed is shocking, startling, or disturbingly inappropriate.

[100] As a first offender for the multiple rape of a minor, and for trafficking a person

for sexual purposes, the appellant faced life imprisonment in terms of Part 1 of

Schedule 2 of s 51(1) of the Criminal Law Amendment Act 105 of 1997, unless

the trial court was satisfied that substantial and compelling circumstances

existed which justified the imposition of a lesser sentence in accordance with

s 51(3). However the charge sheet in respect of the count of trafficking did not

reflect the minimum sentence provision.

[101] We note the distinction between Part 1 of Schedule 2 (which refers to s 71 of

the Sexual Offences Act) on the one hand, and s 305(8) of the Children’s Act

on the other, which stipulates that a maximum of 10 years imprisonment may

be imposed for child trafficking. It would appear that the distinction lies in the

purpose of the trafficking, given that s 285(1) of the Children’s Act (creating

the statutory offence of child trafficking) does not specifically refer to trafficking

for sexual purposes. This indicates to us that the legislature regards the
57

offence of trafficking for sexual purposes as a particularly heinous crime,

punishable by the most severe sentence of imprisonment which a court can

impose.

[102] Again, the trial court’s approach to sentencing the appellant and the sentences

which it imposed cannot be faulted. It correctly pointed out the failure by the

state to reflect the minimum sentence of life imprisonment for trafficking for

sexual purposes in the charge sheet. It thus correctly found that in the

interests of justice the court’s ordinary penal jurisdiction would have to prevail.

[103] The trial court carefully weighed the well-known triad of the nature of the

offences, the appellant’s personal circumstances, and the interests of society.

It paid due regard to the probation officer and victim impact reports. Their

contents form part of the record and will thus not be repeated herein. The trial

court accepted that the appellant’s moral blameworthiness was mitigated by

the belief which he held concerning traditional practices, and accepted that in

his own mind the appellant had not foreseen the catastrophic consequences

to the complainant when he set in motion the course of events. We wish to

emphasise however that in our view, any diminishing of the appellant’s moral

blameworthiness must be clearly distinguished from the notion or perception

that any aberrant form of custom or traditional practice can of itself constitute a

substantial and compelling circumstance. This could never have been

contemplated by the legislature, as it would fall foul of our Constitution, and


58

would in any event defeat one of the very purposes for which s 51 of Act 105

of 1997 was enacted.

[104] The trial court also correctly found that the involvement of the complainant’s

male family members and grandmother was nothing more than a neutral factor

insofar as the appellant’s own blameworthiness was concerned. It thus found

that substantial and compelling circumstances existed which justified the

imposition of a lesser sentence than that prescribed on the counts of rape.

Similarly no criticism can be levelled at the sentence imposed by the trial court

when exercising its ordinary penal jurisdiction on the count of trafficking.

Conclusion

[105] In the result, save only in respect of the convictions on the counts of assault,

there is no basis for this court to interfere in the trial court’s decision.

[106] We thus make the following order:

1. The appeal succeeds in part.

2. The appellant’s convictions on the counts of assault with intent to

cause grievous bodily harm, and common assault, are hereby set

aside.
59

3. Save as aforesaid, the appellant’s appeal against his convictions

and sentences is dismissed. The convictions and sentences are

confirmed.

___________________
N J YEKISO

_________________
V SALDANHA

_________________
J I CLOETE

For Appellant Adv Mornay Calitz


Instructed by Legal Aid, Cape Town

For Respondent Adv B E Currie-Gamwo


Adv Maria Marshall

The National House of Traditional Leaders Adv S Poswa-Lerotholi


Instructed by The State Attorney

The Women’s Legal Centre Trust Adv Z Titus

The Centre for Child Law Ms K Ngidi

The Commission for Gender Equality Adv M Bishop &


The Rural Women’s Movement Adv U K Naidoo
The Masimanyane Women’s Support Centre
The Commission for the Promotion of the Rights,
of Cultural Religious & Linguistic Communities
60

Instructed by Legal Resources Centre,


Cape Town

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