Reportable: Republic of South Africa
Reportable: Republic of South Africa
Reportable: Republic of South Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
and
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
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
accordance with s 50(2)(a) of the Criminal Law Sexual Offences and Related
[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
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
[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
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
[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
would appear that they were concluded over the course of one day. Early the
members of the two families and informed by one of them, who was not known
[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
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
[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
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
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
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
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
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
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
[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 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
Given the common cause facts, what follows is a summary of the evidence of
[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
[16] Whilst being forcibly restrained by being held by her arms en route to her
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
[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
[18] The complainant’s first attempt to escape was the following morning when she
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
[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
[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
[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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[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
[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
[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
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
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
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
[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
[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
[31] Dr Narula testified that she had examined the complainant on 3 March 2010.
The complainant appeared traumatised, fearful and tearful, still wearing her
the lower thigh that had become septic, as well as two healing abrasions on
the posterior fourchette, redness at the hymen and bilateral vestibular redness
of the vagina, as well as vaginal discharge. Her findings were compatible with
object. Dr Narula testified that the complainant was a virgin prior to sustaining
[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
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
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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
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
[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
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’.
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[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
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
[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
‘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
[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’
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
[40] The appellant’s defence was thus one of consent. He maintained that the
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
[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
‘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
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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
“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
customary law.
[44] His opinion was that the process followed by the appellant to obtain a “wife”
common cause that there had been no compliance with the provisions of the
historically women and girls could indeed be forced into these “marriages”. It
was in this context that he testified generally about the tension between
[45] In evaluating the evidence the magistrate, mindful of the cautionary rules
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 age. The undisputed evidence was that the mother’s views and wishes
relatives. This was borne out by the mother’s futile attempt to protect the
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
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”.
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[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
[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
supported the latter’s evidence that she had not received any medical
[48] It was also the trial court’s finding that if the complainant had indeed enjoyed
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
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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
[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
[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
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
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
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
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
‘[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
assaults took place as part and parcel of one “overall” assault to compel the
[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
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
such applications.
[55] The appellant and the respondent were afforded the opportunity of responding
national level;1
1 Notice of application to be admitted as Amicus Curiae, affidavit by Inkosi Sipho Etwell Mahlangu, p 3
para 5.
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advancement and protection of the human rights of all women and girls
55.3 the Centre for Child Law, based at the University of Pretoria, a
registered law clinic that promotes and protects the constitutional rights
gender equality;5
women and girls with a specific focus and expertise in the application of
55.7 the Commission for the Promotion and Protection of the Cultural,
Neither the appellant nor the respondent opposed any of the applications and
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
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
Legal framework
[57] Before turning to the submissions of the parties and amici curiae, we set out,
‘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
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
(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.’
[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
imprisonment.
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[63] There are a number of statutory provisions in the Sexual Offences Act
63.2 S 56(1), which stipulates that it is not a valid defence to rape to rely on
63.4 Part 6 (ss 70-72), which contain the transitional provisions pertaining to
1979 and the UN Convention on the Rights of the Child, 1989 (CRC).
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
63.8 S 56A(2), which provides that the court imposing sentence ‘shall
[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
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
[65] The Recognition of Customary Marriages Act 120 of 1998 (‘RCMA’) was
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
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
the age of 18 years. However this does not relieve the parties to the proposed
by law).
gender, including: (a) gender-based violence; and (b) any practice, including
and undermines equality between women and men, including undermining the
[68] South Africa has also signed and ratified a number of international
that marriage shall be entered into only with the free and full consent of
appropriate measures to: (a) modify the social and cultural patterns of
of equality of men and women, the same right to enter into marriage
a criminal offence;
68.4 The Protocol to the African Charter on Human and People’s Rights on
68.5 The CRC (referred to supra) which stipulates that member states: (a)
68.6 The African Charter on the Rights and Welfare of the Child (ACRWC) in
prohibited (art 27). Member states must take all appropriate measures
68.7 The Optional Protocol to the Convention on the Rights of the Child on
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
[70] In August 2009, the South African Law Commission (the SALRC) was
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
[71] In the affidavit filed on behalf of the National House of Traditional Leaders
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
[72] It is not necessary for purposes of this judgment to set out in detail the
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
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
irregular method which would, if the precepts of the custom were correctly
customary law. Nhlapo explained that the regular method for the conclusion of
bridegroom’s family, which is extended to the family of the intended bride, and,
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
which formalises the relationship. He explained that there are instances where
unaware and acquiescence in the process only occurs after the fact. If
however the woman does not agree the process fails and her father
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
marry;
72.5 sexual intercourse between the couple is strictly prohibited during this
72.6 the man’s family would then send an invitation to the woman’s
morning to inform her family that she was with his family. This would be
[73] Nhlapo contends that a pivotal tenant of customary law is that no marriage is
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
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
73.4 Where time was off the essence and it was necessary to conclude
[74] Nhlapo was of the view that ukuthwala has to be seen as a self-directed form
parental authority and to give effect to the will of young lovers. The first
[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
[76] This “misapplied form” of the customary practice was also described by Inkosi
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
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,
Nhlapo and Inkosi Mahlangu, voiced the opinion that the appellant’s conduct
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
[78] These amici very appropriately described this practice as a most severe and
equality, life, freedom, security of person and freedom from slavery. They
noted though that while they and many other organisations condemned such
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
[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
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
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
[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
Shilubana and Others (above), only the traditional form of ukuthwala could be
[82] Nhlapo argued that inasmuch as ukuthwala is no more than a portal, albeit an
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
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.
[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
[84] A further requirement for a valid customary marriage considered by the amici
was the issue of the permissible marriageable age. Nhlapo recorded that
when she is able to bear children. However given the clear indication by the
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
negotiations, absent the consent of the woman’s parents, then damages for
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
reform process. Pending such process the provisions of the RCMA and the
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
the opinions of the experts and the amici (that it is no more than a portal that
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
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
[86] Central to his defence at his trial however was the appellant’s claim that 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
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
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
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
[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
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
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
“---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
reliance on the practice of ukuthwala, albeit in its aberrant form, which was
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
by Nyasha Karimakwenda 2013 Acta Juridae 339 (at 352T) in support of his
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
on this insightful piece of research in order to justify his conduct is, in our view,
“Group rape in the post-apartheid South Africa” (2005) 7(4) Culture, Health &
‘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.’
[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
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
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
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
‘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
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
[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
s 51(3). However the charge sheet in respect of the count of trafficking did not
the Sexual Offences Act) on the one hand, and s 305(8) of the Children’s Act
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
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
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
the belief which he held concerning traditional practices, and accepted that in
his own mind the appellant had not foreseen the catastrophic consequences
emphasise however that in our view, any diminishing of the appellant’s moral
that any aberrant form of custom or traditional practice can of itself constitute a
would in any event defeat one of the very purposes for which s 51 of Act 105
[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
Similarly no criticism can be levelled at the sentence imposed by the trial court
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.
cause grievous bodily harm, and common assault, are hereby set
aside.
59
confirmed.
___________________
N J YEKISO
_________________
V SALDANHA
_________________
J I CLOETE