The Court examined the following issues on appeal:
- Whether the trial court’s determination of the issues should have considered the practice of ukuthwala, which allows the “bride” to be coerced, and;
- Whether the two convictions for assault should have been treated as one charge, given that both assaults were part of one overall assault.
The Court referred to several laws in its examination of the issues, including, inter alia, Sections 1 and 284(1) of the Children’s Act of 2005 (“Children’s Act”), which discuss the definition of trafficking and the prohibition of child trafficking respectively. The Court also noted that the Sexual Offences Act defined trafficking in a similar manner to the definition in the Children’s Act, and that the Sexual Offences Act prohibits trafficking of any person without their consent because consent can only be voluntary or uncoerced. The Court also referred to the Prevention and Combatting of Trafficking in Persons Act, which at the time of the judgment had been passed but had not yet entered into force (it has since been signed into effect). However, the Court stated that the Act’s various provisions pointed to the intention of the Legislature to comply with its obligations under international human rights law.
The Court examined South Africa’s regional and international treaty obligations, including the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and highlighted the prohibition of child marriage and exploitation. Furthermore, “[t]he Court determined that there was clear authority that child trafficking and child abuse or exploitation for sexual purposes was ‘not to be tolerated in [its] constitutional dispensation.’”
Amici curiae indicated that ukuthwala is one of a number of alternative ways under customary law to bring about marriage negotiations, and that it generally requires (a) the woman to be of marriageable age, typically child-bearing age; (b) the consent of both parties, though there are instances in which the women’s acquiescence in the process occurs after the fact; (c) a mock abduction of the woman at dusk, during which the woman would feign protest but would have agreed beforehand; (d) a smuggling of the woman to the man’s homestead; and (e) an invitation sent to the woman’s homestead to inform the woman’s family that she was with the man’s family, which was supposed to signal the desire of the man’s family to enter into marriage negotiations. The amici argued that, based on the record, ukuthwala was not properly performed in this case due to the Complainant’s young age, her lack of consent, and the payment of the bride fee before the ukuthwala took place.
The Court determined that the offences for which the Appellant was charged had occurred after a traditional ukuthwala would ordinarily occurred, as the trafficking and sexual assaults occurred after the customary marriage. Therefore, the Court held that the Appellant could not rely on the traditional practice of ukuthwala to justify his criminal conduct.
Further, The Court took judicial notice of a public debate on the practice of ukuthwala that “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 by older men.” The Court was persuaded largely by the views of Professor Nhlapo and Inkosi Mahlango on the distinction between the traditional and the aberrant forms of ukuthwala. The aberrant form did not have the same requirements of consent and age. The Court found that the Appellant had relied on an aberrant form of ukuthwala and held that the Appellant could not rely on the misapplied form of ukuthwala, which did not comply with the requirements of the RCMA, to justify commission of the offences of trafficking and rape.
The Court then examined the assault convictions, and determined that both were essentially duplications of the rape conviction, because Appellant inflicted the wound on Complainant’s leg and hit her with a belt so he could rape her. The Court noted that the assaults were an immediate precursor to the rape because Appellant raped Complainant immediately after he wounded her. The Court therefore determined that the assault convictions should be vacated because the actions fall under the rape conviction.
The Court also held that the actions Appellant’s and Complainant’s families were not sufficiently culpable to charge them as accomplices to Appellant’s crimes. The Court affirmed the convictions for trafficking and rape and vacated the assault convictions.