In December of 2009 or early January 2010, the Appellant left his residence for his village to find a girl to marry, in accordance with his custom. He identified a 14-year-old girl (“Complainant”), who had just started 7th grade, as the girl he wanted to be his wife. His family and the male members of Complainant’s family completed the marriage negotiations within one day. Complainant’s family then forcibly took her to Appellant’s house in another village, where she was informed that he was to become her husband. While there, she forced to undergo traditional ceremonies despite her protests, after which she allegedly became the Appellant’s wife under customary law. A bride price of 8000 Rand (about $565 USD) was paid to the Complainant’s maternal grandmother with whom the Complainant had been living.
The Complainant was forced to live with Appellant in his familial home, where she was unhappy and ran away. She was found by male members of her family and returned to the Appellant’s residence a few days later. Appellant subsequently forced Complainant to travel to Cape Town with him to live with Appellant’s brother. Once in Cape Town, Appellant and Complainant had sexual intercourse on multiple occasions, all of which were against Complainant’s will. Complainant and Appellant argued on several occasions, and one argument caused Complainant to sustain an open wound on her leg. Soon after moving to Cape Town, Complainant ran away and reported the matter to police. Appellant was charged and convicted 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.
Appellant was convicted of human trafficking, rape, common assault, and assault with intent to cause grievous bodily harm, and was serving his sentence. He appealed the conviction and sentence before this Court.
The Court examined the following issues on appeal:
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.
Although child, early and forced marriage (CEFM) is a global problem, it is most prevalent in Sub-Saharan Africa and South Asia. As submitted by the amici curiae in this case, poor socio-economic conditions and poverty fuel the cycle of CEFM. CEFM is both a manifestation and a cause of poverty which survives the generations because of the complicity of families and the acceptability of the practice among community members. Other factors that sustain CEFM include patriarchal socio-cultural norms that subjugate girls and women, especially by suppressing their self-determination in matters relating to their sexuality and sexual relationships. Violence, abduction, and rape are tools for maintaining the subjugated position of women in society.
This case has generated debate around an issue the Court did not determine, and that is whether ukuthwala, even in its innocuous, “traditional” form, is nevertheless shrouded in patriarchal values that are contrary to gender equality and human rights.
Indeed, why should mock-abduction be a feature for the girls and not the boys? Does it not in fact, even if only symbolically, represent the subjugated position of the girl in relation to the man? Another challenge is that ukuthwala seems to focus on the consent of families rather than the person’s consent. Furthermore, Appellant was appreciative of the ambiguity about consent which the practice of mock-abduction poses. This is an important observation because mock-abduction mystifies the process of consent and obscures whether it does in fact take place, or whether the girl succumbs to pressure or merely acquiesces after being coerced. The whole practice of ukuthwala is therefore suspect, as it is based on patriarchal notions about the place of women in society. However, it is no simple matter to dissuade communities from continuing such practices because of the reasons described above, including that they are a source of income, and caused by sociocultural pressure.
Finally, the Court did not address why the lower court did not charge Appellant’s brother and the girl’s family as accomplices to Appellant’s crimes. The failure to hold the community liable for this early and forced marriage calls into question the fairness of the criminal courts. The evidence showed that the Complainant’s uncle and other family members, as well as Appellant’s male family members, were accomplices to the abduction. The brother of the Appellant had also allegedly held the Complainant down while the Appellant raped her. The Court agreed with the trial court without explaining its reasoning, even though it was evident that family members played key roles in the commission of the offences. Extending liability to members of the family may have had the implication of prosecuting a whole group of family members or members of a community.