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[2021] ZAKZDHC 35
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Mbhamali v S (AR579/2019) [2021] ZAKZDHC 35; 2021 (2) SACR 627 (KZD); [2022] 1 All SA 488 (KZD) (12 October 2021)

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IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
“
REPORTABLE”
Case No: AR579/2019
IN THE MATTER
BETWEEN:
JABULANI EMMANUEL
MBHAMALI

APPELLANT
and
THE
STATE

RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time for
hand-down is deemed to be 10h00 on 12 October 2021.
ORDER
The appeal against
conviction is dismissed.
JUDGMENT
Delivered on: 12
October 2021
Hadebe J (Moodley
J concurring)
[1]
The appellant herein appeared before the regional court, Inkanyezi,
charged with rape
in contravention of s 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (‘Sexual
Offences Act’).
Accused 2 (‘Mrs Phakathi’) was charged with
failure to immediately report a sexual offence against a child in
contravention of
s 54(1)
(a)
read with s 54(1)
(b)
, 56,
57, 58, 59, 60 and 61 of the Sexual Offences Act and s 94 of the
Criminal Procedure Act 51 of 1977 (‘the CPA’).
[2]
On 16 August 2018, they were each found guilty as charged. On 19
November 2018, the
appellant was sentenced to 18 years’
imprisonment and Mrs Phakathi to 3 years’ imprisonment in terms of
s 276(1)
(i)
of the CPA. On 31 May 2019, the appellant was
granted leave to appeal against conviction only by the trial court.
[3]
There is no record of a petition to the Judge President before me on
the issue of the
refusal of leave to appeal against sentence. In the
circumstances, this judgment deals with the appeal against conviction
only.
[4]
The application for leave to appeal against conviction is premised
upon the following
grounds:
(a)
there is enough basis to hold that when the appellant met with the
complainant, in his mind he was meeting
with his prospective wife who
was consenting to all the activities they were engaging in, and this
included sexual intercourse;
(b)
the complainant never told the appellant that she did not agree to be
his wife nor that she did not love
him;
(c)
that the complainant had come on her own to the appellant’s home
and that the appellant had not once
gone to fetch the complainant
from her place of residence. From this observation, the argument on
behalf of the appellant is that
the complainant gave consent to the
proposed marriage and also to sexual intercourse;
(d)
the complainant’s father is criticised for not having been a
truthful witness in that he had told the
court that he had no
knowledge of any relationship between the appellant and the
complainant but later on changed his testimony and
stated that he was
told by the leader (Mrs Phakathi) and that he had disapproved of the
proposed arranged marriage;
(e)
that the complainant had gone to help with the chores at the
appellant’s house as a sign of her willingness
to be a wife to the
appellant;
(f)
it is submitted further that the trial court erred in finding that
the complainant’s visits to
the appellant’s rented premises were
not indications that she was consenting to the marriage proposal and
sexual intercourse with
the appellant;
(g)
there is a concession in the submissions on behalf of the appellant
that there was suspicion that the
complainant was a child. However,
the argument in this regard is that, given the fact that the
complainant was nominated by the elders
of the church and that the
doctor recorded that she weighed 46kg and was 165cm tall, this was an
indication that the complainant
appeared to be of consenting age.
[5]
In its response, the following has been submitted on behalf of the
respondent:
(a)
the religious practice was not properly performed in the instant
case. This is based on the young age
of the complainant; her lack of
consent; the fact that her parent was not involved and that,
according to Christian values, sexual
intercourse before marriage is
forbidden. According to the respondent, what happened in this case
bordered on human trafficking;
(b)
there is no justification of the appellant’s conduct in that, in
particular, the religious practice
asserted by him did not negate the
unlawfulness of his conduct. The other argument in this regard is
that the appellant could not
be said to have lacked mens rea in the
form of intention due to his belief in his church practice of getting
a wife;
(c)
there is sufficient corroboration implicating the appellant and thus
sustaining the conviction;
(d)
the learned magistrate delivered a well-reasoned judgment. In the
circumstances, it is submitted that
the State proved the case against
the appellant beyond reasonable doubt;
(e)
the appellant has failed to prove that there was any misdirection (by
the trial court) in convicting him;
(f)
The respondent finally submits that the appeal against conviction
stood to be dismissed.
The background
facts
[6]
The complainant, who was 14 years of age, was given to an arranged
marriage proposal
to the appellant who was 32 years old at that
stage. The appellant, Mrs Phakathi, the complainant and her father
all belonged to
one church, the 12 Apostles Church in Christ (‘the
church’). They did not necessarily belong to the same branch of the
church.
The church encourages marriage amongst its members. Once a
man is ready to settle down to marry, he approaches one of the female
leaders in church and asks to be matched with a partner. The idea of
this practice is that people should already be lovers and of
a
marriageable age.
[7]
According to Mr Senzo Bernard Dlamini (‘Mr Dlamini’), the
overseer at the church
where the complainant and her father were
members, this practice of matching people for purposes of marriage
had to be in keeping
with the law and that even the ages of the two
people to be matched should be in accordance with the legally
recognised age of marriage.
He, however, strenuously criticised the
fact that the appellant had engaged in sexual intercourse with the
complainant. This was
so because, according to him, the church
practice and belief did not permit for cohabitation and engagement in
sexual intercourse
before marriage even though the two people may
have been introduced to each other.
[8]
The complainant and her two younger siblings were being raised by
their father as a
single parent. At one stage, they had ended up
staying at the house of Mrs Phakathi. According to the complainant,
Mrs Phakathi had
asked her to come and live with her as she had found
a husband for her. She had dismissed this as a joke. According to the
complainant’s
father, the reason was that whenever he would be
working a night shift, the complainant, who was on TB treatment,
would default on
her medication. It was as a result of this that Mrs
Phakathi approached him and offered to take care of the three girls
to ensure
that the complainant consistently took her medication. This
was confirmed by Mrs Phakathi at the trial.
[9]
It was during this stage that Mrs Phakathi started the matchmaking
process. She took
it upon herself to dispatch the complainant to the
house of the appellant to be introduced as a prospective wife.
According to her,
it was only after this initiative that she involved
the complainant’s father in what was happening. Her version is
that, the complainant’s
father agreed to the arranged marriage. On
the other hand, the complainant’s father was adamant that when Mrs
Phakathi introduced
this topic to him, he was incensed and demanded
the return of his children. Mrs Phakathi had thereupon apologised and
she continued
taking care of the children.
[10]
The first visit of the complainant to the house of the appellant was
the beginning of a series of such
visits. According to the
complainant, each visit would be approved by Mrs Phakathi. On at
least three of these visits, the complainant
was subjected to sexual
intercourse by the appellant. She was not a willing participant. The
appellant would threaten her with violence
if she did not co-operate
and refused to remove her clothing. At one stage, he had threatened
to whip her with his belt. Each time
after the sexual intercourse
took place, she returned to Mrs Phakathi and made a report of same
and noted her displeasure at what
was happening. Mrs Phakathi would
tell her not to worry, to hang in there as everything would be
alright. At one stage, she personally
escorted the complainant to the
appellant’s workplace and again sexual intercourse took place
there.
[11]
The appellant had started by giving money to the complainant to buy a
phone after their first meeting.
The phone was bought and was
activated by Mrs Phakathi to facilitate communication between the
appellant and the complainant. Other
gifts followed in the form of a
dress, jersey, takkies etc, sourced by the appellant and given to the
complainant. The complainant
would be called to the appellant’s
house for a variety of chores. At one stage, she was summoned to take
care of the appellant’s
grandmother. She went there with a member
of Mrs Phakathi’s family. In yet another instance, she was called
up to wash the appellant’s
blankets who was now referred to as her
husband.
[12]
According to the complainant’s father, he only became aware of what
was happening when the children
visited him during school holidays.
When it was time to return to Mrs Phakathi, the children refused to
go. It was then that the
complainant revealed what had been
happening. He immediately approached the church leadership who
summoned Mrs Phakathi to a meeting.
She was chastised and blamed for
what she had done. All she did was apologise. The social workers were
then involved and the police
eventually arrested both the appellant
and Mrs Phakathi.
[13]
The defence raised by the appellant purported to show that he was not
aware that the complainant was
underage. This, however, paled into
insignificance when it became apparent that the appellant actually
knew, or ought to have known,
that the complainant was a child. His
mother indicated that the complainant was too young. Mrs Phakathi
retorted, telling her that
they should in fact be thanking her and
querying if they would rather she brought them an ‘old goat’ for
a bride for the appellant.
[14]
The appellant himself could not disassociate himself from the fact
that he was aware that the complainant
was a child. At one stage, in
his evidence-in-chief, this is what he responded to Mr Khuzwayo’s
(defence attorney for appellant)
enquiry:
‘
Mr Khuzwayo: Your
overall impression what, what comment did you make?
Appellant
:
My mother complained, your worship and she complained that the, this
suitor, in
as far as the lady leader was concerned was young and when
she complained like that, she even told the lady leader in question,
your
worship, that found her for us, that, that child was young
Mr Khuzwayo:
Yes, what was your overall impression? What did you say?
Appellant
:
Your worship,
I also had a complaint
Mr Khuzwayo
:
What was your complaint?
Appellant
:
I also complained that that
thing
looked small and young’ (My emphasis)
[15]
It was only under cross-examination that the appellant tried to
extricate himself from the knowledge
that he obviously possessed that
the complainant was a child. He started giving new versions of his
impression of the complainant
being young. He told the court that by
saying the complainant was young he meant that the complainant had a
slender body. This changed
with the appellant extending the meaning
of the word “young” to say that what he meant by this was that
the complainant was skinny.
This, however, did not assist the
appellant as he had, in no uncertain terms, conceded that he was
aware that the complainant was
young.
[16]
The defence witness for the appellant, Ms Ngiba, told the court that
when she first saw the complainant
at the appellant’s rented
premises she had asked her if her parents were aware she was there.
She, however, denied that this was
out of concern based on the fact
that she could see that the complainant was a child. She gave a
number of nonsensical explanations
as to why she had asked that
question. When the state prosecutor asked her if she would ask a
grown man like him a similar question,
she indicated she would not
have. She started introducing the description of the complainant
being skinny and tall, the very same
explanation that had been given
by the appellant, as an afterthought, might I add. It later
transpired that she had been sitting
in court whilst the appellant
and his mother were giving evidence.
The legal
position
[17]
In terms of s 1(1) of the Sexual Offences Act, unless the context
indicates otherwise, ‘“child”
means a person under the age of
18 years and “children” has a corresponding meaning.’ The same
description of the word “child”
is given in terms of
s 1
of the
Children’s Act 38 of 2005
.
[18]
Sections 15 and 16 of the Sexual Offences Act create a prohibition of
any act of sexual penetration or
sexual violation with a child who is
12 years or older but under the age of 16 years. The fact that such
child might have consented
to such an act is no defence. Simply put,
a child who is 12 years of age or older, but under the age of 16
years, is incapable of
giving consent to any act of sexual
penetration or sexual violation on her.
[19]
The description of a “child” is the same in terms of s 28(3) of
the Constitution. In terms of s 28(1)
(d)
, ‘every child has
the right to be protected from maltreatment, neglect, abuse or
degradation’ and in terms of s 28(2), ‘a child’s
best interests
are of paramount importance in every matter concerning the child’.
[20]
In terms of
s 12(1)
of the
Children’s Act, ‘every
child has the
right not to be subjected to social, cultural and religious practices
which are detrimental to his or her well-being’.
Section 56(1) of
the Sexual Offences Act stipulates that ‘whenever an accused person
is charged with an offence under section 3,
4, 5, 6 or 7 it is not a
valid defence for that accused person to contend that a marital or
other relationship exists or existed
between him or her and the
complainant’
[21]
Under
s 3(1)
of the
Recognition of Customary Marriages Act 120 of
1998
, the marriageable age has been recognised to be 18 years for
both girls and boys. A comparison of this section with s 25 of the
Marriage
Act 25 of 1961 creates a level of confusion in that,
according to the latter Act, persons below the age of 18 years are
allowed to
get married as long as they have the consent of the
Commissioner of Child Welfare. This is perceived as sending
conflicting messages
in respect of efforts to end child marriages in
South Africa.
[1]
[22]
In
Jezile
v S
[2]
the appellant, 28 years of age, had removed the complainant, who was
14 years at the time and had forced her by using the custom
of
ukuthwala to be his young bride. He forced her/removed her from her
home, with the assistance of the complainant’s uncles and
grandmother to stay with him at his brother’s place in Fillipi in
the Western Cape. He kept her captive for a period of almost
three
months during which he forced himself on the complainant and had
sexual intercourse with her several times. In the process
the
complainant was assaulted as she was being forced to engage in sexual
intercourse with the appellant.
[23]
After a number of failed attempts, the complainant finally managed to
escape and report the matter to
the police. In dismissing the appeals
against convictions and sentences on the offences of trafficking and
rape, the appeal court
said the following:
‘
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
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”
find that
had he neither trafficked the complainant for sexual purposes (as
defined) nor committed the rapes without the necessary
intention.’
[3]
[24]
Whilst noting that the trial court in
Jezile
had 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’, the court of appeal however,
stressed that ‘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
’
(My emphasis). The court further stated that this could not have been
contemplated by the legislature, as it would fall foul of
our
constitution and would in any event defeat one of the very purposes
for which
s 51
of the
Criminal Law Amendment Act 105 of 1997
was
enacted.
[4]
Other literature
considered
[25]
In a paper entitled ‘Religious Beliefs and Practices contributing
towards child abuse and neglect’
published in the Child Abuse
Research in South Africa Journal Vol 17 No2, a study was conducted by
the University of Limpopo, which
focused on the beliefs and practices
of an Apostolic church in Zimbabwe (the case of Johanne Masowe
Yechishanu Apostolic sect, Harare,
Zimbabwe)’, the authors from the
Department of Social Work: University of Limpopo
[5]
delve deep into the beliefs and practices of the religious sect at
the cited church, practicing the Apostolic beliefs. They state
that
while the study is based upon the Zimbabwean experience, it is,
however, of relevance to all African countries who face problems
as a
result of cultural practices.
[26]
The study found that ‘[c]ases of child abuse and neglect
perpetrated in honour of religious beliefs
and practices are
prevalent in most African and Asian countries’. It was further
established that ‘[r]eligious beliefs and practices
can nurture,
encourage and justify child abuse and that religious inspirations for
child abuse and neglect had been practically ignored
in social
science research’.
[27]
The study further established that ‘[t]he problem of monitoring is
thus more pronounced in the case
of child abuse and neglect’. It
further found that ‘[t]he advent of African initiated Apostolic
Churches has further complicated
the whole situation’. It found
that ‘[i]n general, churches under the auspices of religious
beliefs and practices, are considered
to be protective of children’s
right and guard against abuse’. However, on the contrary, the study
found that ‘it had been
unearthed that religious beliefs reinforced
by some “men of cloth” are actually compounding some of the
unacceptable practices
of exploiting the innocent children in these
churches’.
[28]
The study found further that the issues of freedom of association in
terms of religious beliefs in countries
such as Zimbabwe and South
Africa compound the problem of child abuse under the guise of
religion. Because of this legal protection,
the study found ‘many
mushrooming apostolic sects in Africa that are causing serious abuses
and neglect of children had been largely
ignored in the child abuse
literature’.
[29]
Under the subheading ‘Apostolicism and Child Sexual Abuse’ the
study refers to a 2015 study by Kachere
[6]
which reported that ‘the majority of school going girls in Marange,
some as young as ten, have been married to older men from their
church, the Johanne Masowe Apostolic Sect;’ which according to this
study, ‘is infamous for its following of the practice of
polygamy’.
In that study, Kachere pointed out that most marriages are arranged
between adult men and underage girls. Makubele et
al further found
that ‘religious beliefs and practices also facilitate child abuse
in the form of rape under the guise of marriage
in these churches’
[30]
A further reference is made in the study to an article by Langa
[7]
wherein Langa quotes the then United States ambassador to Zimbabwe,
Bruce Wherton, on his twitter chat on child marriages in Zimbabwe:
‘
Can a child
really be married at 13? No its rape.’
He is said to have
gone on to indicate that the girls involved ended up in violent
marriages, experiencing birth complications and
that it was one of
the causes of high maternal and child mortality rates.
Finally, the
respondents to the study conducted by Makhubele et al told the
researchers that forcing a girl into marriage with a man
much older
than she is before reaching 18 was to them ‘not abuse as long as it
has been sanctioned by God and approved by the church
members’.
[31]
The study concludes by making the observation that ‘[t]hough the
principles of non-judgmental, acceptance
and self-determination
should be highly respected in this regard, where the constitutional
rights of children are undermined, justice
should be sought and those
responsible should be held accountable and uphold the rule of law in
favour of children for their best
interests’. It is further
recommended that an ‘Afrocentric social work perspective should be
applied when working with these
churches since they have an African
origin and roots’.
[32]
Mwambene states in her article that in Zimbabwe, South Africa and
Malawi, research has shown that child
marriages are linked to harmful
practices that are embedded in culture. As a result, she states, ‘law
reform to end child marriage,
therefore, is a difficult task since it
presents a potential conflict between children’s rights and
cultural rights’.
[33]
Mwambene refers to paragraph 19 of the ‘Joint General
Recommendation / General Comment 31 of the Committee
on the
Elimination of Discrimination against Women
[8]
and 18 of the Committee on the Rights of the Child on harmful
practices’ in which she indicates ‘it was considered that child
marriage is a form of forced marriage given that one or both parties
have not expressed their full, free and informed consent’.
[9]
It is stated in the same article that all African countries are faced
with the challenge of child marriages, whether with a high
prevalence
or a low prevalence as in South Africa where the prevalence is at
6%.
[10]
[34]
The article shows that child brides are most likely to be found in
rural areas, amongst the poorest and
most illiterate segments of the
population. The study again found that in Zimbabwe, factors leading
to child marriage included the
persistence of deeply entrenched
social attitudes, which support early and underage marriage; and
religious beliefs, particularly
amongst the Apostolic Church
communities, which encourage girls between 12 and 16 years to get
married in order not to sin by having
sexual relations outside
marriage.
[35]
The study further found that in South Africa an estimated 6% of girls
marry before the age of 18 years
and 1% by the age of 15 years.
[11]
Be that as it may, the study concluded that the fact remains that
child marriage in South Africa is a reality, which is a threat
to the
protection of children’s rights.
[36]
The study referred to the child marriages in South Africa as per
‘Statistics South Africa “Marriages
and Divorces” 2013’.
[12]
These statistics showed that in 2013, ‘14 grooms and 172 brides
under the age of 18 were married according to civil law. In the
same
year nine grooms and 79 brides under the age of 18 were married
according to customary law’. Statistics South Africa also
released
the 2016 Community Survey results indicating ‘that more than 91 000
South African girls between the ages of 12 and
17 years are either
married, divorced, widowed or living with a partner’. Of this
figure KwaZulu-Natal ranked the highest at 25 205
and Gauteng
with 15 929 young girls married before the age of 18 years. The
2016 UNICEF
[13]
data revealed
a rise in child marriages in South Africa.
[37]
The study refers to the South African Law Reform Commission as having
‘proposed the Prohibition of
Forced Marriages and Child Marriages
Bill, 2015 which seeks to outlaw and criminalise all forced and child
marriages as a result
of, among other factors, ukuthwala.
[14]
It also refers to the Gender Directorate
[15]
where it is said to have ‘stressed that South African values,
beliefs and practices
must
be consistent with the constitution which specifically guarantees the
rights of children’.
(My emphasis)
[38]
The study indicates that ‘if the Prohibition Bill becomes law, it
will be the first time that such
child marriages will be criminalised
in South Africa’. Besides this, the bill is expected to give effect
to international law and
the constitutional values of human dignity.
As per this study, the Bill will also ‘require that marriages are
entered into freely
and without any form of coercion and will provide
for the prosecution and imposition of penalties on persons who commit
offences’.
Be that as it may, the Bill is criticised for not
repealing the provisions that ‘allow children to get married in
terms of both
the Marriage Act and the Recognition of Customary
Marriages Act’. It is also further criticised for not amending the
‘provisions
in the
Children’s Act that
are vague in relation to
the minimum age of marriage and the betrothal of children’.
[39]
The study resorts to international instruments (the Joint General
Comment of the African Commission on
Human and People’s rights
(African Commission; and the African Committee of Experts on the
Rights and Welfare of the Child (African
Children’s Committee) on
Ending Child Marriage (2017).
[16]
The paper applauds the position adopted by the Joint General Comment
in that it had ‘effectively laid down a higher standard, reviewing
all legislation that allows the majority age to be attained through
marriage’.
[17]
[40]
These international instruments are commended for obliging ‘state
parties to enact appropriate national
legislative measures that would
guarantee that no marriage took place without the free and full
consent of both parties’.
[18]
The study refers to the ICCPR Human Rights Committee’s General
Comment 28
[19]
which
‘elaborates on the obligation of state parties to eradicate harmful
cultural practices that lead to inequality between men
and women as
follows:
‘
Inequality in the
enjoyment of rights by women is deeply embedded in tradition, history
and culture, including religious attitudes…States
parties should
ensure that traditional, historical, religious and cultural attitudes
are not used to justify violations of women’s
rights to equality
before the law and to equal enjoyment of all Covenant rights.’
[20]
[41]
The study concludes that ‘early marriage is now understood to be
harmful to the health of children’.
[21]
It further states that the ‘international standards stipulate that
where
cultural practices hinder or stand in the way of children’s rights,
the cultural practice must give way’.
(My emphasis)
[42]
Writing on the law and its people, Carmel Rickard (Rickard)
[22]
laments the tragic death of a 14 year old Zimbabwean girl, M[....]
M[....], who died during child birth in July 2021. She describes
this
as a ‘horrific death’ of this young girl. She persists that if
that was not enough, her burial was just hours later by the
Apostolic
Church to which she and her family belonged. This apparently has
stirred up many people in Zimbabwe. Her death came amidst
many months
of international and regional organisations warning about the dire
consequences for child marriage of COVID-19, lockdown
and the
economic stress it causes. Rickard notes in this article that this
young girl’s death and her ‘marriage’ might partly
have
resulted from ‘economic stressors related to COVID-19 since such
marriages inevitably go along with significant bride price’.
[43]
In her article, Rickard refers to the judgment of
Mudzuru
and Another v Minister of Justice, Legal and Parliamentary Affairs
N.O. and Others
,
[23]
a judgment of the Constitutional Court of Zimbabwe, wherein the
lawful age of marriage for both boys and girls was set at 18.
[44]
In terms of
Mudzuru
‘no religious, cultural or other grounds could provide
justification for child marriages’.
Mudzuru
further decided that ‘there could be no special clause allowing a
guardian, a judge, a cultural or church leader to give permission
for
an under-age girl to marry, nor could there ever be an “exceptional
case”’ and that under the constitution
Mudzuru
stated that there was ‘an absolute prohibition on child marriage’.
Section 78(2) of the Constitution of the Republic of Zimbabwe
[24]
provides that:
‘
no person may be
compelled to enter into marriage against their will’
[45]
The article suggests that according to Human Rights Watch director
(HRW), Southern Africa, M[....] had
been forced out of school into
marriage at 13 years of age. It further states this is not uncommon
in the widespread religious sect
to which M[....]’s family belongs
and which sects unite Christian beliefs with traditional cultures.
According to the HRW in Zimbabwe,
indigenous apostolic churches with
such beliefs have ‘millions of followers’; this strength in
numbers in turn makes the potential
for church sanctioned rape of
underage girls disturbing. Despite the
Mudzuru
judgment and
the dictates of s 78, according to HRW the practice continues. Based
on the statement from the HRW director, founded
on a pronouncement by
a member of the apostolic church ‘as soon as a girl reaches
puberty, any man in the church can claim her
for his wife’.
[46]
The article by Rickard correctly laments the inaction of the Harare
Government in failing to outlaw child
marriages despite the enabling
instruments, one of them being the Constitutional Court judgment in
Mudzuru
and its obligations under international law and the
conventions to which it is a party. She further states that when the
Mudzuru
case was argued, the State had defended strenuously
the law that was eventually found unconstitutional. The argument in
this regard
was that ‘girls had to be allowed to marry at 16 and
that a different minimum age for marriage had to be set for boys and
girls
because they came to physical and emotional maturity at
different times’.
[47]
The article sadly states that all this inaction by the State is
fuelled by the quest in numbers for voting
purposes for the ruling
Zanu PF Party. The traditionalists who practice child marriage are
estimated to number in millions and they
make up the indigenous
apostolic churches to which the deceased’s family belonged. The
article states further that banning child
marriage risks alienating
the vote of the members of these churches. This is extremely sad,
that political interests are allowed
to supersede the
constitutionally protected rights of the girl children in favour of
political interests. Even more sad, as things
stand, the relatives of
M[....] as per HRW were quoted as saying ‘the church is planning to
“give” a nine-year-old girl as
a “replacement” to the man who
was regarded by the church as M[....]’s husband’.
[48]
The article states that the family of M[....] is known as well as her
church-sanctioned rapist. However,
there have been no arrests despite
the police having said they are investigating. Despite the
constitutional reforms in the form
of the
Mudzuru
judgment and
the Zimbabwean Constitution, five years later nothing has changed
and, it is doubtful that any investigation will ever
take place into
this tragedy. It is hard to understand the lackadaisical attitude of
the Zimbabwe government where its children are
concerned, considering
that it is a signatory to quite a few international instruments.
amongst these, are:
(i)
Committee on the Rights of the Child on Harmful Practices (CRC)
ratified by Zimbabwe in 1990;
(ii)
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) ratified by Zimbabwe
in 1991;
(iii)
The Convention on the Consent to Marriage, Minimum Age for Marriage
and Registration of Marriage (1964), ratified
by Zimbabwe in 1992;
(iv)
The African Youth Charter (2006) ratified by Zimbabwe in 1994;
(v)
The African Women’s Protocol ratified by Zimbabwe in 2008;
(vi)
The 2014 Declaration by the African Union (AU), urging all member
states to set the minimum age of marriage
at 18 for both boys and
girls.
There are many other
such Regional and International instruments which have not been
incorporated in this judgment.
[49]
It is sad, as noted by Rickard, that even though Lawyers for Human
Rights have addressed the issues of
the ‘apostolic sect’; urging
that the government stops child marriages ‘as they expose young
girls to sexual predators and
(are) tantamount to rape and child
abuse’; Lawyers for Human Rights are reported to have said nothing
about government in-action.
(It can only be hoped that more voices
will join and move the Zimbabwean government to act in the interests
of its children and to
prevent the occurrence of more deaths like
those of M[....] caused by its own inaction).
Findings by the
trial court
[50]
In a well-reasoned judgment, the trial court found that:
(a)
Despite the time lapse between the incidents of rape and her
testifying in court (two years to be precise),
the complainant was
able to give a coherent and detailed version of the events and that
her evidence had not broken down under cross-examination;
(b)
That whatever contradictions were found to exist in the complainant’s
evidence were not material to
the issues in dispute and did not
affect her credibility;
(c)
The evidence of other State witnesses corroborated parts of her
evidence relating to the reasons and time
spent at the accused’s
homestead;
(d)
The medical examination did not assist the State as the doctor was
unable to reach a conclusion as the
alleged incident or incidents (of
rape) occurred one month from the date of the examination.
[51]
In so far as the issue of consent by the complainant, the trial court
found that:
(a)
The complainant was under the guardianship of Mrs Phakathi, and had
unlimited access to her father;
(b)
One of the State witnesses, Mrs Mbhamali, was the mother of the
appellant and had an interest in the outcome
of the case;
(c)
Despite Mrs Mbhamali’s concerns about the age of the complainant,
she did not want to question the actions
of her son, the appellant,
and Mrs Phakathi, the church leader;
(d)
Mrs Phakathi had abused her authority over the complainant, and that,
given the age difference between
the complainant, the appellant and
Mrs Phakathi, even if the complainant had refused (to be part of the
arranged marriage) their
authority over her, however, would have
inhibited her resistance; and
(e)
the visits by the complainant to the appellant’s homestead and his
rented premises could not be construed
as an indication that she
consented to the arrangement made on her behalf.
[52]
In evaluating the defence evidence, the trial court found that:
(a)
The appellant did not impress as a witness, that he had raised new
issues in his evidence that had not
been canvassed with the
witnesses;
(b)
The tone of the appellant indicated that he knew that the complainant
was young;
(c)
In so far as Mrs Phakathi is concerned, the trial court warned itself
that the relationship between the
appellant and her had soured. It
thus warned itself that Mrs Phakathi’s evidence had to be evaluated
with caution and that she
would possibly have a motive to tell lies;
(d)
That Mrs Phakathi had made a poor impression as a witness.
[53]
In so far as the witness called in defence by the appellant, the
trial court found that her evidence
could not carry much weight as
she had sat in court during trial.
[54]
The court found it impossible that the complainant would complain
about the sexual intercourse between
her and the appellant when no
one knew about it, and in the process risk the sanction by the church
if it was found that the sexual
intercourse had been consensual.
[55]
The trial court found it impossible that the complainant would risk
losing the gifts she received from
the appellant by complaining about
the sexual intercourse that had taken place.
[56]
It further questioned the action of the complainant’s father of
complaining and laying a charge if
he had indeed been implicit in
this arranged child marriage. It also found that the father of the
complainant was not aware of the
arranged marriage otherwise the
lobola payment would not have been arranged with the daughter of Mrs
Phakathi, which daughter was
also a party at the commencement of this
arranged marriage.        The
court found that even if
it were to be found that the complainant’s
father had consented to the arranged marriage, he was, however, at
law, unable to consent
on her behalf to sexual intercourse.
[57]
The court further found that upon the evaluation of the totality of
the evidence, it was satisfied beyond
reasonable doubt that the
complainant did not consent to sexual intercourse with the appellant
and that there was no reasonable possibility
that the appellant
believed that she had consented.
[58]
Further findings by the trial court were that the appellant could not
rely on the defences raised by
s 56(2)
(a)
of the Sexual
Offences Act. This section provides as follows:
‘
(2)
Whenever an accused person is charged with an offence under-
(a)
section 15 or 16, it is, subject to
subsection (3), a valid defence to such a charge to contend that the
child deceived the accused
person into believing that he or she was
16 years or older at the time of the alleged commission of the
offence and the accused person
reasonably believed that the child was
16 years or older.’
[59]
In arriving at this finding, the trial court considered that from the
evidence, it was clear that the
appellant’s mother did not believe
that the complainant was old enough to be a partner for the
appellant. The court further found
that the appellant was aware of
his mother’s concerns and that he shared the same concerns.
Further, it found that there was no
evidence before it that the
complainant had deceived the appellant into believing that she was 16
years or older. In the circumstances,
the court found that the
evidence of the appellant and the defence witness that the appellant
reasonably believed that the complainant
was 16 years, could not be
reasonably, possibly true.
[60]
In the final analysis, the court found that after weighing all the
evidence and applying the cautionary
rules, and giving a careful
consideration to the facts, it was satisfied that despite the defects
in the complainant’s case, she
had told the truth. In the
circumstances, it found the version of the appellant not to be
reasonably possibly true and it accordingly
rejected it as false. It
consequently convicted the appellant and Mrs Phakathi, respectively,
as charged.
[61]
I can find no fault with the findings made by the trial court based
on the evidence that was presented
before it. The court warned itself
of the inherent dangers in accepting the evidence of the complainant
without due caution owing
to the fact that she was both a single
witness and a child witness. The court went through all the evidence
with a fine comb. It
raised its concerns where it found reason to be
concerned with the evidence presented. It, with clarity, expressed
the effects of
the defects that it found to exist in each party’s
version. In the circumstances, I can find no misdirection in the
court’s reasoning
and evaluation of the evidence and accordingly
the verdict of guilty it returned in so far as the appellant is
concerned.
Conclusion
[62]
A consideration of the literature and works in this judgment goes to
show that the problem of forced
child marriages is a huge problem and
has infiltrated most of the African Union countries in the Southern
hemisphere. The Republic
of South Africa has not been spared. If
these undesirable child marriages are not achieved through what is
referred to in
Jezile
v S
[25]
as the aberrant ukuthwala custom, it is done under the guise of the
church as it is evident what happens in the Apostolic Church,
as it
has happened in the matter before us.
[63]
It is sad that in most instances of these marriages, the families of
these young ‘brides’ are complicit
in having their underage
children sold in these forced child marriages. The patriarchal
structure of the families plays a prominent
role, as it is evidently
clear in
Jezile
. The mother of the complainant in that case
was not consulted. Her uncles, together with the grandmother of the
complainant took
the decision to get her off school at age 14 and get
her married against her will to the appellant in that matter. Her
mother’s
attempts to spare her the trauma were thwarted by her own
family who returned the complainant to the appellant at every turn
when
she tried to escape. In the matter before us, the trial court
correctly observed that the overseer of the church, Mr Dlamini, was
not concerned with the fact of the arranged child marriage but rather
that premarital sex had taken place.
[64]
The unwillingness of the concerned countries to put in place and
legislate on the enabling instruments
to protect these young girls is
worrisome. In countries like Zimbabwe and Malawi, the reasons
proffered for such failure is a big
concern. It suggests that as long
as the powers that be are reluctant to implement the legislation that
is available to them, despite
all the conventions that are in place,
these child marriages are going to continue unabated.
[65]
It seems clear that the courts, especially the courts with higher
jurisdictions, have to be the buffer
between these young women and
their families and the religious sectors that they belong to. The
courts have to be relentless in this
and they should continue
cracking the whip until the law against these marriages is
entrenched. The courts in
Mudzuru
and
Jezile
have to be
commended in standing their ground in fighting these evil practices
that perpetrate the abuse of these defenceless young
girls.
[66]
In conclusion, I borrow the following words from Rickard:
[26]
‘
August is Women’s
month in SA, a time to highlight issues particularly affecting women
and girls; it would be hard to find a more
urgent target for action
than child marriage. The SA Government has recently published a paper
on its updated, comprehensive marriage
law proposals for comment;
hoping to submit an official Bill to Parliament by 2024. Among the
issues it addresses is a strict minimum
age of marriage, proposing
the ‘complete removal of child marriages’ in the country’s
planned new marriage regime.
But all that is in
the future and meanwhile, given the prevalence of child marriage in
many parts of Southern Africa, it is a chance
that M[....] lived and
died in Zimbabwe rather than SA.’
[67]
I align myself with every sentiment in this excerpt. In the final
analysis and based on the consideration
of the evidence presented
before the trial court, I am satisfied that the appellant was
correctly convicted and that his appeal against
conviction should
fail. The evidence abundantly shows that he was aware that the
complainant was underage. Despite his mother’s
concerns and his own
concerns regarding the complainant’s age, he went ahead and forced
himself on the complainant and raped her
on diverse occasions. The
fact that his own church did not permit sexual engagement before
marriage does not make the issues any
better for the appellant.
[68]
At any rate, the appellant’s church’s beliefs and practices
cannot supersede the laws and the Constitution
of this country which
forbids sexual intercourse with underage girls. In the circumstances,
I make the following order:
The appeal against
conviction is dismissed.
Hadebe J
Moodley J
APPEARANCES
Date of Hearing:

13 August 2021
Date of Judgment:

12
October 2021
Counsel for the
Appellant:
E. M. Chiliza
Durban Justice Centre
Ground Floor, The Marine Building
22
Dorothy Nyembe Street
DURBAN
Tel: 304 3290 / 304 0100
Ref: TP Pillay
Email:
EMChiliza@legal-aid.co.za
Counsel for the
State:

B. Vika
Director of
Public Prosecutions
88
Joe Slovo Street
FNB Building
5
th
Floor
DURBAN
Tel: 031 – 334
5267
Cell: 074 588
3737
Email:
BVika@npa.gov.za
[1]
L Mwambene ‘Recent legal responses to child marriage in Southern
Africa: The case of Zimbabwe, South Africa and Malawi’ (2018)
18
African Human Rights Law Journal 527.
[2]
Jezile v S and Others
[2015] ZAWCHC 31; [2015] 3 All SA 201 (WCC).
[3]
Jezile
para
95.
[4]
Jezile
para
103.
[5]
J C Makhubele et al ‘Religious Beliefs and Practices contributing
towards child abuse and neglect: The case of Johanne Masowe
Yechishanu Apostolic sect, Harare, Zimbabwe’ (2016) 17(2)
Child
Abuse Research in South Africa
37.
[6]
J C Makhubele et al at 40.
[7]
Ibid.
[8]
CEDAW.
[9]
Mwambene, fn 3.
[10]
Mwambene, fn 4.
[11]
Mwambene, fn 37.
[12]
Mwambene, fn 40.
[13]
Mwambene, fn 43.
[14]
Mwambene at 543.
[15]
Ibid.
[16]
Mwambene, fn 79.
[17]
Mwambene, fn 82.
[18]
Mwambene, fn 88.
[19]
Mwambene, fn 89.
[20]
Mwambene at 539.
[21]
Mwambene, fn 92 (The Convention on the Rights of the Child was
ratified by South Africa in 1995).
[22]
C Rickard ‘A matter of Justice’ (2021)
Legalbriefs
.
[23]
Mudzuru and Another v
Ministry of Justice, Legal & Parliamentary Affairs N.O. and
Others
[2016] ZWCC
12.
[24]
Constitution of the Republic of Zimbabwe Amendment Act 20 of 2013
(came into force in May 2013).
[25]
Jezile v S and Others
[2015] ZAWCHC 31
;
[2015] 3 All SA 201
(WCC).
[26]
C Rickard op cit fn 23.