Jezile v S and Others (A 127/2014) [2015] ZAWCHC 31; 2015 (2) SACR 452 (WCC); 2016 (2) SA 62 (WCC); [2015] 3 All SA 201 (WCC) (23 March 2015)

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[2015] ZAWCHC 31
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Jezile v S and Others (A 127/2014) [2015] ZAWCHC 31; 2015 (2) SACR 452 (WCC); 2016 (2) SA 62 (WCC); [2015] 3 All SA 201 (WCC) (23 March 2015)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High
Court Case No: A 127/2014
DATE:
23 MARCH 2015
REPORTABLE
In
the matter between:
NVUMELENI
JEZILE
............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
NATIONAL
HOUSE OF TRADITIONAL
LEADERS
...........................................
1
st
Amicus Curiae
WOMEN’S
LEGAL CENTRE
TRUST
...................................................................
2
nd
Amicus Curiae
CENTRE
FOR CHILD
LAW
....................................................................................
3
rd
Amicus Curiae
COMMISSION
FOR GENDER
EQUALITY
..........................................................
4
th
Amicus Curiae
RURAL
WOMEN’S
MOVEMENT
..........................................................................
5
th
Amicus Curiae
MASIMANYANE
WOMEN’S SUPPORT
CENTRE
.............................................
6
th
Amicus Curiae
COMMISSION
FOR THE PROMOTION AND PROTECTION
OF
RIGHTS OF CULTURAL, RELIGIOUS AND
LINGUISTIC
COMMUNITIES
...............................................................................
7
th
Amicus Curiae
Court
:
Justice N J Yekiso, Justice V Saldanha
et
Justice J Cloete
Heard
:
22 August 2014, 24 October 2014 and 5 December 2014
Delivered
:
23 March 2015
JUDGMENT
The
Court
Introduction
[1]
On 7 November 2013 the appellant was
convicted in the Wynberg regional court on one count of human
trafficking, three counts of
rape, one count of assault with intent
to cause grievous bodily harm and one count of common assault. All of
the convictions pertain
to a single complainant.
[2]
On 13 February 2014 the appellant was
sentenced to 10 years’ imprisonment on the human trafficking
count, 20 years’
imprisonment on the 3 rape counts (which were
taken together for purposes of sentence), 6 months’
imprisonment on the count
of assault with intent to cause grievous
bodily harm, and 30 days imprisonment on the count of common assault.
The trial court
further ordered that 8 years of the sentence for
human trafficking, as well as the sentences imposed for the two
assaults, would
be served concurrently with the sentence imposed for
the rapes. The appellant was thus sentenced to an effective 22 years’

direct imprisonment. In addition, the trial court ordered that the
appellant’s details be included in the National Register
for
Sexual Offenders in accordance with s 50(2)(a) of the Criminal Law
Sexual Offences and Related Matters Amendment Act 32 of
2007 (‘
the
Sexual Offences Act’
).
[3]
The convictions all relate to a series of
events which occurred over the period January to March 2010, starting
in a remote rural
area of the Eastern Cape and ending with the
complainant fleeing from the appellant’s home in Philippi near
Cape Town and
laying criminal charges against him.
Background
[4]
The facts which became common cause during
the trial are succinctly set out in the trial court’s judgment
and we can do no
better than to largely repeat them, amplifying where
we consider it necessary.
[5]
During December 2009 or early January 2010
the appellant, who was 28 years old at the time, departed from
his residence in
Phillippi for his home village in the Eastern Cape
with the specific intention of finding a girl or young woman there in
order
to conclude a marriage in accordance with his custom. His
stated requirements were that the girl or young woman should be
younger
than 18 years old because, over that age, she would likely
have children. He wanted a virgin. According to the appellant the
ideal
age for his chosen wife was 16 years old.
[6]
During January 2010 the appellant noticed
the complainant, then 14 years old, and decided that she would make a
suitable wife. They
had neither spoken to nor even been introduced to
each other at that stage; and the complainant was entirely unaware of
who the
appellant was or what his intentions were. She had just
commenced Grade 7 at her local school. The only reason why the
appellant
even had occasion to notice the complainant was because she
had been sent by a male family member, whom she referred to as her
uncle, to fetch a cigarette for him from a house at which the
appellant was present at the time. The complainant’s father
is
deceased and she lived with her maternal grandmother and other family
members because her mother worked in a nearby village
or town and was
only able to come home to visit at the end of each month.
[7]
On the same day that the appellant first
saw the complainant, he requested his family to start the traditional
lobola
negotiations with the complainant’s family. He and two of his
family members then approached the complainant’s male
family
members (in a neighbouring village) to start the negotiations. It
would appear that they were concluded over the course
of one day.
Early the following morning the complainant was called to a gathering
of various male members of the two families and
informed by one of
them, who was not known to her, that she was to be married in another
village.
[8]
The complainant was instructed by her uncle
to take off her school uniform and to put on different clothes. Her
resistance to this
instruction was ignored. Her uncle thereafter took
her one hand and another man the other. She was removed from her home
and taken
to the house at which the appellant had noticed her a day
or so earlier. On the way to this house she was introduced to the
appellant
for the first time and informed that he was to be her
husband.
[9]
Having arrived at the appellant’s
house in his home village, the complainant was immediately dressed in
amadaki
(specially designed attire for the new bride, or
makoti
,
which was referred to in the trial as “the
makoti
attire or clothing”).  She was instructed to partake in
various traditional ceremonies as well as attending to certain

household duties for the appellant, which, after resisting, she
apparently did. It was during one of these ceremonies that the

complainant allegedly became the appellant’s customary law
wife. At a stage
lobola
of R8 000 was paid by the appellant to the complainant’s
maternal grandmother, who subsequently gave it to the complainant’s

mother.
[10]
The complainant was unhappy and ill at ease
(the reasons and extent of this were in issue during the trial) and
left her new marital
home a few days into the marriage, hiding first
in a nearby forest and then, on her mother’s instruction, at
another house.
She was found and promptly returned to the appellant
by her own male family members two to three days later. Shortly
thereafter
the appellant informed the complainant that he would be
returning to Cape Town with her. This trip was sanctioned by her male
family
members. They travelled from the Eastern Cape to Cape Town by
taxi and after their arrival, resided with the appellant’s
brother and his wife in their shared home in Phillippi. During the
period in which the complainant resided with the appellant in
Cape
Town, he would leave each morning to seek employment while she was
required to remain behind and attend to household chores.
[11]
Sexual intercourse took place between them
on various occasions (the complainant maintained that there were
seven such occasions
within a matter of a few days after their
arrival in Cape Town, all of which were against her will). Within the
same period the
appellant and complainant argued. During one of their
arguments the complainant sustained an open wound to her leg. It was
shortly
thereafter that the complainant fled from the appellant on
2 March 2010. On the same date she reported the events to the
police,
who took her to be examined by a doctor on 3 March 2010.
[12]
At issue in the trial were the following:
12.1
Whether the complainant travelled willingly with the appellant from
the Eastern Cape to Cape Town, and remained
in Cape Town willingly
with him until she fled, or whether she was trafficked to Cape Town
by the appellant for purposes of exploitation
or abuse of a sexual
nature;
12.2
Whether sexual intercourse took place on at least three occasions;
and if so, if this was with the complainant’s
consent (her age
would only become relevant for purposes of a conviction on statutory
rape if it was found that she had consented
– although she was
14 years old, the appellant claimed that she told him that she was 16
years old); and
12.3
Whether the injury that she sustained to her leg was caused by the
appellant.
[13]
It should be noted that, although the
complainant testified about seven rapes, all of which occurred after
her arrival in Cape Town,
the appellant was only charged with three
rapes. Furthermore, on his own version, sexual intercourse occurred
on two occasions.
According to the appellant, sexual intercourse took
place once before they left the Eastern Cape and once after their
arrival in
Cape Town. This is also relevant when considering the
conviction on the human trafficking count.
The
evidence in the court a quo
[14]
The state adduced the evidence of four
witnesses, namely the complainant, her mother, the police reservist
who had taken her statement
and Dr Narula who had examined her
on 3 March 2010. The appellant (who had exercised his right to
make no admissions
at the outset or to provide an explanation for his
plea of not guilty) testified in his own defence. He called two
witnesses, namely
his sister-in-law (with whom he and the complainant
had resided in Cape Town) and Professor Francois De Villiers, an
expert in
customary law. Given the common cause facts, what follows
is a summary of the evidence of the various witnesses on the disputed

issues only.
[15]
The complainant testified that during her
errand to fetch a cigarette for her uncle, one of the two men who she
met there had asked
her to identify herself by her name which he
already knew. She became suspicious and when she returned with the
cigarette, pleaded
with her uncle never to force her into a customary
marriage. She knew that this had happened to a number of other young
girls and
dreaded the prospect of it occurring to her.
[16]
Whilst being forcibly restrained by being
held by her arms en route to her “marriage” by her uncle
and the appellant’s
family member (a considerable distance
away) she cried and pleaded but was instructed by her uncle to stop.
She was then handed
over to the appellant and two of his family
members who they met along the way. She was similarly restrained by
them for the remainder
of the journey to the appellant’s
village.
[17]
After being instructed to put on her
amadaki
,
the complainant was told to sit behind a door, thereafter to eat and
later to spend the night with the appellant. When she refused
to eat
the appellant’s brother threatened her with a stick. She again
protested and he left her alone. She wept and told
the appellant that
she did not want to be his wife, nor did she want to sleep with him.
She ended up sleeping on the same bed as
the appellant, wrapped in a
blanket, but faced away from him.
[18]
The complainant’s first attempt to
escape was the following morning when she accompanied a female
relative of the appellant
to fetch water from a nearby river. She
changed out of her
amadaki
in bushes nearby and ran away. She was chased by the appellant who
caught and questioned her. She pretended that she had been practicing

for a sporting event. The appellant instructed her to return with him
to his home. She was thereafter ordered to make tea but refused.
A
sheep was slaughtered and she was given something to drink. She threw
the drink away.
[19]
The complainant’s second attempt at
escape was that evening when, on the pretext of fetching water to
wash herself, she again
ran away. She sought shelter at a relative’s
house but was turned away. The relative told her that another young
girl had
previously hidden there but had been found and returned to
her “husband”. The complainant slept in a forest and hid

there for the following day. That evening she walked the long journey
back to her home village. On her arrival she saw that certain
members
of her family were still awake. She was afraid to go inside because
she feared that she would be caught by the male family
members and
returned to the appellant. She slept outside in the garden and hid in
bushes the next day.
[20]
She encountered a woman who told her that
her mother had returned to the village and was looking for her; and
that it was safe to
return home because her mother was alone there.
When the complainant returned, her mother asked if she wanted to be
married. She
replied that she did not, and that she wanted to return
to school. Her mother told her to pack a suitcase. The arrangement
was
that the complainant was to hide in a nearby family house and
then take a taxi to join her mother in the village where she worked.

However the complainant was found in that house by her uncle and
various other men, some of whom were relatives, and taken back
by
them to the appellant.
[21]
Upon her arrival back at the appellant’s
house she was told by the appellant and his uncle to dress herself
again in her
amadaki
.
When she refused, they beat her with a sjambok and sticks until she
agreed. She later overheard that she would be leaving with
the
appellant for Cape Town the following day. She was neither consulted
nor even informed herself of this.
[22]
That night the appellant asked her for
sexual intercourse. She refused. When she awoke the following morning
a taxi was waiting
outside and she was told that she was to leave
immediately with the appellant for Cape Town. She refused. She was
made to get into
the taxi against her will by the appellant and his
relatives. She arrived in Cape Town (a city completely foreign to
her). This
occurred sometime towards the end of February 2010.
[23]
That evening she again refused to eat when
instructed by the appellant, his brother and sister-in-law to do so.
She also again refused
to have sexual intercourse with the appellant.
The appellant’s brother told her that she would have to have
intercourse with
the appellant because she was his wife. Again she
refused. The appellant’s brother held her down while they
removed her panties.
She was struggling and the appellant proceeded
to rape her. After the rape the appellant’s brother returned to
his own room.
The following morning the appellant and his relatives
left for the day and she was locked in the house. She could not leave
the
house because the front door and gates were kept locked at all
times. During the course of her being locked up by the appellant
she
told him that she wanted to attend school. He refused, saying that he
did not want an “educated wife”.
[24]
That evening she again refused to eat. She
was told to draw a bath for the appellant. She complied but refused
his instruction to
take out fresh clothes for him. The appellant told
her to come to bed and she refused. He locked the bedroom door and
took off
his belt. He slapped her hard and she fought back. The
appellant hit her with both an aluminium handle of a mop or broom,
which
broke, as well as with his belt. During their scuffle she
sustained an open wound to her leg. The appellant held her down and
raped
her for the second time. Later that night he raped her a third
time. In the early hours of the following morning he raped her a

fourth time. She was again locked in the house that day while the
appellant and his relatives attended church.
[25]
Upon their return the complainant was
chastised for refusing to wear the
amadaki
headscarf. She refused to cook when instructed. She also refused to
eat. That evening the appellant locked their bedroom door and

demanded sexual intercourse. She refused and he raped her a fifth
time. After she had washed herself, he raped her a sixth time.
Early
the following morning he raped her for the seventh time.
[26]
Before the appellant and his relatives left
the next day, the complainant took R100 cash out of his wallet. She
asked the appellant’s
sister-in-law not to lock the doors and
gates on the pretext that she wanted to wash clothing. The
sister-in-law only locked the
outside gate when they left. The
complainant washed herself and packed a few items of clothing in a
bag. She took a dustbin to
the corner of the yard in order to jump
over the fence. She jumped over the fence and she took a taxi to the
nearest taxi rank.
There she met two women. She showed them the wound
to her leg. One of the women called the police who arrived and took
her to the
police station. Her mother was contacted. She slept at the
police station that night and was taken to the doctor the following
morning. Her brother, who lives in Cape Town, then fetched her.
[27]
The complainant was found by the trial
court to be an excellent witness whose version was not undermined in
any material respect.
She was still visibly traumatised when
testifying almost two years after the events.
[28]
The complainant’s mother’s
testimony may be summarised as follows. During February 2010 she
discovered that the complainant
had been given away in a customary
marriage by her own mother and brother (who is the uncle to whom the
complainant referred during
her testimony). She would never have
consented to the complainant’s “marriage” because
she was too young. She
went home the following week to discover that
the complainant was indeed no longer there. She could obtain very
little information
as to who the complainant had “married”
or where she was.
Lobola
of R8 000 was paid to the maternal grandmother, and in turn
later handed to her. The complainant’s mother subsequently

ascertained that the complainant had run away from her “marital
home” when the appellant came to inform her brother.
Despite
her search the complainant could not be found. On the following day
she received information that the complainant was hiding
in a forest
and sent word for her to come home at a time when her mother and
brother would not be there. The complainant returned
in an hysterical
state, crying uncontrollably. She told her mother that she did not
want to be married and that the appellant was
a violent man. She told
the complainant to pack a bag and early the next morning sent her to
hide at her family house until she
could borrow money to send the
complainant by taxi to where she worked.
[29]
However, her brother and other male family
members discovered the complainant and returned her to the appellant.
She herself was
too scared of the men to interfere, but noting the
child’s distress, begged her not to take her own life. After
the male
family members returned from delivering the complainant to
the appellant for the second time, she was told that the complainant

would be leaving for Cape Town with her new “husband” the
following day. The complainant had telephoned her from Cape
Town
about a week or two later. She repeated that she did not want to be
with the appellant and that he was violent. She asked
the complainant
to persevere until she was able to fetch her in Cape Town. The
appellant called her shortly thereafter reporting
that he had hit the
complainant with a mop handle, but claimed that the complainant was
not seriously injured. A day or so later
the appellant contacted her
again to report that the complainant had disappeared while he was at
work. That night she was contacted
by the police.
[30]
Reservist Constable Tengiwe testified that
she was on duty on 2 March 2010. The complainant arrived at the
trauma section of
the police station with two police officials. The
complainant told her that she had been forced into marriage in the
Eastern Cape
and recounted what had happened to her. The complainant
limped, had a deep wound on her thigh that was starting to heal and a
bruise
on her back. The complainant told her that she had sustained
these injuries when the appellant had assaulted her with a mop or
broom handle when they had argued about her refusal to have sexual
intercourse. The complainant reported that she did not wish to
be
married to the appellant. She wanted to be with her mother and return
to school. Her mother was contacted and the complainant
was taken to
a doctor.
[31]
Dr Narula testified that she had examined
the complainant on 3 March 2010. The complainant appeared
traumatised, fearful and
tearful, still wearing her
amadaki
dress. During examination Dr Narula
noted a huge gaping wound on the lower thigh that had become septic,
as well as two healing
abrasions on the complainant’s left
forearm and a haematoma on her  toe. On gynaecological
examination she found a healing
tear of the hymen, scarring of the
posterior fourchette, redness at the hymen and bilateral vestibular
redness of the vagina, as
well as vaginal discharge. Her findings
were compatible with the history given as well as recent forceful
vaginal penetration by
a penis or object. Dr Narula testified
that the complainant was a virgin prior to sustaining the
gynaecological injuries.
[32]
Dr Narula referred the complainant to the
hospital’s casualty unit to manage her leg wound. The wound was
irrigated and dressed
and the complainant was given a tetanus
injection and antibiotics. She was also referred to a social worker
because she was so
obviously traumatised. It was Dr Narula’s
opinion that the open leg wound was consistent with the complainant
having
been assaulted with the handle of a mop or broom, and that the
injuries on her arm and foot were consistent with the complainant

having been assaulted with a belt.
[33]
The appellant testified of the
complainant’s visible unhappiness on their first night
together. His evidence was that on the
second night (while still in
the Eastern Cape) he asked for sexual intercourse and this took place
apparently with her consent.
Thereafter he could ‘
see
a difference’
in the complainant.
If his memory served him correctly she only disappeared after about a
week. He went to her home to report this
to the complainant’s
uncle, who told him not to bother to keep looking for her because he
(the uncle) would ensure her prompt
return to the appellant as soon
as she was found.
[34]
The complainant was indeed returned to the
appellant by her male family members two days later. The reason which
she gave for running
away was that she had been afraid to ask for
permission to visit her family and had thus sought to ‘
escape’
from the appellant. He told her that there was no need to be afraid
because his family would have granted her permission. However
he was
planning to return to Cape Town. According to the appellant, the
complainant there and then willingly agreed to accompany
him. They
mutually agreed upon their date of departure and left for Cape Town a
week later. By the time of their arrival in Cape
Town he claimed that
they ‘
were getting along very
well’.
[35]
On the second night in Cape Town the
appellant again asked for sexual intercourse and the complainant
willingly complied. It was
only after the complainant received a
telephone call from a female relative on the following day that her
attitude changed towards
him. She became ‘
very
cheeky and she was not respectful’
and told him that she was no longer his
makoti
.
[36]
There were a number of arguments over the
days which followed. During one of these the appellant ‘
lost
control’
and grabbed a mop handle
with which he threatened the complainant. During their ensuing
scuffle the handle broke and struck the
complainant’s leg. He
was so shocked and concerned about the complainant that he arranged
for his sister-in-law to take her
to a doctor for treatment (on two
separate occasions). About two days after the second visit to the
doctor the complainant ran
away.
[37]
The appellant maintained that he had never
assaulted the complainant with a belt. He only aimed the mop handle
at her and it was
because she wrestled with him that it broke and
injured her. He never raped the complainant. His brother had never
held her down
so that the appellant could rape her. He never
instructed anyone to keep her locked in the house during the day. The
complainant
never expressed the wish to return to school. He was
puzzled by the complainant’s allegations against him. His
testimony
was that:
‘
I’m
deeply hurt, because… I don’t know what I am going to do
about this, because now even what has happened between
the two of us,
we didn’t just do it of our own or elope and go and get
married, we involved the elders and this is a traditional
wedding.’
[38]
The appellant was not unduly concerned when
the complainant ran away in the Eastern Cape. He testified that:
‘
This
is a normal thing, always when a makoti is a newlywed, normally she
does do those things of running away and coming back, running
away
and they bring her back, but when the time goes on, she settles down
and stays…’
[39]
The appellant’s sister-in-law
testified that she had not noticed any problems between the appellant
and the complainant during
their time together in Cape Town. The
complainant had not expressed any unhappiness or concerns. The
complainant had in fact told
her that she did not wish to return to
school because she hated it. She had never locked the complainant in
the house. She knew
about the wound to the complainant’s leg
which she described as serious, and maintained that the complainant
had blamed herself
for the injury. She had taken the complainant to
the doctor for treatment. She was ‘
amazed’
by the complainant’s allegations against the appellant. The
complainant had told her that she had run away in the Eastern
Cape
‘
because she didn’t want to
get married
[at]
that
time, she just wanted to have a good time and fun as a single woman’.
The complainant had subsequently changed her mind and decided to
remain “married” to the appellant.
[40]
The appellant’s defence was thus one
of consent. He maintained that the complainant had willingly engaged
in sexual intercourse
on the only two occasions (spanning weeks) that
he had requested this. She willingly travelled with him to Cape Town.
She willingly
remained alone in a house for days on end in a place
completely foreign to her without any friends or support system,
attending
to chores and other duties for him. She never expressed the
wish to return to school. On the contrary, her wish was to abandon
her education. The appellant never forced himself upon her or abused
her in any way; his testimony in this regard was contradictory:
on
the one hand he maintained that he had only asked for sexual
intercourse twice; later in his evidence he conceded that there
had
been other occasions too but that he had not forced himself upon the
complainant when she declined.
[41]
He also maintained that the complainant had
only herself to blame for her leg wound. All that he had done was to
discipline her
when she became defiant and disrespectful after having
a telephone conversation with a female relative. She knew that in
their
culture a “wife” was required to be completely
submissive to her “husband”. The following portion of the

record is relevant:
‘
Okay
so … did you buy yourself a wife? Did you pay her family money
for her? --- No, I didn’t. No. According to the
culture you
don’t buy a wife. You pay lobola for her, not buying.
Yes,
but the lobola is so that she can be your wife. --- Yes, in that
manner you pay lobola.
As
your wife did it mean that she had to do as you told her? Was she a
sub-ordinate to you? Did she have to listen to you as being
your
wife? --- That is right yes.’
[42]
However there was an additional and
important element to the appellant’s testimony. He maintained
that the process which he
had followed to obtain a “wife”
was that of his culture and tradition. His testimony was as follows:
‘
Okay,
Mr Jezile, is there anything else that you would like to explain to
this court? --- What I wanted from them, that of my heart
is to get a
wife and then to use the protocol, to do the right thing, involve the
elderly people so that I can get a wife that
I can stay with, not at
all there to play … (indistinct) to. And I wanted to follow
the tradition and do the right things
and follow my fathers and my
forefathers, to do things according to our tradition.’
[43]
Significantly the appellant’s
evidence was that he believed that his custom did not permit forced
marriages, and thus if the
complainant had ever truly expressed the
wish not to marry him or remain married to him, she would have been
free to leave. This
evidence conflicted with that of the appellant’s
last witness, Professor Francois De Villiers, who was called as an
expert
in customary law.
[44]
His opinion was that the process followed
by the appellant to obtain a “wife” was, broadly
speaking, in accordance with
traditional custom, although it was
common cause that there had been no compliance with the provisions of
the
Recognition of Customary Marriages Act 120 of 1998
. Professor De
Villiers referred to this non-compliance as a ‘
defect’.
His evidence was further that historically women and girls could
indeed be forced into these “marriages”. It was in
this
context that he testified generally about the tension between
traditional practices and constitutional imperatives, and that

various legislative measures had been implemented to safeguard
against such occurrences.
The
trial court’s judgment on conviction
[45]
In evaluating the evidence the magistrate,
mindful of the cautionary rules pertaining to a single, youthful
witness such as the
complainant, found her testimony to be both
honest and reliable. She found that there was no evidence to suggest
that the complainant
had willingly left her home without her mother’s
knowledge or consent to be married to a complete stranger twice her
age.
The undisputed evidence was that the mother’s views and
wishes would in any event have been disregarded by the complainant’s

male relatives. This was borne out by the mother’s futile
attempt to protect the complainant. The mother’s evidence

corroborated that of the complainant about the latter’s
attitude towards the “marriage”, and her escape from
the
appellant within days of it taking place. The trial court concluded
that it was inconceivable that the complainant would willingly
have
subjected herself to the “marriage”. It was even the
appellant’s evidence that the complainant was unhappy
and ill
at ease after her arrival at the “marital home”.
[46]
The trial court also found that the
appellant’s version of events leading up to the departure for
Cape Town was not supported
by the objective facts. The complainant
had tried to escape from the appellant twice before being brought to
Cape Town. On neither
of these occasions had she willingly returned
to the appellant. Not even the appellant suggested that she was
content to be brought
back to him by her male relatives. The trial
court thus reasoned that it was highly improbable that the
complainant would have
willingly boarded a taxi for a destination
completely unknown to her with a man who was still a virtual
stranger, whom she had
described to her mother as violent, within a
day or so after having being forced to return to him.
[47]
The trial court accepted the complainant’s
version of events after her arrival in Cape Town. Her evidence about
the assaults
and at least some of the rapes was corroborated by the
findings of Dr Narula. The court pointed out that Dr Narula’s

observation that the complainant’s leg wound was septic
supported the latter’s evidence that she had not received any

medical treatment, contrary to the assertions of the appellant and
his sister-in-law.
[48]
It was also the trial court’s finding
that if the complainant had indeed enjoyed freedom of movement at the
appellant’s
house in Phillippi, as he alleged, it was most
improbable that, injured as she was, she would have gone to the
lengths that she
did to escape him at the first opportunity.
Furthermore, if the appellant’s version was to be believed, the
complainant could
simply have told him that she wished to leave and
he would not have stood in her way.
[49]
The trial court accepted that even on the
appellant’s version he knew that he had no right to force the
complainant into anything
against her will, which effectively put
paid to any doubt being cast on his
mens
rea
given the court’s acceptance
of the complainant’s version.
[50]
The appellant’s sister-in-law was
found to be a lying witness whose evidence, along with that of the
appellant, was rejected
as patently false. The appellant was thus
convicted on the counts to which we have referred.
Appeal
against conviction
[51]
The appellant thus raised as one of his
defences and grounds of appeal to the charges of trafficking and the
rapes, that he was
in a customary marriage with the complainant at
the time of the incidents. The magistrate was however of the view
that the matter
was not about “…
the
practice of ukuthwala or forced arranged marriages and its place if
any, in our Constitutional Democracy. Rather, this case
is about
whether the state proved that the accused committed the offences he
is charged with and if so whether he acted with the
knowledge of
wrongfulness and the required intent. To this extent only, reference
to the so-called marriage will be made from time
to time.”
On
appeal the appellant contended that the approach adopted by the
magistrate to the relevance of customary law amounted to a
misdirection
and that “…
having
done so … fresh out of the starting blocks
[this]
demonstrates a lack of understanding.”
[52]
The appellant advanced two main grounds of
appeal against his convictions. Apart from that relating to the two
assaults, his essential
contention was that the trial court had
misdirected itself in not proceeding from the premise that the merits
should have been
determined within the context of the practice of
ukuthwala
,
or customary marriage. It was submitted that “consent”
within the practice of
ukuthwala
is a concept that must be determined in accordance with the rightful
place which customary law has in our constitutional dispensation,

because it is an integral part of
ukuthwala
that the “bride” may not only be coerced, but will
invariably pretend to object (in various ways) since it is required,

or at least expected, of her to do so. As the appellant’s
counsel put it in his heads of argument:
‘
[This]
informs the intention of the male and
the most relevant factor in terms of Xhosa custom
[is]
whether the sexual violation of the
female is criminal or a sanctioned form of coercion…depending
on the permutation the
consent of the female
[is]
irrelevant…’
[53]
Insofar as the two convictions for assault
are concerned, it was submitted on behalf of the appellant that, even
if his version
was to be rejected, the convictions themselves
amounted to a splitting of charges, given that both assaults took
place as part
and parcel of one “overall” assault to
compel the complainant to submit to sexual intercourse.
[54]
We were of the view that, given the nature
and the importance of the customary law issue raised in the appeal
and the constitutional
implications thereof, it was appropriate that
relevant state institutions, organizations and/or experts on the
practice of
ukuthwala
in
customary law be invited to apply to assist the court as
amicus
curiae
on the specific issues of
customary marriages and the practice of
ukuthwala
.
To that end letters of invitation were sent under the hand of the
presiding judge to a number of organizations who had an
interest or
expertise on the topic to apply in writing to participate in the
proceedings as
amici curiae
and
to present oral submissions with regard to such applications.
[55]
The appellant and the respondent were
afforded the opportunity of responding to the applications. In
response, the court was favoured
with offers of assistance by the
following institutions:
55.1
The National House of Traditional Leaders, a statutory body
established in terms of the National House of Traditional Leaders
Act
No 22 of 2009, with its main objective being to represent and advance
the aspirations of traditional leaders and their rural
communities at
a national level;
[1]
55.2
the Woman’s Legal Centre Trust, a non-government, legal
advocacy and litigation organization with its core objective
being
the advancement and protection of the human rights of all women and
girls in South Africa, and  particularly women and
girls who
suffer intersecting forms of disadvantage and discrimination;
[2]
55.3
the Centre for Child Law, based at the University of Pretoria, a
registered law clinic that promotes and protects the constitutional

rights of children through advocacy and litigation;
[3]
55.4
the Commission for Gender Equality, a Chapter 9 institution
established under the Constitution
[4]
with a broad mandate to promote respect for gender equality and the
protection, development and attainment of gender equality;
[5]
55.5
the Rural Women’s Movement, an independent non-profit land and
property rights organization that advocates for women’s

independent land, housing, inheritance and property rights and
advocates policy reform in respect of rural women;
[6]
55.6
Masimanyane Women’s Support Centre, a non-profit international
women`s organization that works for the advancement of
the rights of
women and girls with a specific focus and expertise in the
application of the Convention on the Elimination of all
Forms of
Discrimination against Women (adopted in 1979 by the UN General
Assembly, ratified by the SA Government on 15 December
1995);
[7]
and
55.7
the Commission for the Promotion and Protection of the Cultural,
Religious and Linguistic Communities, a state institution
established
in terms of Chapter 9 under the Constitution
[8]
to promote respect for and protect the rights of cultural religious
and linguistic communities.
[9]
Neither
the appellant nor the respondent opposed any of the applications and
having considered the submissions made on behalf of
the applicants
each of them were admitted as
amicus
curiae
by the court in the appeal
proceedings. The
amici
were allowed to submit evidence on the practice of
ukuthwala
under customary law by way of affidavit to which the appellant and
respondent were entitled to respond.
[56]
At
the outset we wish to express our gratitude and appreciation to the
amici
and
the parties for their assistance to the court in dealing with the
complex and contested issue of
ukuthwala
under customary law. We are particularly mindful that the practice of
ukuthwala
has in recent years received considerable public attention and is the
subject of much public debate, inasmuch as its current practice
is
regarded as an abuse of traditional custom and a cloak for the
commission of violent acts of assault, abduction and rape of
not only
women but children as young as eleven years old by older men. These
practices – under the guise of custom - have
been described by
several organisations as a “
harmful
cultural practice”
.
[10]
Legal
framework
[57]
Before turning to the submissions of the
parties and
amici curiae
,
we set out, in broad outline, the relevant constitutional and
legislative provisions, as well as relevant conventions and / or

protocols to which South Africa is a signatory.
[58]
S 211(3) of the Constitution provides that:
‘
The
courts must apply customary law when that law is applicable, subject
to the Constitution and any legislation that specifically
deals with
customary law.’
[59]
S 28(1)(d) [in the Bill of Rights]
stipulates that every child has the right to be protected from
maltreatment, neglect, abuse or
degradation; and s 28(2) that a
child’s best interests are of paramount importance in every
matter concerning the child.
A child is defined in s 28(3) as a
person under the age of 18 years.
[60]
S 39 of the Constitution, which deals with
the interpretation of the Bill of Rights, provides that:
‘
39(1)
When interpreting the Bill of Rights, a court, tribunal or forum
(a)
must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
(b)
must consider international law; and
(c)
may consider foreign law.
(2)
When interpreting any legislation, and when developing the common law
or customary law, every court, tribunal or forum
must promote the
spirit, purport and objects of the Bill of Rights.
(3)
The Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law,
customary
law or legislation, to the extent that they are consistent with the
Bill.’
[61]
S 1 of the Children’s Act 38 of 2005
(“
Children’s Act”
)
defines ‘
trafficking’
in relation to a child as including:
‘
(a)
The … transportation, transfer, harbouring or receipt of
children, within or across the borders of the Republic –
(i)
by any means, including the use of threat, force or other forms of
coercion, abduction…abuse of power or the giving or
receiving
of payments or benefits to achieve the consent of a person having
control of a child; or
(ii)
due to a position of vulnerability,
for
the purpose of exploitation…’
[62]
The following provisions of the Children’s
Act are also relevant:
62.1
S 12(1), which stipulates that every child has the right not to be
subjected to social, cultural and religious practices which
are
detrimental to his or her well-being;
62.2
S 284(1), which prohibits child trafficking;
62.3
S 284(2), which provides that it is no defence to a charge of
contravening s 284(1) that the child or a person having control
over
that child consented to the intended exploitation;
62.4
S 305(1)(s), which makes a contravention of s 284(1) an offence; and
62.5
S 305(8), which provides that any person convicted of an offence in
terms of s 305(1)(s) is, in addition to a sentence for
any other
offence of which he or she may be convicted, liable to a fine or
imprisonment for a period not exceeding 10 years or
to both a fine
and such imprisonment.
[63]
There are a number of statutory provisions
in the Sexual Offences Act (referred to
supra
)
which are relevant:
63.1
S 3, which defines the offence of rape;
63.2
S 56(1), which stipulates that it is not a valid defence to rape to
rely on the existence of a ‘
marital or other relationship’
;
63.3
S 56(8), which appears to be the only limitation in relation to
criminal liability in respect of cultural practices in the
Act, and
provides that a person may not be convicted of an offence in terms of
s 9 or s 22 (exposing bodily parts) if that person
commits such an
act ‘
in compliance with and in the interests of a legitimate
cultural practice’
;
63.4
Part 6 (ss 70-72), which contain the transitional provisions
pertaining to trafficking in persons for sexual purposes, pending
the
adoption of legislation in compliance with the Protocols referred to
therein. These include (with reference to the preamble
to the Act)
the UN Convention on the Elimination of All Forms of Discrimination
against Women of 1979 and the UN Convention on
the Rights of the
Child, 1989 (CRC). South Africa, as a member state, is obliged to
combat and ultimately eradicate abuse and violence
against women and
children;
63.5
S 70(2)(b), which defines the offence of trafficking in similar terms
to that contained in the Children’s Act. S 70(2)(b)(6)
includes
trafficking by means of ‘
the abuse of power or of a position
of vulnerability, to the extent that the complainant is inhibited
from indicating his or her
unwillingness or resistance to being
trafficked…’
;
63.6
S 71(1), which makes the trafficking of any person without their
consent an offence;
63.7
Ss 71(3) and (4), which stipulate that consent can only be ‘
voluntary
or uncoerced’
as defined therein, and excludes a person
submitting to an act as a result of being trafficked; and
63.8
S 56A(2), which provides that the court imposing sentence ‘
shall
consider as an aggravating factor’
that the person: (a) committed the offence with the intention to gain
financially, or receive any favour, benefit, reward, compensation
or
any other advantage; or (b) gained financially, or received any
favour, benefit, reward, compensation or any other advantage,
from
the commission of such offence.
[64]
It is noted that the Prevention and
Combatting of Trafficking in Persons Act 7 of 2013 was assented to on
28 July 2013 but
has still not been enacted. The following
provisions are of relevance to the extent that they indicate the
legislature’s
attitude towards trafficking in compliance with
South Africa’s international obligations. S 4(2) creates as a
separate offence,
a person concluding a forced marriage for the
purpose of exploitation of a child or other person. S 11(1)(a)
stipulates that
consent of the other person is no defence. S 13
imposes hefty penalties including life imprisonment (subject to s 51
of Act 105 of 1997). S 14 lists the ‘
aggravating
factors’
that a court must
consider in sentencing (in addition to any other factors) and
include: (a) whether the victim was held captive
for any period; (b)
whether the victim suffered abuse and the extent thereof; (c) the
physical and psychological effects the abuse
had on the victim; and
(d) whether the victim was a child. ‘
Forced
marriage’
is defined as ‘
a
marriage concluded without the consent of each of the parties to the
marriage’
, but ‘
marriage’
itself is not defined.
[65]
The
Recognition of Customary Marriages Act 120 of 1998 (‘
RCMA’
)
was enacted to recognise customary marriages in accordance with South
Africa’s constitutional obligation, and contains mandatory

requirements for a valid customary marriage
[11]
.
[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 each other
under customary law; and (c) the marriage must be negotiated and
entered
into, or celebrated, in accordance with customary law.
S 3(3)(a) stipulates that if either of the prospective spouses
is a
minor, both his or her parents, or if he or she does not have
parents, his or her legal guardian, must consent to the marriage.
S
3(4)(a) confers on the Minister the power to grant permission to a
person under the age of 18 years to enter into a customary
marriage
if he or she considers such marriage to be desirable and in the
interests of the parties in question, where either prospective
spouse
is below the age of 18 years. However this does not relieve the
parties to the proposed marriage of their obligations to
comply with
all other requirements prescribed by law).
[67]
S8
of the
Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000
prohibits unfair
discrimination against any person on the ground of gender, including:
(a) gender-based violence; and (b) any practice,
including
traditional, customary or religious practice, which impairs the
dignity of women and undermines equality between women
and men,
including undermining the dignity and wellbeing of female children.
[68]
South Africa has also signed and ratified a
number of international conventions and protocols:
68.1
The Universal Declaration of Human Rights, which includes a clause
that marriage shall be entered into only with the free and
full
consent of the intending spouses;
68.2
The UN Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), which requires member states to
take all
appropriate measures to: (a) modify the social and cultural patterns
of conduct of men and women, in order to eliminate
prejudices and
discriminatory customary and other practices (art 26); (b) implement
legislation to supress all forms of trafficking
in women (art 5);
(c) eliminate discrimination against women in all matters
relating to marriage and family relations, and
in particular to
ensure, on the basis of equality of men and women, the same right to
enter into marriage with free and full consent
(art 16(1));
68.3
The UN Protocol to Prevent, Suppress and Punish Trafficking In
Persons, Especially Women and Children, supplementing the UN

Convention against Transnational Organised Crime (“Trafficking
Protocol”) which compels member states to make trafficking
in
persons a criminal offence;
68.4
The Protocol to the African Charter on Human and People’s
Rights on the Rights of Women in Africa, which is to similar
effect
as CEDAW;
68.5
The CRC (referred to
supra
) which stipulates that member
states: (a)  shall take effective and appropriate measures with
a view to abolishing traditional
practices prejudicial to the health
of children (art 24(3)); and (b) shall protect children against
all forms of exploitation,
including trafficking (arts 34 and
35);
68.6
The African Charter on the Rights and Welfare of the Child (ACRWC) in
terms of which: (a) child marriage or betrothal
is prohibited
(art 21(2)); and (b) sexual exploitation and the
inducement, coercion or encouragement of a child to engage
in any
sexual activity is likewise prohibited (art 27). Member states
must take all appropriate measures to prevent the abduction,
sale or
trafficking of children for any purpose, in any form, and by any
person including parents or legal guardians of a child
(art 29);
68.7
The Optional Protocol to the Convention on the Rights of the Child on
the Sale of Children, Child Prostitution and Child Pornography.
Art 2
thereof defines the sale of children as follows:
‘
(a)
Sale of children means any act or transaction whereby a child is
transferred by any person or group of persons to another for

remuneration or any other consideration…’
and
68.8
The Addis Ababa Declaration on Ending Child Marriage in Africa of
11 April 2014, prepared by the African Committee of
Experts on
the Rights and Welfare of the Child (ACERWC) under the auspices of
the African Union.
[69]
There is accordingly an abundance of clear
authority to the effect that child trafficking, and any form of child
abuse or exploitation
for sexual purposes, is not to be tolerated in
our constitutional dispensation. This is furthermore borne out by the
provisions
of
s 51
as read with
Part 1
of Schedule 2 of Act 105 of
1997 to which we refer hereunder.
Submissions
of the parties and the Amici Curiae
[70]
In
August 2009, the South African Law Commission (the SALRC) was
requested by the Gender Directorate in the Department of Justice
and
Constitutional Development to include as a priority in its law reform
program an investigation into the practice of
ukuthwala
.
[12]
The SALRC requested that the following aspects be included in the
investigation: the impact of
ukuthwala
on the girl child; the appropriateness, and the adequacy, of the
current laws on
ukuthwala
;
and whether or not the laws upheld the human rights of the girl child
(taking into consideration the principle of “
the
best interests of the child”
).
[13]
The
amici
and parties also very helpfully referred the court to a number of
academic articles in law journals and newspaper reports about
the
practice of
ukuthwala
,
narratives of instances of abuse of young children and opinions on
the constitutionality of the practice of
ukuthwala
.
[71]
In
the affidavit filed on behalf of the National House of Traditional
Leaders (NHTL), Inkosi Sipho Etwell Mahlangu, a senior traditional

leader of the Ndzundza Mabusa Traditional Community and leader of the
delegation from Mpumalanga to the National House of Traditional

Leaders, stated that as a result of the confusion surrounding the
practice of
ukuthwala
,
the NHTL proactively, and together with customary law experts from
various communities in South Africa, produced a White Paper
on the
practice.  The White Paper has been submitted to Parliament for
consideration.
[14]
We are
therefore also mindful that the practice is receiving the attention
of not only the affected communities, but also relevant
statutory
bodies, organs of civil society and both the executive and
legislature.
[72]
It is not necessary for purposes of this
judgment to set out in detail the contents of the evidence presented
by the
amici
in their affidavits. What is of significance though are the common
threads in the evidence of the experts, activists and in the

submissions of all the
amici
with regard to the practice of
ukuthwala
in both its traditional conception and the present and prevailing
practice of the custom. Professor Ronald Thandabantu Nhlapo,
a
renowned expert on customary law, and author of several publications
on the topic who chaired the advisory committee that assisted
the
SALC in the development of the Discussion Paper in Project 138,
explained in an affidavit that it was critical to understand
that
customary law posits both regular and irregular means of initiating
and concluding a customary marriage.
Ukuthwala
is one such irregular method which would, if the precepts of the
custom were correctly followed, eventually lead to the conclusion
of
a valid marriage under customary law. Nhlapo explained that the
regular method for the conclusion of a customary marriage entails
a
proposal of marriage by the intended bridegroom’s family, which
is extended to the family of the intended bride, and, if
accepted,
negotiations with regard to the payment of
lobola
by the betrothed man’s family to the betrothed woman’s
commences. Once the negotiations are concluded and the
lobola
fixed, a series of what he termed “
highly
ritualized ceremonies,”
which
vary amongst different traditional communities, occur, and which
formalises the relationship. He explained that there are
instances
where circumstances do not readily permit for the regular method of
pursuing a customary marriage. In such circumstances
customary law
allows for a number of “
irregular
means”
for circumventing
obstacles with a view to commencing marriage negotiations.
Ukuthwala
is one such means, of which both the traditional and essential
features are:
72.1
the woman must be of marriageable age, which in  customary law
is usually considered to be child-bearing age;
72.2
consent of both parties is necessary to perform
ukuthwala
.
He notes though that there are instances where a woman would be taken
unaware and acquiescence in the process only occurs after
the fact.
If however the woman does not agree the process fails and her father
could institute a civil action against the man’s
guardian;
72.3 as part of the
process, the parties would arrange a mock abduction of the woman at
dusk. The woman would put up a show of resistance
for the sake of
modesty but in fact would have agreed beforehand to the arrangement;
72.4
the woman would then be smuggled into the man’s homestead and
placed in the custody of the women folk to safeguard her
person and
reputation. The father of the man would thereupon be informed of the
presence of the woman in his homestead and of his
son’s desire
to marry;
72.5
sexual intercourse between the couple is strictly prohibited during
this period. If it does occur between the couple either
willingly or
by coercion, it is punishable by the payment of a fine or “
bopha”
of one herd of cattle to the woman’s father. This, Nhlapo
remarks, is akin to damages for seduction at common law; and
72.6
the man’s family would then send an invitation to the woman’s
homestead either on the day of the mock abduction
or on the following
morning to inform her family that she was with his family. This would
be a signal to the woman’s family
that the man’s family
wished to commence negotiations for their marriage.
[73]
Nhlapo contends that a pivotal tenant of
customary law is that no marriage is possible without the consent of
the woman’s
parents. Therefore if following an
ukuthwala
the woman’s family rejects the proposal she has to be returned
to her home along with the payment of damages for the unsuccessful
ukuthwala
.
If on the other hand her family accepts the proposal she would be
returned to her home to be prepared for the nuptials and regular
lobola
negotiations would commence. Nhlapo points out that the process of
ukuthwala
is not a marriage in itself, but, properly understood, is the method
instigated by willing lovers to initiate marriage negotiations
by
their respective families. He explained that there are several
circumstances under which
ukuthwala
could be resorted to by a couple that wished to marry, the foremost
being:
73.1
When a woman objected to an arranged marriage and would rather marry
a lover of her choice;
73.2
When the woman’s family objected to her marrying the man of her
choice;
73.3
Where the man was unable to afford and secure marriage through the
payment of
lobola
in full; and
73.4
Where time was off the essence and it was necessary to conclude
marriage especially in instances where the woman was pregnant.
[74]
Nhlapo was of the view  that
ukuthwala
has to be seen as a self-directed form of betrothal by a man and
woman to each other, subject to parental approval, and is
a
collusive strategy of the couple to counter the influence of extreme
parental authority and to give effect to the will of young
lovers.
The first
amicus
,
NHTL, described this traditional form of
ukuthwala
as “
innocuous, romantic and a
charming age old custom”.
[75]
Having considered the record of the trial
in the court
a quo
,
Nhlapo was of the view that
ukuthwala
was not properly performed in the matter. The young age of the
complainant, her lack of consent and the fact that
lobola
was paid before the
ukuthwala
occurred indicated that it was in fact not a true instance of
ukuthwala
.
He noted though that this was not a unique situation, as the
Discussion Paper traversed several situations in which
ukuthwala
was abused to justify patently offensive behaviour such as rape,
violence and similar criminal conduct under the guise of
ukuthwala
.
[76]
This “
misapplied
form”
of the customary practice
was also described by Inkosi Mahlangu as a perversion of the custom
and “
aberrant”
,
in which young women or girls are abducted – and usually
subjected to violence, including sexual abuse and assault –
to
coerce them into submission. The aberrant form of
ukuthwala
often occurs with the agreement of the girl child’s parents and
family, who are paid a fee – improperly described as
“
lobola”
- for permission “
to abduct their
daughter.”
Nhlapo noted that the
parents and family of the girl in such circumstances are usually from
poor socio-economic circumstances, trapped
in the cycle of poverty,
and that the money or cattle derived from the abduction of the girl
child for the marriage is unfortunately
often attractive.
[77]
In the  supporting affidavits filed on
their behalf the fourth, fifth and sixth
amici,
while acknowledging the traditional concept of
ukuthwala
described by both  Nhlapo and Inkosi Mahlangu, voiced the
opinion that the appellant’s conduct was not only an aberrant

form of
ukuthwala
,
but also indicative of a widespread practice in the many communities
in which they worked. In their accounts of the practice,
young girls
are often forced into unions with their abductors, in many instances,
with the complicity of their families, who are
paid the “
lobola”
upfront. Girl children are often abducted, raped and beaten in an
effort to force them into submission as young brides.
[78]
These
amici
very appropriately described this practice as a most severe and
impermissible violation of women and children’s most basic

rights to dignity, equality, life, freedom, security of person and
freedom from slavery. They noted though that while they and
many
other organisations condemned such conduct, the practice of the
aberrant form of
ukuthwala
relies on a degree of participation and acceptance in parts of very
many communities. They described the practice as no more than
sexual
slavery under the guise of a customary practice. They also shared the
view expressed by Nhlapo and Inkosi Mahlangu that,
to a large extent,
the practice arose and remains prevalent because of widespread
poverty, especially in rural areas.
[79]
In their submissions, the fourth, fifth,
sixth and seventh
amici
also
expressed the view that both “
forms”
of
ukuthwala
,
the traditional and aberrant, feed on the patriarchal nature of
customary law, and in this regard referred to the remarks of Langa

DCJ (as he then was) in the context of the customary law of
succession in the matter of
Bhe and
others v Magistrate, Khayelitsha and Others (Commissioner for Gender
Equality as Amicus Curiae)
[2004] ZACC 17
;
2005 (1) SA
580
CC at para [78] in which he described customary law as “
a
system dominated by a deeply embedded patriarchy which reserved
for women a position of subservience and subordination and
in which
they were regarded as perpetual minors...”
They contended that there were echoes of such patriarchy even in the
relatively benign form of
ukuthwala
described by Nhlapo. They submitted though, correctly in our view,
that this was not a debate that this court was required to deal
with
in the appeal before us.
[80]
The
Legal Resources Centre, who represented the fourth, fifth, sixth and
seventh amici at the hearing of the appeal, presented argument
on the
status of customary law in South Africa with reference to the
relevant  provisions of the Constitution, and decisions
of the
Constitutional Court in the following  matters:
Gumede
v President of the Republic of South Africa and Others
2009 (3) SA 152
(CC) at para [22];
Pilane
and Another v Pilane and Another
2013 (4) BCLR 431
(CC);
Bhe
& Others v Khayelitsha Magistrate and Others
[2004] ZACC 17
;
2005 (1) SA 580
(CC) at para
[41]
;
Alexkor
and Another v Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC) at para
[51]
.  For the determination of the
content of customary law the court’s attention was directed to
the process formulated
by Van Der Westhuizen J in the matter of
Shilubana
and Others v Nwamitwa
2009 (2) SA 66 (CC).
[15]
[81]
The court’s attention was also
directed to the opinions expressed by Nhlapo and Inkosi Mahlangu, on
which counsel on behalf
of all the
amici
submitted that, in application of the factors outlined by Van Der
Westhuizen J in
Shilubana and Others
(above), only the traditional form of
ukuthwala
could be recognized under our law.
[82]
Nhlapo argued that inasmuch as
ukuthwala
is no more than a portal, albeit an irregular one, to a marriage, the
substantive minimum requirements prescribed by the RCMA must
by
necessary implication apply to the validity of
ukuthwala
.
A version of
ukuthwala
that permitted a marriage to follow when these requirements were not
met would not only be inconsistent with the Constitution but
would
also be inconsistent with the RCMA. In this regard the
amici
pointed out that the Constitutional
Court in
Mayelane v Ngwenyama and
another
(Women’s Legal Centre
Trust and Others as
amici curiae
)
2013 (8) BCLR 918
(CC) has already held that consent, albeit in the
context of a polygamous marriage, is a necessary requirement for a
valid customary
marriage, and the court remarked at paras [74], [75]
and [83] as follows:
“
[74]
Given that marriage is a highly personal and private contract, it
would be a blatant intrusion on the dignity of one partner
to
introduce a new member of that union without obtaining that partners
consent.
[75]
In accordance with the Court’s jurisprudence requiring the
determination of living customary law that is consistent with
the
Constitution, we thus conclude that Xitsonga customary law must be
developed, to the extent that it does not yet do so, to
include a
requirement that the consent of the first wife is necessary for the
validity of a subsequent customary marriage. This
conclusion is in
accordance with the demands of human dignity and equality. These
demands are evident from the terms of the Recognition
Act…
[83]
The Recognition Act is thus premised on a customary marriage that is
in accordance with the dignity and equality demands of
the
Constitution. A customary marriage where the first wife has consented
to the further marriage conforms to the principles of
equality and
dignity as contained in the Constitution. Where the first wife does
not give consent, the subsequent marriage would
be invalid for
non-compliance with the Constitution.”
[83]
Nhlapo contended that in customary law,
however, the consent of both the man and the woman is
already
a requirement for a valid
ukuthwala
.
This view was shared by Inkosi Mahlangu on behalf of the first
amicus
curiae
.
[84]
A
further requirement for a valid customary marriage considered by the
amici
was the issue of the permissible marriageable age. Nhlapo recorded
that amongst the AmaXhosa, marriageable age for a woman is considered

to be when she is able to bear children. However given the clear
indication by the legislature, it appeared that for an
ukuthwala
to be considered validly performed, the parties thereto must either
be above the age of eighteen or have acquired parental consent
(who
may also ratify the arrangement
ex
post facto)
.
Nhlapo claimed that this comported with the position at customary law
that if the
ukuthwala
did not lead to the commencement of marriage negotiations, absent the
consent of the woman’s parents, then damages for the

unsuccessful attempt would become payable. It should be noted though
that during the course of oral argument the
amici
raised
what appeared to be a measure of uncertainty about the minimum age,
inasmuch as there was a lack of clarity with regard to
whether a
child below the age of sixteen years old but above twelve could
lawfully be handed into marriage by her parents.
[16]
Needless to say, these concerns should be addressed in the pending
law reform process. Pending such process the provisions
of the RCMA
and the Marriage Act No 25 of 1961 remain prescriptive.
Evaluation
[85]
It is in the context of the evidence with
regard to the content of
ukuthwala
as it is traditionally practiced and the practice in its “
aberrant”
form that the defences raised by the appellant on appeal must be
considered. It appeared that the appellant conceived of
ukuthwala
as a form of marriage contrary to the opinions of the experts and the
amici
(that
it is no more than a portal that commenced the process of marriage
negotiations). In his evidence at the trial the appellant
claimed
that he had specifically travelled to the Eastern Cape to obtain a
wife in accordance with his traditional customs. After
literally
selecting the complainant as the person he wished to marry he
entrusted the negotiations to his family and her uncles.
An amount of
lobola
of
R8000 (two cows) was agreed to and the complainant was handed over to
the appellant and his family by the uncle of the complainant
and
taken to their village whereupon she was groomed in the traditional
amadaki
as
his young bride. He testified that although the complainant initially
did not appear to be “
happy,”
after what he claimed to have been
consensual sex between the two of them she carried out her chores as
a young bride and he was
left with no reason to think that she was an
unwilling wife anymore. He claimed that he understood that it was
necessary in his
custom for the complainant to have consented to
entering into the marriage. He likewise believed she was also
required to have
consented to sexual intercourse with him.
[86]
Central to his defence at his trial however
was the appellant’s claim that the complainant had as a fact
consented to their
customary marriage and the sexual intercourse
between them. Moreover he claimed that she had willingly relocated to
Cape Town as
his wife. The appellant had on his own version not
relied on a practice of
ukuthwala
that required any measure of coercion of the complainant. He claimed
though that due to the fact that her uncles and his family
had
entered into the negotiations, and arrived at an agreement as to the
amount of the
lobola
that he paid, and because her family had willingly handed the
complainant over to him in marriage and returned her when she
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 modesty
[17]
.
In this regard both Nhlapo and Inkosi Mahlangu confirmed such conduct
on the part of a
consenting
female in the “abduction” (our underlining).  The
appellant contended that this created an ambiguity about consent;
and
with reference to the evidence claimed that when the complainant ran
away on the two occasions (which he admitted), the first
in the
Eastern Cape and the second in Philippi, it was no more than in
accordance with such long standing and recognised practice.
[88]
In respect of the incident in the Eastern
Cape, he claimed that she had said to him that she had only wanted to
visit her family,
but was afraid that he and his family would not
have allowed her to do so.  The trial court found, and correctly
in our view,
that the running away by the complainant could not on
the evidence have been an indication of any pretence on her part.

If anything, the evidence with regard to her running away in the
Eastern Cape, walking through a forest at night, alone, sleeping
in
the open and exposed to the elements was nothing more than a
desperate attempt on her part at escaping from the appellant.

It is therefore in our view nothing more than a cynical attempt on
the appellant’s part to claim that he harboured a belief
that
when the complainant ran away, she did so out of sheer modesty, and
his reliance on the customary practice is entirely misplaced.
[89]
He claimed in defence of the charge of
trafficking that her family was fully aware of his intention to bring
her to Cape Town and
had not objected to her relocating with him.
Moreover, the trial court did not find, on a careful examination of
the evidence relating
to the relocation and correctly in our view,
that the complainant had consented to the customary marriage, the
incidents of sexual
intercourse with him, and that she had willingly
relocated to Cape Town.   The appellant claimed though that
the complainant
had willingly relocated from the Eastern Cape to Cape
Town and his reliance on the fact that her family and uncles in
particular
could have exercised such consent on her behalf is
irreconcilable with his claim that she had in fact consented.
[90]
With the helpful insights of the experts on
the practice of
ukuthwala
and submissions of the
amici
,
it became apparent during the appeal that the offences for which the
appellant was charged took place
after
a “traditional”
ukuthwala
would have occurred; this is because the trafficking and sexual
assaults occurred after the customary “marriage”.
Therefore the appellant could not in any event have placed reliance
on the practice of
ukuthwala
(in the traditional sense) as justification for his conduct. However
what he did attempt to do was to rely on the aberrant form
of
ukuthwala
as being the living form of customary law to justify his conduct.
[91]
In clarification of the relevance of the
appellant’s reliance on the practice of
ukuthwala
in customary law, the trial court had specifically put to De Villiers
that the appellant had not asserted any right under customary
law to
have married or to have had sexual intercourse with the complainant
without her consent, nor to have removed her from the
Eastern Cape to
Cape Town against her will. De Villiers’ response is fully
encapsulated in the following concluding remarks
he made in his
testimony;
“
---Net
hoe simpatiek ʼn mens ook al wil wees ten opsigte van
tradisionele lewende gewoontereg mag mens nooit romantiseer daaroor

soos wat soms ʼn bietjie gedoen word nie en moet mens gedagtig
wees dat die waardigheid en gelykheidsbeginsels van die Grondwet
so
belangrik is dat selfs die Konstitusionele Hof onlangs in sy
meerderheidsuitspraak gesê het ʼn  man moet vir
sy
eerste vrou se toestemming by haar kry voordat hy sy tweede vrou mag
trou.  So die vrou se toestemming word baie vooropgestel
en dit
is iets wat in hierdie geval ongelukkig miskien nie gebeur het nie.”
[92]
The trial court found and correctly so,
that the appellant had not asserted any customary law precept to have
justified his conduct,
or that he had acted in the belief that he had
entered into a customary marriage that permitted sexual coercion. It
appeared however
on appeal that the appellant re-asserted a reliance
on the practice of
ukuthwala
,
albeit in its aberrant form, which was permissive of coercion in
respect of the sexual assaults to subdue her, and that her family

(her uncles in particular) had negotiated the payment of the
lobola
for the marriage and had not objected to her removal to Cape Town.
[93]
In
the initial heads of argument filed on behalf of the appellant on
appeal, his counsel quoted an excerpt
[18]
from an article by visiting Yale University student Ms N Karimakwenda
titled “
Today
it would be called rape: a historical and contextual examination of
forced marriage and violence in the Eastern Cape by Nyasha

Karimakwenda 2013 Acta Juridae 339 (at 352T)
in
support of his contention as to the content of the practice.
Karimakwenda argues that violence was always a part of the
traditional
form of
ukuthwala
and explored the continued prevalence of violence in the present day
practices and more generally the use of violence in relationships.

However the appellant’s reliance on this insightful piece of
research in order to justify his conduct is, in our view, misplaced.

Counsel for the appellant also referred to an article of K Wood
“
Group
rape in the post-apartheid South Africa”
(2005)
7(4) Culture, Health & Sexuality 303 at 313-314
[19]
:
‘
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 appellant had
effectively entered
into what he termed a “
putative
customary union.”
[95]
However,
in our view, it cannot be countenanced that the practices associated
with the
aberrant
form of
ukuthwala
could secure protection under our law. We cannot therefore, even on
the rather precarious ground of the assertion by the appellant
of a
belief in the aberrant form of
ukuthwala
as constituting the “
traditional”
customs of his community, which led to a “
putative
customary
marriage,”
[20]
find that he had neither trafficked the complainant for sexual
purposes (as defined) nor committed the rapes without the necessary

intention.
[96]
We can furthermore find no fault with the
trial court’s credibility findings, nor with its reasoning and
conclusions in respect
of the convictions on both the trafficking and
rape counts.
[97]
Insofar as the two convictions for assault
are concerned, it is our view that these amount to a duplication of
convictions. In
S v BM
2014 (2) SACR 23
(SCA) at para [3] the relevant test was formulated
as follows:
‘
It
is apparent that charging Mr BM with two separate counts, arising out
of what was clearly one and the same incident, involved
an improper
duplication (splitting) of charges. It has been a rule of practice in
our criminal courts since at least 1887 that
“where the accused
has committed only one offence in substance, it should not be split
up and charged against him in one
and the same trial as several
offences”. The test is whether, taking a common sense view of
matters in the light of fairness
to the accused, a single offence or
more than one has been committed. The purpose of the rule is to
prevent a duplication of convictions
on what is essentially a single
offence and, consequently, the duplication of punishment. Its
operation is well illustrated by
the example given in
R
v Kuzwayo
, of the theft of 10 apples
from an orchard on one occasion, where there is only a single
offence, and the theft of one apple a
day over 10 days, where there
are 10 offences. Here, if there were an offence it was patently a
single offence committed with a
single intention. It should not have
been split into two charges.’
[98]
On the complainant’s own version, the
assaults with the mop handle and the belt took place because the
appellant wanted to
subdue her so that he could rape her. The
assaults themselves were the precursor to that rape. They immediately
preceded the rape.
As such the assaults arose out of the same
incident as that of the rape. We thus conclude that the assaults
formed part of a single
offence, namely rape, committed with a single
intention. To uphold the convictions on these two counts would amount
to a duplication
of convictions on what is essentially a single
offence and consequently, would amount to a duplication of
punishment.
Sentence
[99]
It is trite that a court of appeal may only
interfere with a sentence imposed by the trial court if there has
been a material misdirection
or the sentence imposed is shocking,
startling, or disturbingly inappropriate.
[100]
As a first offender for the multiple rape
of a minor, and for trafficking a person for sexual purposes, the
appellant faced life
imprisonment in terms of Part 1 of Schedule 2 of
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
, unless the
trial court was satisfied that substantial and compelling
circumstances existed which justified the imposition of a
lesser
sentence in accordance with
s 51(3).
However the charge sheet in
respect of the count of trafficking did not reflect the minimum
sentence provision.
[101]
We note the distinction between
Part 1
of
Schedule 2 (which refers to s 71 of the Sexual Offences Act) on the
one hand, and s 305(8) of the Children’s Act on the
other,
which stipulates that a maximum of 10 years imprisonment may be
imposed for child trafficking. It would appear that the
distinction
lies in the purpose of the trafficking, given that s 285(1) of the
Children’s Act (creating the statutory offence
of child
trafficking) does not specifically refer to trafficking for sexual
purposes. This indicates to us that the legislature
regards the
offence of trafficking for sexual purposes as a particularly heinous
crime, punishable by the most severe sentence
of imprisonment which a
court can impose.
[102]
Again, the trial court’s approach to
sentencing the appellant and the sentences which it imposed cannot be
faulted. It correctly
pointed out the failure by the state to reflect
the minimum sentence of life imprisonment for trafficking for sexual
purposes in
the charge sheet. It thus correctly found that in the
interests of justice the court’s ordinary penal jurisdiction
would
have to prevail.
[103]
The trial court carefully weighed the
well-known triad of the nature of the offences, the appellant’s
personal circumstances,
and the interests of society. It paid due
regard to the probation officer and victim impact reports. Their
contents form part of
the record and will thus not be repeated
herein. The trial court accepted that the appellant’s moral
blameworthiness was
mitigated by the belief which he held concerning
traditional practices, and accepted that in his own mind the
appellant had not
foreseen the catastrophic consequences to the
complainant when he set in motion the course of events. We wish to
emphasise however
that in our view, any diminishing of the
appellant’s moral blameworthiness must be clearly distinguished
from the notion
or perception that any aberrant form of custom or
traditional practice can of itself constitute a substantial and
compelling circumstance.
This could never have been contemplated by
the legislature, as it would fall foul of our Constitution, and would
in any event defeat
one of the very purposes for which s 51 of Act
105 of 1997 was enacted.
[104]
The trial court also correctly found that
the involvement of the complainant’s male family members and
grandmother was nothing
more than a neutral factor insofar as the
appellant’s own blameworthiness was concerned. It thus found
that substantial and
compelling circumstances existed which justified
the imposition of a lesser sentence than that prescribed on the
counts of rape.
Similarly no criticism can be levelled at the
sentence imposed by the trial court when exercising its ordinary
penal jurisdiction
on the count of trafficking.
Conclusion
[105]
In the result, save only in respect of the
convictions on the counts of assault, there is no basis for this
court to interfere in
the trial court’s decision.
[106]
We thus make the following order:
1.
The appeal succeeds in part.
2.
The appellant’s convictions on
the counts of assault with intent to cause grievous bodily harm, and
common assault, are hereby
set aside.
3.
Save as aforesaid, the appellant’s appeal against his
convictions and sentences is dismissed. The convictions and sentences

are confirmed.
N
J YEKISO
V
SALDANHA
J
I CLOETE
For
AppellantAdv Mornay Calitz
Instructed
byLegal Aid, Cape Town
For
Respondent Adv B E Currie-Gamwo
Adv
Maria Marshall
The
National House of Traditional Leaders
Adv S
Poswa-Lerotholi
Instructed
by The State Attorney
The
Women’s Legal Centre Trust
Adv Z
Titus
The
Centre for Child Law
Ms K Ngidi
The
Commission for Gender Equality
Adv M Bishop
&
The
Rural Women’s Movement Adv U K Naidoo
The
Masimanyane Women’s Support Centre
The
Commission for the Promotion of the Rights,
of
Cultural Religious & Linguistic Communities
Instructed
by Legal Resources Centre,
Cape
Town
[1]
Notice
of application to be admitted as Amicus Curiae, affidavit by Inkosi
Sipho Etwell Mahlangu, p 3 para 5.
[2]
Affidavit
by Ms.Hoodah Adrahams-Fayker, p 5, paras 4 and 5.
[3]
Written
Submissions by the CCL, p 3 para 1.
[4]
Sections
181 and 187 of Act No. 108 of 1996.
[5]
Affidavit
by the chairperson Mr. Dizline Mfanozelwe Shozi, p 4 para [9].
[6]
Affidavit
by Shozi, p 5 para [13].
[7]
Affidavit
by Shozi, p 6 paras [18] and [19].
[8]
Sections
181 and 185
[9]
Affidavit
by Shozi, p 7 paras [21]-[23].
[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.
[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.”
[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.
[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.”
[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”.
The
y
also
referred the court to South Africa’s international law
obligations with regard to the rights of children and comparative

international case law.
[16]
Nhlapo’s
affidavit p 10 para 19.2; Inkosi Mahlangu’s affidavit p 296
para 44.1.
[17]
Appellant’s
Heads of Argument para 21-23 page 588
[18]
Appellant’s
heads of argument paras [20] – [25] p 588.
[19]
Appellant’s
heads of argument para [29] pp 588 – 589.
[20]
Appellant’s
heads of argument p 590 of the record para [38].