THE CUSTOM OF UKUTHWALA DECLARED UNCONSTITUTIONAL

Jezile v S (National House of Traditional Leaders and others as amici curiae)
[2015] 3 All SA 201 (WCC)

Criminal law – Customary law – Ukuthwala – Conviction for rape and child trafficking – Section 28(1)(d) of the Constitution stipulates that every child has the right to be protected from maltreatment, neglect, abuse or degradation – Court held that child trafficking, and any form of child abuse or exploitation for sexual purposes, is not to be tolerated in our constitutional dispensation – Practice of forcing young girls into marriage against their will, with the consent of their families could not secure protection under our law.

In November 2013, the appellant was convicted on one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm and one count of common assault. He was 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 section 50(2)(a) of the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007.
The background facts were as follows. The appellant had decided at age 28, that he should get married. He wished to marry a young woman under the age of 18. Shortly after making his decision, he spotted the complainant, then aged 14. He had never seen the complainant before, nor did she know him. However, the appellant instructed his family to start the traditional lobola negotiations with the complainant’s family. That took a 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. She resisted the notion, but was forcibly taken to the appellant’s home where she was introduced to the appellant for the first time and informed that he was to be her husband. She was made to assume the role of appellant’s customary law wife. During that time, she was allegedly assaulted by him if she disobeyed him, and was raped by him on several occasions. The matter ended with the complainant fleeing from the appellant’s home and laying criminal charges against him.
Held – Section 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. Section 28(1)(d) stipulates that every child has the right to be protected from maltreatment, neglect, abuse or degradation; and section 28(2) that a child’s best interests are of paramount importance in every matter concerning the child. A child is defined in section 28(3) as a person under the age of 18 years. There is 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.
Central to the present matter was the practice of ukuthwala under customary law. The Court took note of evidence of the practice of forcing young girls into marriage against their will, with the consent of their families, and refused to countenance the argument that the practices associated with the aberrant form of ukuthwala could secure protection under our law.
It found 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. Save only in respect of the convictions on the counts of assault, there was no basis for interference in the trial court’s decision.

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