Submitted by Denitsa on
Nvumeleni Jezile v. The State
High Court of South Africa
23 March 2015
Article 24: Health and Health Services
Article 34: Sexual Exploitation
Article 35: Sale, Trafficking and Abduction
Other International Provisions:
Universal Declaration of Human Rights
UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Article 5 (Prejudice), Article 16 (Marriage and Family), Article 26 (Prejudice and Discrimination)
UN Protocol to Prevent, Suppress and Punish Trafficking In Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime
Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa
Africa Charter on the Rights and Welfare of the Child, Article 21 (Child Marriage), Article 27 (Sexual Exploitation), Article 29 (Abduction, Sale and Trafficking)
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, Article 2 (Sale of Children)
Addis Ababa Declaration on Ending Child Marriage in Africa - African Committee of Experts on the Rights and Welfare of the Child (ACERWC)
South African Constitution, Section 211(3) (Customary Law), Section 28 (Rights of Children)
Children’s Act 38 of 2005, Section 1 (Trafficking), Section 12 (Rights of Children), Section 284 (Trafficking), Section 305 (Sentencing)
Sexual Offences Act, Section 3 (Rape), Section 56 (Cultural Practices), Section 71 (Trafficking)
Prevention and Combating of Trafficking in Persons Act 7 of 2013
Recognition of Customary Marriages Act 120 of 1998
The defendant appealed his convictions on human trafficking, rape and assault. All convictions relate to a series of interactions between the defendant, a 28 year old man, and the victim, a 14 year old girl, arising out of a customary marriage between them. The custom of abducting girls for the purposes of marriage, sometimes with the permission of their family, is known as ukuthwala in South Africa.
According to the defendant, “consent” within the practice of ukuthwala is had to be determined in accordance with tradition and custom, which are recognised by the South African Constitution and it is an integral part of ukuthwala that the bride may not only be coerced into marriage, but will invariably pretend to object (in various ways) since it is required, or at least expected, of her to do so in order to maintain her modesty.
Separately, the defendant also argued that, even if the court rejects his above argument, the separate convictions for assault (in addition to rape and trafficking) amounted to a “splitting of charges” in violation of his rights under South African law, given that the assault of which he had been convicted took place as part and parcel of one overall incident to compel the victim to submit to sexual intercourse.
Issue and resolution:
Harmful traditional practices. The issue was whether the charges against the defendant should have been determined within the context of customary marriage (ukuthwala). The Court refused to recognise the custom of ukuthwala as a defence to the criminal charges, but it agreed with the defendant that the charge of assault duplicated his conviction.
The court cited numerous national laws and international conventions and protocols, including the CRC, in support of its conclusion that “[t]here 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.” It concluded that the facts of the case amounted to a situation in which ukuthwala was abused to “justify patently offensive behaviour such as rape, violence and similar criminal conduct under the guise of ukuthwala.”
The court found that the facts of this case amounted to an aberrant form of ukuthwala in that the victim was underage (14 years old) and she did not consent to the marriage at any point, as evidenced by the fact that (among other evidence) she repeatedly tried to escape from the defendant’s home after the marriage took place. Therefore it concluded that “it cannot be countenanced that the practices associated with the aberrant form of ukuthwala could secure protection under our law.”
However, the court found in favor of the defendant regarding his argument that his assault conviction should be overturned, because the assaults arose out of the same incident as that of the rape, and “[t]o uphold the convictions [of assault] 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.”
Excerpts citing CRC and other relevant human rights instruments:
[68.5] The CRC … 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);
 S 28(1)(d) [in the South African 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.
 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.’
 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…’
 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.
 There are a number of statutory provisions in the Sexual Offences Act 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.
 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.
 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.
 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).
 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.
 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;
68.6 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.
CRIN believes this decision is consistent with the CRC. The prohibition of the sale, trafficking and abduction of persons is clear in international law and States have an obligation under Article 35 of the CRC to take all measures to prevent those acts in relation to children. Article 24 of the Convention also requires that traditional practices prejudicial to the child’s health be abolished. Lastly, traditional practices should not be used to justify children’s rights violations.
High Court Case No: A 127/2014
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.