Confirming the Virginal Status of Children: The Impact of Non-Compliance with Section 12(3) to 6 of the Children’s Act
The Constitutional Court, as well as our Constitution, recognises customary law as a source of law. This is in line with the provisions in sections 30, 311 and 211(3)2 of the Constitution, which acknowledge customary law by recognising cultural and linguistic rights. In the Richtersveld case3, the Court stated that, while in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of South African law. Its validity must now be determined by reference not to common law, but to the Constitution. The courts are obliged by section 211(3) of the Constitution4 to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law.5 In doing so, the courts must have regard to the spirit, purport and objects of the Bill of Rights. The qualifier in the application of customary law is that the applicable custom must be in line with the values of the Constitution or any other relevant statutes.6
As it has played out in South Africa, virginity testing has caused much controversy and great debate. In 2004, Deputy President Jacob Zuma stated that,: ‘virginity testing is a viable solution to curbing the spread of HIV/AIDS and teenage pregnancy7,’ and that, ‘girls knew that their virginity was their family’s treasure8.’ Those who are opposed to the practice argue that it is a violation of several rights, most significantly the rights guaranteed in Section 28 of the Constitution.
This chapter aims to analyse the nature and content of virginity testing and its impact on children, as well as the consequences of non-compliance with Section 12 of the Children’s Act (the Act).
WHAT IS VIRGINITY TESTING?
Virginity testing is designed to affirm the virginal status of a girl or woman by determining whether her hymen is still intact9. The participants are between seven and 26 years old10. In some instances the participants are graded with an A, B or C grade. An ‘A’ grade indicates that the participant has not had any intercourse and she is further marked with a white dot on her forehead as an indication that she has passed. The ‘B’ grade indicates that the participant may have had intercourse once or twice or may have been sexually abused. A ‘C’ grade means that the participant has failed. She is marked with a red dot11. Those who fail the test are precluded from participating in festivals and face social isolation, honour killings, abuse, financial penalties, family shame and poor marriage prospects12.
During the early parts of the twentieth century, virginity testing fell into disuse, due largely to the erosion of family structures through migrant labour, forced removals and Western influence. However, since the late 1980s, the practice has re-emerged, especially in KwaZulu-Natal. The practice in earlier times was usually private, as it was conducted by mothers or senior kinswomen within the family. Today, however, it has become a major public ritual in KwaZulu-Natal, and includes two festivals, namely Nomkhubulwane and umKhose womhlanga.13
FOCUS ON CHILDREN
‘There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.’ – Kofi Annan
In the Teddy Bear Clinic case14, the Constitutional Court stated that children are precious members of our society and any law that affects them must have due regard to their vulnerability and their need for guidance. In the same case, the Court recognised that a child is a person under the age of eighteen years. This is in line with Section 28 of the Constitution, as well as international law recommendations.15 The Constitution goes further and provides that a child’s best interests are of paramount importance in every matter concerning the child.16 Given the steps taken by the Constitution to uphold children’s rights, it has become imperative that legislation dealing with children protects their interests, as often they cannot speak for themselves.
To date, the question regarding the legality of virginity testing has not been brought before the Court. However, the Act17 has regulated six cultural practices prominent in South Africa, including male circumcision, female genital mutilation and virginity testing.
Most significantly, Section 12 provides:
- Virginity testing of children under the age of sixteen is prohibited.
- Virginity testing of children older than sixteen may only be performed-
a) if the child has given consent to the testing in the prescribed manner;
b) after proper counselling of the child; and
c) in the manner prescribed.
- The results of a virginity test may not be disclosed without the consent of the child.
- The body of a child who has undergone virginity testing may not be marked.
The Act standardises the consent provision by providing that the child and the person conducting the test must complete a prescribed form. In addition, the form should be accompanied by the child’s proof of age. The section concludes that a Commissioner of Oaths must commission the form.18
Bennett submits that the set requirements attempt to enforce basic health and human rights standards that are openly ignored by traditional leaders and those responsible for the inspection procedure. He adds that, should the Sexual Offences Act19 be enforced, the attitude of those conducting the tests may change due to the risk of them facing rape charges in light of the Act. The Criminal Law (Sexual Offences) Amendment Act defines rape as (‘A’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of (‘B’). In addition, the definition provided in Section 3 of the Criminal Law Amendment Act could be interpreted to include virginity testing as rape in light of the above definition. The tester would be guilty of rape as the practice includes ‘penetration’.
In addition, a child under twelve years of age is presumed to be incapable of giving consent and, if subjected to virginity testing, this would be synonymous with penetration without consent.20
The effect of the protections afforded by the Children’s Act cannot be adequately assessed. Both Bennett and George21 conclude that this is due to the non-compliance by the communities. George states that:
‘… legislative efforts to end harmful practices are seldom effective because the competing norms of a community and bonds of membership in a given “social-field” are often stronger than any law external to the community. It follows that the effective implementation of any human rights norm will depend less on lawmakers and more on the extent to which a community’s leadership chooses to embrace a particular right.’
Without the participation and compliance by communities and the State, the protective measures put in place by the Act are futile.
CUSTOMS, CULTURE AND CUSTOMARY LAW
The Constitutional Court in several judgments has given recognition to customary law and has emphasised that children have the right to freely participate in their culture. Those who argue in favour of the practice of virginity testing say that an outright abolition of the practice would be a violation of the child’s right to participate in cultural practices, as protected in sections 30 and 31 of the Constitution. Further, they state that children’s rights are arbitrarily limited and that the limitation is tantamount to discrimination.22
In addition, the Constitution has recognised customary law as a source of law, the only qualifier being that the custom must be in line with the values and purport of the Constitution and any relevant statutes. Due to the recognition of customary law and cultural practices, those in favour would argue that virginity testing has to be recognised as a traditional practice. The practice has been recognised and regulated by the Children’s Act.
1. Limitations and qualifiers
The Constitutional Court in the Pillay case23 had to determine whether the refusal to permit a pupil to wear a nose stud at school was an act of unfair discrimination and whether her religious rights were justifiably limited.
The Court used Section 14 of the Equality Act24 to determine the unfairness in terms of Section 9 of the Constitution. Section 14 provides:
(1) It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons.
(2) In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account:
(a) The context;
(b) the factors referred to in subsection (3); and
(c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria intrinsic to the activity concerned.
(3) The factors referred to in subsection (2)(b) include the following:
(a) Whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
(d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;
(f) whether the discrimination has a legitimate purpose;
(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to-
(i) address the disadvantage which arises from or is related to one or more of the prohibited grounds; or
(ii) accommodate diversity.
In the context of accommodating religious beliefs in society, a unanimous Court in Christian Education25identified the underlying motivation of the concept as follows:
‘The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.’
When one reads the provisions collectively, it is apparent that there is an obligation on the State to allow people to openly participate in their religious and cultural practices. The Court in Pillay stated that this, ‘ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms’. On the reasoning of Pillay, the participants in the practice should be allowed to participate in the practice freely and openly, as it is their customary practice.
However, Section 36 and Section 211(3) of the Constitution provide the qualifiers. In the Bhe case26 the Court stated:
‘It is important to appreciate the distinction between the legal framework based on section 23 of the Act and the place occupied by customary law in our constitutional system. Quite clearly the Constitution itself envisages a place for customary law in our legal system. Certain provisions of the Constitution put it beyond doubt that our basic law specifically requires that customary law should be accommodated, not merely tolerated, as part of South African law, provided the particular rules or provisions are not in conflict with the Constitution. Sections 30 and 31of the Constitution entrench respect for cultural diversity. Further, section 39(2) specifically requires a Court interpreting customary law to promote the spirit, purport and objects of the Bill of Rights. In similar vein, section 39(3) states that the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by customary law as long as they are consistent with the Bill of Rights. Finally, section 211 protects those institutions that are unique to customary law. It follows from this that customary law must be interpreted by the courts, as first and foremost answering to the contents of the Constitution. It is protected by and subject to the Constitution in its own right.
It is for this reason that an approach that condemns rules or provisions of customary law merely on the basis that they are different to those of the common law or legislation, such as the Intestate Succession Act, would be incorrect. At the level of constitutional validity, the question in this case is not whether a rule or provision of customary law offers similar remedies to the Intestate Succession Act. The issue is whether such rules or provisions are consistent with the Constitution.’
Most significantly, the Court stated that:
‘It should however not be inferred from the above that customary law can never change and that it cannot be amended or adjusted by legislation. In the first place, customary law is subject to the Constitution. Adjustments and development to bring its provisions in line with the Constitution or to accord with the “spirit, purport and objects of the Bill of Rights” are mandated. Secondly, the legislative authority of the Republic vests in Parliament. Thirdly, the Constitution envisages a role for national legislation in the operation, implementation and/or changes effected to customary law.’
Both sections 30 and 31 provide that the customary rights cannot be exercised in a manner inconsistent with the Bill of Rights. Therefore, although the participants can exercise their traditional practice this cannot be in contravention of the provisions protecting children and, by extension, the Children’s Act.
In compliance with its obligation to report to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)27 committee, the Department of Women, Children and People with Disabilities (herein the Department) compiled a draft report28 on the State’s implementation of CEDAW recommendations of 2011.
During the review of South Africa’s compliance with CEDAW, the recommendation from the CEDAW Committee pertaining to virginity testing in paragraph 22 states:
‘The committee expresses its serious concern about a provision in the Children’s Act of 2005 according to which virginity testing for girls above 16 years old is allowed if the girl has given her consent. The Committee is further concerned that the practice of virginity testing of girls as young as 3 years old is increasing in the State party without respecting girls physical and mental integrity and exposing them to increased risks of sexual abuse.’
The State was advised to amend the Act in as far as it allows virginity testing for girls irrespective of their age. The State was encouraged to design and implement effective education campaigns to combat traditional and family pressures in favour of the practice.
In its response, the State indicated that the traditional practices were protected by sections 30 and 31 of the Constitution. They also submitted that Section 9(3) and (4) of the Constitution prohibits unfair discrimination both directly and indirectly. The State went further and included an extract from the judgment in Prince v President of the Law Society of the Cape of Good Hope29in support of its argument30. The Court stated that:
‘Our society is diverse. It is comprised of men and women of different cultural, social, religious and linguistic backgrounds. Our Constitution recognises this diversity. This is apparent in the recognition of the different languages; the prohibition of discrimination on the grounds of, amongst other things, religion, ethnic and social origin and the recognition of freedom of religion and worship. The protection of diversity is the hallmark of a free and open society.’
The State submitted that it was important to protect cultural practices because they were not afforded any protection during colonial rule. The State added that cultural practices need to be interrogated in a constructive manner to the extent to which they conform to the Constitution. The State quoted Section 12 of the Children’s Act, which prohibits social, cultural and religious practices which are detrimental to a child’s wellbeing. The age requirements in section 12(4) and (5) were excluded.
The Legal Resources Centre made submissions to the Department. It was averred that the Department did not address the Committee’s concern regarding the potential difficulty that a girl might experience in addressing her elders on the practice. The Department was further questioned on the steps it had taken to ensure that young girls could exercise their choice in undergoing testing. In addition, it was submitted that, should the girl not agree to submit to the test, she would suffer prejudice in her community.
The Department was cautioned on its argument in favour of cultural and traditional practices over the rights to dignity, bodily integrity and equality of a minor girl child.
The LRC emphasised that, should a challenge be brought against the provisions in the Act, quoted above, the provisions would be struck off in as far as they contradict the principles in Section 28 of the Constitution.
Those who advocate for the practice promote a return to African tradition and a rejection of ‘Western’ or ‘foreign’ forms of knowledge. They are confident that virginity testing may provide a ‘culturally appropriate’ solution to the HIV/AIDS epidemic, reduce teenage pregnancy, and detect incest and sexual abuse.31
Though the motives of the advocates of the practice of virginity testing may be good, the Children’s Act has solidified the procedure that needs to be followed for the customary practice to be in line with the values enshrined in the Bill of Rights. An absolute disregard of the provisions, as stated by Bennett, should result in criminal conviction under the Sexual Offence Amendment Act and the Children’s Act. Should the provisions be challenged in the future, it is submitted that they would most likely be struck off. However, for now, compliance with the requirements is imperative and communities that fail to comply must be educated on the consequences of their omissions.
The State is also encouraged to take initiative and prosecute those who are not complying with the provisions.
30. Language and culture
Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.
31. Cultural, religious and linguistic communities
Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community
a. to enjoy their culture, practise their religion and use their language; and
b. to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
- 211(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.
- Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03)  ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003).
- The Constitution of the Republic of South Africa (1996).
- Note 4 at para 51.
- Note 3, Section 211(3).
- ‘Zuma takes a stand on virginity testing’ Mail & Guardian 23 September 2004.
- ‘SA leader urges virginity tests’ BBC news 23 September 2004, available at http://news.bbc.co.uk/2/hi/africa/3683210.stm, accessed on 16 November 2015.
- Taylor & Francis Group ‘Virginity testing in South Africa: should it be banned?’, available at http://newsroom.taylorandfrancisgroup.com/news/press-release/virginity-testing-in-south-africa-should-it-be-banned#.VkmmLNIrIdU, accessed on 16 November 2015.
- TW Bennett, C Mills and G Munnick ‘Virginity testing: A crime, a delict or a genuine cultural tradition?’ (2010) TSAR 254.
- Ibid page 255.
- Ibid Note 9.
- Ibid Note 10 at page 254.
- Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13)  ZACC 35; 2013 (12) BCLR 1429 (CC); 2014 (2) SA 168 (CC); 2014 (1) SACR 327 (CC) (3 October 2013).
- UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577.
- Note 3, Section 28(2).
- The Children’s Act, 2005, Act No. 38 of 2005.
- A child who is older than sixteen years of age and has a disability related to brain damage which renders the said child incapable of making a decision regarding virginity testing or a child with multiple disabilities who is not able to make such a decision, cannot be subjected to a virginity test.
- Criminal Law (Sexual Offences And Related Matters) Amendment Act 32 of 2007.
- Note 19, Section 57.
- Erika R George ‘Virginity testing and South Africa’s HIV/AIDS Crisis: Beyond Rights, Universalism and Cultural Relativism Toward Health capabilities’ (2008) California Law Review at 1464.
- Children’s Institute ‘Virginity Testing and Children’s Bill’ Discussion Paper 11 October 2005.
- MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06)  ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
- Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
- Christian Education South Africa v Minister of Education (CCT4/00)  ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 (18 August 2000).
- Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03)  ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004).
- United Nations Convention on the Elimination of All Forms of Discrimination Against Women.
- Department of Women, Children and People with Disabilities ‘Notice of Publication of the United Nations Convention on the Elimination of Discrimination Against Women (CEDAW) Report for Public Comment’, Government Gazette No. 761 (28 August 2015).
- Prince v President of the Law Society of the Cape of Good Hope (CCT36/00)  ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002).
- Prince v President of the Law Society of the Cape of Good Hope (CCT36/00)  ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 para 49
- Erika R George ‘Virginity testing and South Africa’s HIV/AIDS Crisis: Beyond Rights, Universalism and Cultural Relativism Toward Health capabilities’ (2008) California Law Review at 1457.