In Pursuit of Equality in South Africa

The Practice of Ukuthwala in Jezile v the State

MANDIVAVARIRA MUDARIKWA

 

FACTS OF JEZILE V THE STATE1

Between December 2009 and January 2010, Jezile, who was 28 years old at the time, travelled to his rural home village in the Eastern Cape with the intention of finding a girl or young woman to marry according to his custom.2 From the evidence presented in court, his requirements for the girl or young woman were that she should be younger than eighteen years old because most girls over that age would likely have children. Jezile also wanted a virgin, ideally sixteen years old.3 It was during this time that Jezile noticed the complainant, who was fourteen years old, and deemed her suitable to be his wife. She lived with her grandmother and had just enrolled in Grade 7.4

Jezile and the complainant had neither spoken nor been introduced to each other. Jezile noticed the complainant when she was sent by her uncle to fetch a cigarette from a house where he was visiting at the time.5 On the same day that Jezile noticed the fourteen-year-old complainant, he instructed his family to start lobolo negotiations with her family. From the evidence before the court, these negotiations were concluded on the same day.6

The next morning, the complainant got ready for school, but before she could leave she was called to a meeting of male members of the two families and she was informed by a man unknown to her that she was now married to Jezile. Her resistance to the marriage was ignored by these men and her uncle instructed her to remove her uniform. Afterwards she was dragged to Jezile’s village by force7. Upon arrival she was 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’)8 and expected to participate in traditional ceremonies to become Jezile’s ‘wife’.

Unhappy with the circumstances of her ‘marriage’, the complainant ran away and hid in a nearby forest. Once her mother, who worked in a nearby town, heard of her daughter’s ‘marriage’, she instructed the complainant to hide at another house. She was, however, found and immediately returned to Jezile’s home by the male members of her family9. Immediately after this, with the permission of male members of her family, the complainant was taken to Cape Town by Jezile. In Cape Town, both of them stayed with Jezile’s brother and his wife, where the complainant was expected to stay at home to attend to the chores while everyone else went to work.10

Sexual intercourse between Jezile and the complainant took place on various occasions, with the complainant maintaining that it happened seven times, including one incident where the complainant was injured. Jezile denied this11. The complainant managed to flee from the home where she stayed with Jezile in Cape Town and immediately reported him to the police. The police took her to a doctor and Jezile was criminally charged.12

On 7 November 2013, Jezile was convicted by the Wynberg Regional Court of a single count of trafficking of the complainant for sexual purposes in terms of section 71(1) of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 200713 (the Sexual Offences Act); three counts of rape of the complainant; a single count of assault GBH (grievous bodily harm); and a single count of common assault. Following his conviction, Jezile appealed to the Western Cape High Court, arguing 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.’14

THE LEGAL RESOURCES CENTRE’S INVOLVEMENT IN THE CASE

The Legal Resources Centre (LRC) represented four amici curiae15 because of the facts of the case and Jezile’s defence, but also because the status of customary law and the practice of ukuthwala had to be pertinently addressed in the proceeding. The LRC made submissions to the court on the following issues:

  • the practice of ukuthwala through the use of expert evidence given by Professor Nhlapo;
  • the impact of ukuthwala on the rights of rural women and children as a vulnerable class of persons, which was submitted though affidavits from the LRC’s clients and their women constituents’ experiences of ukuthwala;
  • the constitutionality of the practice of ukuthwala, including the possibility for developing the customary law in a manner that is consonant with the Constitution and, if developed in line with the Constitution, the extent to which ukuthwala can be a valid legal defence to the charges that Jezile faced;
  • the validity of the customary marriage allegedly concluded between Jezile and the complainant; and
  • the international and regional obligations of the state to protect women and children from harmful customary practices.

In its participation in this matter, the LRC, through the submission of evidence from women who had been thwalad, enabled the Court to decide the merits of the case within the context and ambit of women’s and children’s rights. As the defence advanced by Jezile related to a customary practice, the LRC also ensured that the Court adjudicating the Jezile matter was fully cognisant of the manner in which the content of customary law should be determined and adjudicated in South Africa as set in the Shilubana case16. Lastly, perhaps more importantly, the LRC assisted the Court to understand the key elements and nature of the practice of ukuthwala in order to enable the Court to pronounce on Jezile’s defence.

FINDINGS OF THE COURT

The Court emphasised the constitutional context of the application and status of customary law as set out in section 211(3)17 of the Constitution of the Republic of South Africa. The Court further emphasised that a child is a person below the age of eighteen18, every child has the right to be protected from maltreatment, neglect, abuse or degradation19 and that a child’s best interests are of paramount importance in all matters concerning the child20. The Court also made reference to applicable sections of the Children’s Act21 and other relevant legislation22 and international obligations.23

The Court found that ukuthwala is an irregular method24 for commencing negotiations between the families of the intended bride and bridegroom directed at the conclusion of a customary marriage. It is not a marriage in itself.25 The Court heard that the ‘normal’ marriage started off with a proposal, which, if accepted, commenced lobolo negotiations that ultimately led to marriage, including traditional ceremonies.26

The Court was also informed of and accepted that some of the essential elements of the traditional conception of ukuthwala are as follows:

  • both parties must be of marriageable age (which was considered to be child-bearing age in customary law);
  • both parties must consent to initiate their nuptials through the use of the practice of ukuthwala (it was noted that there are instances where a woman is 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)27;
  • as part of the thwala process, the intending bride and groom would arrange a mock abduction of the bride at dusk and she would put up a show of resistance in order to preserve her modesty, but she would be aware of and have agreed to the abduction beforehand;
  • once abducted, the intending bride would be placed in the safe custody of the women in the man’s homestead in order to preserve her reputation. It was at this point that the intending groom’s father would be informed of the presence of a woman in his house, who his son intended to marry;
  • sexual intercourse was strictly prohibited during this time; and
  • the intending groom’s family then sent an invitation to the woman’s village, either on the day of the mock abduction or the following morning, to inform her family that she was with his family, which was a sign that they intended to commence negotiations for marriage28.

The Court also accepted that, as ukuthwala is a portal to a customary marriage, the validity is determined by the requirements set out in the Recognition of Customary Marriages Act (RCMA)29. The RCMA mandates that all parties intending to marry in terms of customary law must be eighteen years or older, must both consent to the marriage and must celebrate the marriage30 according to custom.31

The Court also noted the two contrasting ways in which ukuthwala has been practiced. On the one hand, there is a traditional conception of ukuthwala that requires consent of both parties wishing to enter into a marriage, and on the other hand, there is what was referred to as an aberration of the traditional concept.32 The Court heard and accepted that, in this case, Jezile had misapplied the customary practice of ukuthwala given the age of the complainant, her lack of consent to the ‘marriage’, the abduction process and, more importantly, the fact that lobolo was negotiated and paid before the ukuthwala occurred.33

The Court heard and accepted that the abhorrent practice subjected women to violence and rape, and coerced them into forced marriages through violence; the Jezile case was just one example of the widespread nature of the misapplication of this custom. The Court found that Jezile’s defence relied on the abhorrent version of ukuthwala, mistakenly supported by the belief that ukuthwala was a marriage.34 The Court also rejected Jezile’s claim that a woman would not expressly consent to abduction by a man but would simply pretend to resist the abduction, citing the use of the practice by two parties who had agreed to marry themselves.35 Rather, the Court found that Jezile 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.36

LESSONS FROM JEZILE VS THE STATE

  • The marriage laws in South Africa, in both the RCMA and Marriages Act37, that allow children under the age of eighteen to be married with their parents’ consent can be argued as indirectly fuelling the rape, abduction, assault, trafficking and coercion of women into marriages in the name of custom. It is hoped that the responsible government departments will take steps to urgently amend these laws to not only ensure that children are not married off by their parents, but also to ensure compliance with a number of international and regional laws binding on South Africa.
  • Given the evidence placed before Court specifically mentioning that the version of ukuthwala relied upon by Jezile and other similar abhorrent versions are practiced widely in South Africa, the law reform process being undertaken by the South African Law Reform Commission must be finalised as a matter of urgency. This will ensure that there is immediate and effective protection of women and children from harmful customary practices. The fragmented approach to regulating ukuthwala fails to appropriately capture the relationship between this practice and forced- and child marriages. It is imperative for this legislation to ensure that forced-, early- and child marriages are banned in South Africa, with accompanying criminal sanctions for those failing to comply with the legislation.
  • The South African Police Services (SAPS) must be enlightened and empowered to deal with reported cases of customary practices. It is daunting to think of what would have happened to the complainant in the Jezile matter had the police refused to take her statement and take action.
    • It has been reported that, in some instances, the SAPS had not been willing to deal with such cases, claiming that customary issues  were outside their jurisdiction.
    • It is of paramount importance that the SAPS develop a standing operating procedure and/or a national instruction on how to deal with ukuthwala and other harmful customary practices. This will inform the nation that the police are co-ordinated and, hopefully, effective in handling any case of ukuthwala.
    • An ukthwala and other harmful customary practices task force has been created in Bergville District. This may be necessary for all police stations in areas where women and children are abducted in the name of ukuthwala. There are various organisations and institutions (like Chapter 9 Institutions) that can inform the SAPS about the key areas where this should be done.
  • Immediate steps must be taken to widely and nationally raise awareness about what the right to custom really entails for those who live in terms of custom. This is believed to be useful in ensuring that all who live in terms of custom not only understand their own rights, but also the rights of others in their communities, especially women and children. This would also have to focus on ukuthwala, as it has been widely reported as a harmful customary practice. South Africa has an obligation to eradicate harmful customary practices and protect women, which begins with an understanding of what it means for a person to have a right to live in terms of custom.
  • The RCMA was intended to regulate customary marriages, but it is doubtful that it is widely understood and/or applied in customary marriages. It is fruitless for legislation to be enacted without informing the communities that directly benefit from the protection envisaged by the legislation.

CONCLUSION

As the LRC, we hope that immediate steps are taken to address the current violent practice of ukuthwala that affects many women and children living in terms of custom. The Jezile case was just one example of how the practice of ukuthwala impacted on the complainant’s life and wellbeing. For many girls who are thwalad, they do not have the opportunity to be separated from their abductors because their families will not welcome them back and they are unable to support themselves on their own. They have to live the rest of their lives with the same man who brutally and violently forced them into marriage, without any hope of being free from violence. Surely, as a country, we have to do better for our women and children?


 

  1. (WCC) (unreported case no 127/2014, 23-3-2015).
  2. Ibid para 5.
  3. Ibid para 5.
  4. Ibid para 6.
  5. Ibid para 6.
  6. Ibid para 7.
  7.  Ibid para 7 and 8.
  8. Ibid para 9.
  9.  Ibid para 10.
  10. Ibid para 10.
  11. Ibid para 11.
  12. Ibid para 11.
  13. At the time when this incident of trafficking occurred, the Prevention and Combating of Trafficking in Persons Act 7 of 2013 was not yet in force so Jezile was charged in terms of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 2007, which only came into effect on 9 August 2015 – see https://www.greengazette.co.za/notices/prevention-and-combating-of-trafficking-in-persons-act-7-2013-commencement_20150807-GGR-39078-00032-01.pdf, accessed 15 November 2015.
  14. Ibid para 52.
  15. The Rural Women’s Movement, Masimanyane Women’s Support Centre (Eastern Cape), the Commission for Gender Equality and the CRL Commission (Commission for Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities).
  16. Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC).
  17. Section 211(3) states 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.’
  18. Section 28(3) of the Constitution of the Republic of South Africa.
  19. 28(1)(d) of the Constitution of the Republic of South Africa.
  20. Section 28(2) of the Constitution of the Republic of South Africa.
  21. 28 of 2005. Jezile supra note 1 para 62. The Court also made reference to the Recognition of Customary Marriages Act.
  22. Ibid from para 63 to where Court made reference to the Sexual Offences Act, Recognition of Customary Marriages Act 120 of 1998, Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
  23. UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 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’), The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Convention on the Rights of the Child, The African Charter on the Rights and Welfare of the Child (ACRWC).
  24. Examples of cases where an irregular method for marriage followed were set out by Professor Nhalpo in Jezile supra note 1 para 72.
  25. Jezile supra note 1 para 72 where the Court made reference to the expert evidence of Professor Nhlapo, which was submitted by the LRC.
  26. Ibid para 73.
  27. Ibid para 72.
  28. Ibid.
  29. 120 of 1998.
  30. The Court emphasised the finding of the Constitutional Court in para 74, 75 and 83 of Mayelane v Ngwenyama and Another (Women’s Legal Centre Trust and Others as amici curiae) 2013 (8) BCLR 918 (CC), which found that consent of the parties is a requirement for validity of marriage.
  31. Section 3 of the RCMA.
  32. Ibid para 75–78.
  33. Ibid para 75.
  34. Ibid para 85.
  35. Ibid para 87.
  36. Ibid para 92.
  37. 25 of 1961.