Authored By:Bonga Sibisi
University of Zululand
- case title & citation
Jezile v S and Others (A 127/2014) [2015] ZAWCHC 31;2015 (2) SACR 452 (WWC); 2016 (2) SA 62 (WWC); [2015] 3 All SA 201 (WCC) (23 March 2015)
- court name & bench
Court: High Court of South Africa
bench type: Western Cape Division
Judges: J Cloete, V Saldanha, N J Yekisa
- Date of judgement
23 march 2015
- Parties involved
Appellant: Nvumeleni Jezile the male individual convicted at the trial court for rape, human trafficking and assault.
Respondent: the state was the party prosecuting the case
5 Facts of the Case
The controversy of this case began when a twenty eight year old male individual travelled from cape town to the rural areas of the eastern cape with the intention of finding a young teenage girl for the purposes of marrying her. As a result of his searches, he chose a fourteen year old girl who was still in school to be his wife. The family of the male then negotiated with the family of the girl the price it was going to be to take the girl away for the purposes of marriage this process is also known as lobola negotiations, this was al done with the knowledge or consent of the girl. After the lobola negotiations concluded, the girl was subsequently subjected to a customary ceremony which constituted as a marriage under customary law in South Africa. After the marriage concluded the girl was forcibly removed from her place of residence and taken to Cape Town with the intention that she start doing the expected duties of a wife. While in cape town she was subject to assault and multiple acts of rape and was locked in the house unable to leave on her own free will. The girl was eventually able to escape and she reported this crime to the police.
The case of S v Jezile became South African landmark case and gained constitutional significance and relevance when the when it became apparent that the fundamental rights listed in the constitutional are being infringed and violated. The court challenged the constitutionality of the customary form of abduction known traditionally in African customary law as ukuthwala. The court challenged the constitutionality of the custom of ukuthwala arguing on whether it was a valid defence against the crimes of non-consensual sexual conduct and human trafficking.
6 Issues raised
Constitutionality of the custom of ukuthwala
The court also asked the question of whether the multiple infringements of the constitutions fundamental rights was valid as in terms of the constitution any and all acts and provisions inconsistent with it are to be deemed unconstitutional and invalid.
The criminality of the custom of ukuthwala
The court also challenged the constitutionality and the criminality of the custom of ukuthwala arguing on whether it was a valid defence against the crimes of non-consensual sexual conduct and human trafficking which took place throughout the republic
Scope of constitutional rights
What is covered by the constitutional scope and what is the extent of protection and limitation of the constitutional rights in the republic of South Africa.
Precedent review
Should the high court take a look at one of the earlier decisions that took place in the case of R v Sita which deal with the related topic of ukuthwala which occurred decades earlier and under a different constitution and legal framework.
7 Arguments of parties
Appellants argument
The appellant which is Jezile argued that the ceremony that took place between him and the under aged girl constituted as a legal customary marriage under the customary practice of ukuthwala which is viewed as a traditional form of marriage and is practised by a majority of people in some of the communities in the republic. The context of his argument he claimed that within the definition and concept of ukuthwala the primary requirements for the validity of the marriage was the consent of the guardians of the bride and the protest of the bride did not genuinely constitute as non-consent. He furthermore stated that his actions were in line or accordance with the tradition of ukuthwala therefore being in a valid marriage relationship with his wife all the sexual relations that took place during the substance were lawful therefore none of his actions amount to rape and human trafficking. He also stated in his argument that the assault charges he was also facing should be set aside due to the fact that it was one incident and unlike the other alleged offences it was not an act that happened multiple times and that these charges resulted to duplication of punishment.
Respondents Argument
The respondent which was the high court of south Africa rejected Jezile’s defence, the court came to the conclusion that what had occurred between the appellant and the victim was not consensual let alone legitimate, and that the acts of the appellant constituted as forced abduction and human trafficking, furthermore that he misused the custom of ukuthwala to commit these punishable crimes. The court also stated that minor child did consent to the marriage and a customary marriage is not recognised as valid without the consent of both spouses as stated in the RCMA and that forced consent through coercion and abduction does not amount to consent.
8 judgment
the court found the appellant guilty of the crimes of human trafficking and 3 counts of rape and was later convicted to a combined effective imprisonment sentence of twenty two years. When the accused tried to appeal the verdict the rape and human trafficking conviction stayed effective while the assault charge was set aside.
9 legal reasoning
The court ultimately came to the conclusion that the appellant’s defence was not valid and therefore was rejected. The court stated that the manner in which he conducted himself and his use of the ukuthwala custom for concluding a customary marriage was guilty of the crime of human trafficking and three counts of rape. During the appeal which was instituted by the appellant the court came to the conclusion and agreed that the assault charges amounted to duplication of punishment and agreed for them to be set aside.
10 Conclusion
The case of S v Jezile stands as a significant constitutional and legal milestone in South Africa’s developing jurisprudence on the interaction between customary law and constitutional rights, particularly where harmful practices are justified under the guise of culture. At its core, the case exposed the profound violation of a young girl’s rights through forced abduction, non-consensual sexual conduct, human trafficking, and coerced participation in a customary ceremony that was presented as a marriage. The facts of the matter highlighted not only the vulnerability of minors within certain socio-cultural contexts, but also the risks posed when outdated or distorted interpretations of customary practices are used to legitimize criminal conduct. The court’s ultimate conclusion—that the appellant’s reliance on ukuthwala could not serve as a valid defence—was grounded in a clear constitutional principle: no custom or tradition can supersede the fundamental rights protected by the Constitution. This judgment emphasized that customary law, while recognized as part of South Africa’s legal system, gets its validity from the Constitution and must therefore be interpreted in a manner consistent with human dignity, equality, and freedom. The forced removal, assault, and repeated rape of a minor could never align with these constitutional values, regardless of any cultural argument. The judgment further clarified that genuine customary marriage under both the RCMA and living customary law requires the free and informed consent of both spouses. The court found compelling evidence that the complainant never consented at any stage—neither to marriage, nor to relocation, nor to sexual intercourse. Her repeated attempts to escape underscored her lack of willingness and directly contradicted the appellant’s claim that her protest was “symbolic” within the cultural context. By rejecting this argument, the court protected minors from interpretations of custom that normalize gender-based violence and undermine bodily autonomy. The court gave much-needed clarification on the difference between the original, consensual form of ukuthwala and its contemporary, abusive deformation while considering questions like its illegality and constitutionality. The court continued to give much more clarification which was needed on the difference between the original, consensual form of ukuthwala and its contemporary, abusive deformation while considering questions like its illegality and constitutionality. This proved to be very crucial step towards the prevention of girls getting trafficked under the so called cultural and traditional practices, therefore throughout the entire case the court stood firm on the rule that cultural activities will not be allowed to constitute the act of crimes. The decision of the court then contributes to the growing body of jurisprudence updating customary practices. The court also showed how the constitution still remains as the highest and supreme source of law in the republic and that all acts, practices and provisions inconsistent with it must be deemed invalid and unconstitutional.
Bibliography
The Constitution of the Republic Of South Africa 1996
Children’s Act 38 Of 2005
R V Sita
Criminal Law (Sexual Offences and Related Matters) Act 2003
