S v Jezile 2015 (2) SACR 452 (WCC).

Introduction.

The need for cultural preservation and the right to free cultural practice is often in conflict with imperial legal positions globally. S v Jezile serves a definitive anchor in this discourse. The case is of significant importance in South African jurisprudence, involving a clash between South African Criminal Law and Indigenous law. The case involves a Mr. Nvumeleni Jezile appealing the convictions on the count of human trafficking and three counts of rape in the regional magistrate’s court (the trial court), against the State as the prosecuting authority, and seven amici curiae for the State. The case sets a standard on whether or not cultural practice that infringes on constitutionally protected rights and in doing so, constitutes a criminal offence, can serve as a defence or ground for justification.

Facts of the case.

The facts of the decision appear from the judgment delivered by Yekiso J, Saldanha J and Cloete J in the High Court Western Cape Division, Cape Town. The judgment was delivered on March 23, 2015. The appellant, who was 28 years of age at the time, decided to leave his home in search for a wife. In doing this, he left his residence in Cape Town and headed to the Eastern Cape to fulfil this search by practicing his traditional customs. He stated that his requirements for a wife included a girl who was younger than 18, the best-case scenario being a 16-year-old; and a virgin. He noticed the complainant who was 14 at the time and decided she was a fit prospective wife. Accordingly, he directed his family to begin marriage proceedings and paid lobolo (bridal price) to her family.

The complainant was integrated to the appellant’s home soon after the conclusion of bridal price negotiations. She ran away from her new marital home soon after but was promptly found and taken back. The appellant then decided to move back to Cape Town with her against her will and lived in the house of his brother. It was here where according to the complainant’s testimony; seven rape instances occurred. The appellant opposed this, stating that only instances of sexual intercourse occurred: once in the Eastern Cape and once in Cape Town.

Nonetheless, the State charged him with only three counts of rape, one count of human trafficking, one count of assault with intention to cause grievous bodily harm, and one count of assault. The trial court convicted him on all the mentioned counts. It is important to note that in relation to the assaults, on the complainant’s, the appellant had attacked her with a mop handle and a belt which took place because the appellant wanted to subdue her so that he could rape her.

Regarding sentencing, he was sentenced to 10 years imprisonment for the human trafficking count, 20 years imprisonment for the rape counts, 6 months imprisonment for the assault to commit grievous bodily harm, and 30 days imprisonment for common assault. The sentences were to run in the following manner: 8 years of the 10 for human trafficking and the two assault sentences were to run concurrently with the 20-year imprisonment for the rape counts.

In arriving to these convictions, the trial court held that being mindful to a single, youthful witness, the court ought to find her testimony to be truthful. The court held further that the appellant’s version of events leading up to the departure to Cape Town does not discharge the evidentiary burden bestowed upon him by way of subjective facts. The court found, importantly so, that at issue was not the practice of the custom of ukuthwala (a custom that permits the consensual abduction of a prospective bride to trigger negotiations of a customary marriage). Nor was the issue comprising of the position of forced marriages in our constitutional democracy. At issue was whether or not the State has proven, beyond reasonable doubt, that the accused has committed the acts he is charged with and if so, whether he acted with the knowledge of wrongfulness and the required intention. Accordingly, the State fulfilled this enquiry, hence the convictions. On appeal, the appellant contested all of the convictions. This is what gives rise to the present case.

Legal issues

At issue in the Western Cape High Court was firstly, can it be said that trial court erred in its ruling concerning the irrelevance of customary law? The second issue pertained to whether or not the custom of ukuthwala could secure protection in our law. The last issue was whether or not the convictions of the assaults constituted a duplication of charges and thus infringed on the constitutional right to not be convicted of the same offence more than once.

Arguments made by counsel.

For the appellant:

The appellant raised the defence that he was in a customary marriage with the complainant at the time the incidents occurred. The customary nature of the marriage therefore warranted the trial court to adopt an approach that proceeded from the premise that the merits should have been determined within the context of ukuthwala or customary marriage. In this regard, it was submitted with regards to the convictions apart from the assaults, the trial court had misdirected itself.

A further contention was that ‘consent’ within the practice of ukuthwala was a concept that had to be determined with the rightful place which customary law had in our constitutional dispensation. To this end, it was submitted that an integral part of the practice of ukuthwala was that the bride act not only coerced, but to also consistently pretend to object.  For the assault charges, it was argued that the trial court had infringed on his right to not be convicted of the same offence twice.

For the respondent.

The amici described the practice of ukuthwala as ‘a most severe and impermissible violation of women and children’s most basic rights to dignity, equality, life, freedom, security of person and freedom from slavery.’ Some of the amici remarked that ukuthwala, both in its traditional and aberrant sense, ‘feed on the patriarchal nature of customary law.’ The arguments for the respondent in respect of some of the issues outlined above were adequately established by the amici, while the others were decided on the conclusions of the court a quo. The amici established since the human trafficking and sexual assaults took place after the “customary marriage,” this means that they were committed after the time which ukuthwala (in the traditional sense) must have occurred in the ordinary customary marriage. Therefore, the appellant could only be relying on an “aberrant” or “distorted” form of ukuthwala, which does not constitute a custom.

Court’s reasoning and analysis.

Whether the custom of ukuthwala could secure protection in our law.

The court was informed that the so-called aberrant form of ukuthwala entailed a stance of which women or girls are abducted, and usually sexually assaulted in order to coerce them into submission. The so-called aberrant form of ukuthwala often occurs with consent of the girl’s or woman’s parents who are financially remunerated in order to abduct the woman. The court held that with regard to the submissions by the amici and evidence from expert witnesses, it was clear that the human trafficking and sexual assaults had taken place after the customary marriage and therefore, after when a traditional ukuthwala must have occurred. It was then simple to conclude that the appellant was left to rely on a distorted form of ukuthwala. To do this, the living form of customary law would be the only way to justify his conduct. The court found that in this regard, it could not be approved in our law that the distorted form of ukuthwala could secure protection in our law.

It is submitted that this position is legally sound. This submission rests on two pillars: the mandatory nature of uniform observation of a custom, and the relationship of a ground for justification and the conduct it seeks to justify.

For the first, the court considered Mayelane v Ngwenyama, where it was said that customary law must be read in its own light, and not as a prospective of common law.[1] Furthermore, Shilubana v Nwamitwa,[2] the court made a crucial distinction between customs and customary law to reform the application of the criteria of a custom set in Van Breda v Jacobs.[3] The court held that in overriding the criterion set in Van Breda, unlike customary law, customs were not an original source of law capable of independent development.

When viewing customary law in its own light as required in Ngwenyama, and accepting its ability to develop as found in Shilubana, one can see that there is a need to rely on a custom that is capable of developing, but still uniformly observed in the relevant community. The conduct here cannot be said to be uniformly observed. In fact, the court found that the appellant had not asserted an authoritative rule that justified his conduct, nor did he assert that he acted in belief that he had entered into a customary marriage that permitted sexual coercion.

For the second pillar, it is trite in our law that a ground of justification should be sufficiently linked to the conduct it seeks to justify. The conduct in the present case was not sufficiently linked to the justification, as the practice sought to justify the conduct should have been observed before the unlawful conduct was committed.

Consequently, the court found that it cannot be approved that the distorted form of ukuthwala could secure protection in our law.

Whether the trial court had erred in its credibility, findings, reasoning and conclusions.

The court found no error in the credibility, findings, reasoning and conclusions of the trial court. This was due to the fact that the appellant had not asserted any authority that justifies his conduct. It is submitted that this finding is correct. It would be unjust to order otherwise in the present circumstances.

 Whether or not the assaults constituted a duplication.

The court found that the assaults amounted to a duplication of charges. The court relied on the case of S v BM , where it was said that it is clear that charging Mr BM with two different counts stemming from what was evidently a single incident constituted an improper duplication (splitting) of charges… it has been a practice in our criminal courts that when an accused has perpetrated only one offense in essence, it should not be divided and charged as multiple offenses in the same trial.[4]

It is submitted that this finding is correct. The separation of the assault with a belt and an assault with a mop head in the same incident for the same outcome would be an improper duplication of charges.

Judgment.

The appeal was dismissed in part. Insofar as the issues of whether the defence could secure protection and whether the lower court had erred in its findings, the court ruled in the negative and dismissed the appeal and confirmed the convictions of rape and human trafficking. To the extent of a duplication of charges, the court ruled in the positive and set the order aside.

Critical analysis of the impact of the decision.

On the decision of dismissing ukuthwala as a defence.

From a constitutional standpoint, the decision must be praised. The custom is of a nature that is intolerable in our law. It is important however, to make note of the different forms of ukuthwala. Mwambene and Sloth Nielson indicate that there are generally three forms of ukuthwala: the first form is where the female is aware of her abduction being planned. There is consent between the parties and ‘force’ is only used as a veil for the female’s consent. The second form involves the situation where the respective families would consent in respect of the planned marriage, but the girl is unaware of the agreement usually due to the fact that she would possibly oppose her parents’ choice. The third form of ukuthwala occurs completely against the will of the female. She is removed by force and taken to the young man’s family home whereafter negotiations for a proposed marriage are commenced with.[5]

The third form is what was before the court. The judgment raises questions of policy: what position does the custom have in a constitutional dispensation? To this, a cultural relativist would submit that culture has the freedom to practice what is native and relevant to that specific society, without the imperialist imposition from another culture that holds a different set of norms[6] This position cannot be in our law. The constitutional injunction that “(the constitution is) the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled,” in effect outlaws any conduct that is inconsistent with the Bill of Rights.[7] It is submitted that cultural preservation should be assessed solely on the basis of its usefulness, and not on the ground of preservation of cultural identity and traditions when, in fact, doing so would result in the erosion of the dignity, liberty and security of others (see: Asomah “Cultural Rights Versus Human Rights: A Critical Analysis of the Trokosi Practice in Ghana and the Role of Civil Society” 2015 AHRLJ 133).

The practical application of Section 211(3) of the Constitution in Jezile that requires delicate importance. The provision states that, “customary law is applicable only subject to the Constitution and any legislation that specifically deals with it.” The clarification of that while “living customary law is recognised,’’ and encouraged to evolve, it cannot live without scrutiny made necessary by Section 2 of our Constitution.

In effect, the judgment entails a duty of carefulness on the part of persons who observe customary law. It is, however, important to understand that the decision does not guarantee deterrence or protection. Karimakwenda points out that in certain traditional contexts, sexual violation is not always viewed as a crime in the modern-law sense, but as a sanctioned coercion.[8] What constituted a criminal offence in Jezile may not do the same for other victims. Mwambene and Kruuse propose a “bottom-up” approach to enable a more effective response to the even in cultures where criminal offences are a norm.[9] I agree. It would be grossly unrealistic to suppose that environments where ukuthwala is central to the institution of marriage, would report willingly an offence similar to the one in Jezile.

Conclusion

S v Jezile remains a landmark affirmation that “culture” is not a static monolithic structure that can be used to justify the erosion of fundamental human rights. It demands a ‘protective’ and ‘transformative’ approach to customary law, one that evolves to protect the most vulnerable members in indigenous communities. The case reflects a clear rejection of the suppression of human dignity for women under the guise of tradition. For a modern day South African jurisprudence, the case shows that no custom is so sacred that it may override the fundamental human rights of individuals.

The case is a step in the right direction. It serves a strong precedent for future cases. It is only a grave worry on the part of its efficiency that the state must consult. Questions of outlawing forced marriages come to the fore in t

Bibliography

Case law

• Mayelane v Ngwenyama 2013 (4) SA 415 (CC)
• ​S v BM 2014 (2) SACR 23 (SCA)
• ​Shilubana v Nwamitwa 2009 (2) SA 66 (CC)
• ​Van Breda v Jacobs 1921 AD 330

Legislation

Constitution of the Republic of South Africa, 1996

Secondary Sources

• Danial J, “Cultural Relativism vs Universalism: Female Genital Mutilation, Pragmatic Remedies” (2013) 2 Prandium: The Journal of Historical Studies.
• ​Karimakwenda N, “Today It Would Be Called Rape: A Historical and Contextual Examination of Forced Marriage and Violence in the Eastern Cape” (2013) 13 African Human Rights Law Journal 352.
• ​Mwambene L and Kruuse H, “The Thin Edge of the Wedge: Ukuthwala, Alienation and Consent” (2017) 33 South African Journal on Human Rights.
• ​Mwambene L and Sloth-Nielsen J, “Benign Accommodation? Ukuthwala, “Forced Marriage” and the South African Children’s Act” (2011) 11 African Human Rights Law Journal 67.

his instance, and the legislature has a call to make.

[1] 2013 4 SA 415, at para [46]

[2] 2009 (2) SA 66, at para [54]

[3] Van Breda v Jacobs 1921 AD 330

[4] 2014 (2) SACR 23 (SCA), at para [3]

[5] L Mwambene and J Sloth Nielsen “Benign accommodation? Ukhuthwala, “forced marriage” and the South African Children’s Act” 2011 Afr Human Rights L J 67

[6]Danial “Cultural Relativism vs Universalism: Female Genital Mutilation, Pragmatic Remedies” (Prandium: The Journal of Historical Studies 2.)

[7] The Constitution of the Republic of South Africa, s2

[8]  Karimakwenda “Today It Would Be Called Rape: A Historical and Contextual Examination of Forced Marriage and Violence in the Eastern Cape,” 2013 AHRLJ 352.)

[9] (see: Mwambene and Kruuse “The Thin Edge of the Wedge: Ukuthwala, Alienation and Consent,” 2017 SAJHR 3)