33
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.
[65]
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 marriage11.
[66]
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
11
The preamble records: “To make provision for the recognition of customary marriages; to specify the
requirements for a valid customary marriage; to regulate the registration of customary marriages; to
provide for the equal status and capacity of spouses in customary marriages; to regulate the proprietary
consequences of customary marriages and the capacity of spouses of such marriages; to regulate the
dissolution of customary marriages; to provide for the making of regulations; to repeal certain provisions
of certain laws; and to provide for matters connected therewith.”
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