This case concerns the 28 year old male defendant who is appealing his convictions on human trafficking, rape and assault of a 14 year old girl. These convictions arose out of a customary marriage between them. The custom of abducting girls for the purposes of marriage, sometimes with the permission of their family, is known as ukuthwala in South Africa.
According to the defendant, ‘Consent’ within the practice of ‘ukuthwala’ is determined in accordance with tradition and custom, which is recognized by the South African Constitution. The defendant also stated that if the state rejected his argument, the separate convictions for assault (in addition to rape and trafficking) amount to a ‘splitting of charges’ in violation of his rights under South African law.
The court refused to recognize the custom of ukuthwala as a defense to the criminal charges, but it agreed with the defendant that the charge of assault duplicated his conviction.
In conclusion the appeal against the convictions for trafficking and rape was dismissed, and the Appellants convictions on the counts of assault were set aside