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Republic of South Africa REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) High Court Case No: A 127/2014 In the matter between: NVUMELENI JEZILE Appellant and THE STATE Respondent NATIONAL HOUSE OF TRADITIONAL LEADERS 1st Amicus Curiae WOMEN’S LEGAL CENTRE TRUST 2nd Amicus Curiae CENTRE FOR CHILD LAW 3rd Amicus Curiae COMMISSION FOR GENDER EQUALITY 4th Amicus Curiae RURAL WOMEN’S MOVEMENT 5th Amicus Curiae MASIMANYANE WOMEN’S SUPPORT CENTRE 6th Amicus Curiae COMMISSION FOR THE PROMOTION AND PROTECTION OF RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES 7th Amicus Curiae

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NVUMELENI JEZILE v THE STATE, 2015

Cases

Country

Latitude: -31.005484474142992

Longitude: 23.460146846172638

Country (linked Cases): South Africa

Court location: South Africa: Western Cape

Court: South Africa: High Court, South Africa

Date of judgement: Mar 23, 2015

Keywords

Child abuse
Child marriage / forced marriage
Consent
Cruel, inhuman or degrading treatment
Defilement (Rape of children)
Human Trafficking
Marriage – equal rights
Marriage based on free consent of the parties
Physical assault
Rape
Right to dignity
Sexual assault
Sexual offences
Trafficking for sexual exploitation

Gender of victim

Female: Girl (under 18)

Gender of accused/perpetrator

Male: Man (18+)

Language: English

Summary: 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

Primary Documents

Jezile v The State and Others - ukuthwala not a defence to trafficking.pdf
English
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