THREE high court judges ruled today that a man who ‘married’, abducted and raped a 14 year old girl in the name of customary practices, should be convicted of rape and human trafficking and sent to jail.

The judges, from the high court in Cape Town, were sitting as an appeal court to consider one of the most contentious cases ever justified in the name of tradition.

The girl’s story reads like a sex-slave horror story and even the start of the court judgment captures something of the drama: Mvumeleni Jezile’s convictions, said the court, related to a “series of events over the period January to March 2010, starting in a remote rural area of the Eastern Cape and ending the (the girl) fleeing from (Jezile’s) home in Philippi near Cape Town and laying criminal charges against him.”

After his conviction and sentence to an effective 22 years, Jezile appealed, saying he had acted in accordance with tradition and customary law. The court has however accepted evidence from experts that his behaviour was an ‘aberrant’ form of traditional practice which the law should not condone.

Jezile told the court that at the end of 2009 he decided he wanted a wife, so he left his home in Phillippi and went to his home village in the Eastern Cape to search. Even before he started looking he knew what he wanted. She should be under 18, a virgin, ideally about 16 years old.

It was just her bad luck that the girl who later became the complainant in this matter, caught his attention. The girl, who has not been named by the court, was 14 years old and had just started Grade Seven. She was sent by one of her male relatives to buy a cigarette when Jezile spotted her and decided that she was what he wanted.

He then approached her family to start negotiations and matters were settled during the course of the same day.

Next morning she was called to a gathering of male relatives from her family and Jezile’s, and informed that she was about to be married. She was told to take off her school uniform and put on different clothes. When she protested, she was ignored and two of the men took her by force to the house where Jezile had first noticed her. On the way she was introduced to him for the first time, told he was to be her husband and handed over to him.

At Jezile’s house in his home village she was immediately dressed in the special clothes worn by a new wife and told to join in various ceremonies. At some stage during these ceremonies she allegedly became his wife and lobola of R8 000 was paid to the girl’s grandmother. She later gave it to the girl’s own mother who worked away from home in another village and was apparently initially unaware of the marriage.

The girl said she was unhappy and ran away a few days after the marriage, hiding in a forest and then at another house where she was found by the men of the family and returned.

Then she was told Jezile was going back to Cape Town and she was to go with him. Among the issues during the initial trial was how willing she was to go to Cape Town – or to stay and be his wife once she was there. There was also a dispute over the number of times there was sex between them, whether it was rape as she says or consensual as he claimed, and whether a serious injury to her leg that had turned septic by the time she ran away to a police station for help was caused by Jezile.

The girl told the court about how she had cried and pleaded with her relatives not to take her to Jezile’s place and to let her go back to school. They held her tight and refused to release her. When she was handed over to Jezile and his relatives they also held her tight to stop her escaping as they took her the rest of the way to his village.

After the ceremonies, when she refused to eat she was threatened with a stick. Next morning she tried to escape but was returned to Jezile after which she continued to refuse to do as he instructed.

That evening she again tried to escape, slept in a forest and hid there for a day before starting the long walk back to her home village. At her home she spotted people whom she feared would return her to Jezile so she slept in the garden outside and hid in the bushes the next day.

At this point she made contact with her mother who asked if she wanted to be married. When the girl said she wanted to go back to school her mother told her to pack a suitcase and they planned that she would return with her mother to the village where she worked. Before that happened however her male relatives found her and she was returned to Jezile.

She said she was beaten with a sjambok and sticks by Jezile and his brother until she agreed to put on the wife’s attire that she had removed. Next day Jezile left for Cape Town taking her, protesting, with him. When she arrived in Cape Town, where she knew no one, she refused to eat and again refused to have sex with Jezile. She says that his brother held her down to allow Jezile to rape her.

After that she was locked in the house during the day while he went to work. He refused to let her go back to school saying he did not want an educated wife.

According to the girl the threats and beatings became more serious after that, and he hit her with a belt and a broom handle made of aluminium. It broke during the assault and left her with a serious open wound on her leg.

She says that he forced her to have sex several times more and continued to keep her locked up. Finally she managed to escape. She showed some women at a taxi rank her leg and they called the police. Her mother was contacted and she spent the night at the police station.

Next day she was examined by a doctor. By this time the wound had become septic – the doctor described it as a ‘huge gaping wound’ – and needed urgent treatment. The doctor also noted that she appeared traumatised, fearful and crying, and was still wearing her wife’s attire. He noted bruises on her body and genital injuries.

Jezile’s evidence was that in Cape Town the girl had been ‘very cheeky and not respectful’ to him. They had argued and in one of these arguments he lost control and grabbed the mop. In the scuffle the handle broke and struck her leg. He claimed he arranged for his sister in law to take the girl to a doctor, but the court did not believe this evidence. Just two days after they arrived back in Cape Town she ran away. He said he did not understand her complaints against him and that he was ‘deeply hurt’ by her allegations.

He said he had done everything by the book, including the proper involvement of ‘the elders’ to make theirs a ‘traditional wedding’. He also claimed it was a normal thing for a newlywed woman to run away and be brought back but that she eventually ‘settles down and stays’.

He denied raping her and said he had never abused or forced himself on her and that she had been a willing sexual partner.

She only had herself to blame for her leg wound. All he had done was to ‘discipline her when she became defiant and disrespectful’ even though she knew that in their culture a wife was required to be completely submissive to her husband.

Crucially Jezile, who cited traditional custom and culture to back his actions, said that custom did not permit forced marriage and that if she had ever expressed the wish not to marry him or to stay married to him she would have been free to go.

The trial court found that the girl had been an excellent witness and accepted her version of events, particularly as they had been corroborated at key points by other witnesses such as her mother and the doctor.

After his conviction and sentence Jezile appealed, saying the practice of ‘ukuthwala’ which had been practised by him in this case, involved a particular understanding of bridal consent, ‘because it is an integral part of ukuthwala that the ‘bride may not only be coerced, but will always pretend to object … since it is required or at least expected of her to do so.’

Jezile’s lawyer told the court in his heads of argument: “(This) informs the intention of the male and the most relevant factor in terms of Xhosa custom (is) whether the sexual violation of the female is criminal or a sanctioned form of coercion … depending on the permutation the consent of the female (is) irrelevant….”

Because the full bench of high court judges hearing the appeal felt it was important to have input from a range of experts, they invited seven organisations to become involved. These included the Women’s Legal Centre Trust, the Commission for Gender Equality, the Rural Women’s Movement and the National House of Traditional Leaders.

Much of the lengthy appeal judgment, delivered today, deals with the evidence given by these experts – their testimony covered a wide range of issues – and with South Africa’s international and constitutional obligations to protect children as well as to respect traditional law and custom.

On the basis of the expert evidence the court decided that Jezile had been involved in an “aberrant” form of the customary practice of ukuthwala and that as such it could never be protected by the law.

“Ukuthwala” was quite different from what had happened in this case and it was appropriate that Jezile’s conviction and sentence should stand, said the court.

The judges said that the evidence from the girl that she ran away from his Eastern Cape village, walked through the forest at night, alone, and slept in the open was clearly a desperate attempt to escape from Jezile. For him to claim that he believed she ran away ‘out of sheer modesty’, was “cynical” argument, and his reliance on customary practice was entirely misplaced.

The appeal court, however, found that the assaults of which he had been found guilty, formed part of the rape and thus acquitted him of the assaults as a separate crime. This however has made no difference to his effective period of imprisonment.

Jezile v State