THE case of a 14 year old girl abducted, ‘married’ to a man twice her age, locked up and raped, all in the name of traditional practice, has caused shock reaction.
The real horror is that this is no one-off crime. Calling it no less than ‘sexual slavery under the guise of traditional practice’, experts who gave evidence in the appeal said the practice is widespread.
In this case Mvumeleni Jezile, 28, had taken time off work in Cape Town to return to his Eastern Cape village and find a young wife.
When he spotted the girl he began negotiations with her male relatives. Talks continued through the next day though she knew nothing about it, or even that he existed. Lobola of R8000 having been agreed, she was delivered to him the day after that. On her way to school she was called in by the men, told her to take off her school uniform and put on special clothes. Then they forced her to go with them to be handed over to Jezile.
Two nightmare weeks followed. She was forced to undergo various ceremonies, dress as a new bride and travel with Jezile to Cape Town. When she refused his sexual advances she was held down and raped. She was beaten, badly injured and locked in the house while he was at work.
All of this, he said, was justified according to custom.
Eventually she escaped. Jezile was charged and sentenced but appealed. This week three high court judges confirmed his conviction and sentence saying he had cynically misused tradition.
Experts who testified in the appeal said ukuthwala, the custom that Jezile claimed to be practising, was an irregular way to conclude a customary marriage. When circumstances prevented a marriage from getting off the ground ukuthwala could help get round these obstacles.
But it always involved two consenting parties, both of marriageable age. In its proper form, it involved a mock abduction. The woman, who had previously agreed to the process, would put up a show of resistance for the sake of modesty. She would be taken to the man’s family home and put under the protection of the women there. Sex at this stage of the process was strictly forbidden.
The man’s family then sent a message to the woman’s family saying she was with them. This would be a signal that the man’s family wanted to start negotiations. If the parents refused, the woman would be sent home and damages would be paid. If they were willing to negotiate, she would go home anyway, so marriage talks could start.
Ukuthwala was not a marriage, but a way for a willing couple to initiate marriage negotiations by their families. For example where the woman objected to her family’s choice of partner, it alerted them to her preferred choice.
Clearly, said the experts, this case was not ukuthwala: the girl was too young, she did not consent and while genuine ukuthwala was a way to allow marriage negotiations to begin, in Jezile’s case lobola was paid beforehand.
What happened was a ‘perversion’, but it was a perversion that ‘often happened’ and with parental approval, especially in poor communities. In effect the family would be paid a fee to allow the girl to be abducted.
It was accepted and ‘widespread in very many communities’ for girls as young as 11 to be abducted and ‘married’ in the name of ukuthwala, the court heard.
Accepting this evidence, the judges upheld Jezile’s conviction and sentence for rape and trafficking.
Several of the experts giving evidence said that the practice of ukuthwala, even in its proper form, was a patriarchal custom and helped shore up patriarchal traditions. Though the appeal judges mentioned this view, they said that it was not relevant to the particular case they were deciding, and so this has been left for another court, with another set of facts, to consider.
Though too late for the girl in this case it’s important that investigators pushed through and brought a prosecution. It’s also significant that a senior court has clarified the distinctions between acceptable and unacceptable forms of this custom. Future offenders can now be held to the same standards.
As a society we need to address this terrible problem with more urgency.
Groups representing women and traditional leaders are working in communities to eradicate the practice – but they face many problems in fighting this horrific abuse of girls. Like poverty, as the court heard.
Then there’s anti-trafficking legislation allowing for life sentence; assented to in July 2013 it has still not been enacted. What is causing the delay?
Even without it Jezile could have faced a minimum life sentence for child rape. Because of a flawed charge sheet however the presiding officer was not bound to impose this sentence. It’s vital that prosecutors fully understand what’s at stake in cases like this – and that the charge sheet properly reflects the crimes with which alleged perpetrators are charged.