Jezile Ukuthwala Judgment Signals Progress and Continuing Challenges

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A girl will learn very early in life how the society she inhabits measures her value, and what gender roles she is expected to adhere to.  Ukuthwala cases involving brutality lay bare the importance of questioning and undermining gender norms that are detrimental to girls and women, whether these standards are part of the status quo or accepted only by a minority.  The Western Cape High Court’s decision in the Jezile matter marks an important juncture in this respect by affirming that gender violence to which particular cultural rationales are attached cannot be justified.

In the judgment delivered at the end of March, the Court unequivocally pronounced that violent and coercive practices committed in accordance with “aberrant” forms of ukuthwala shall have no protection under the law.

The appeal in this case concerned a 22-year sentence for rape, assault and trafficking handed down by the Wynberg Regional Court in February 2014 against Mvumeleni Jezile.  In 2010, the then 28-year-old defendant abducted the 14-year-old victim from her home in the Eastern Cape after negotiating and paying R8,000 in lobolo to her family.  He forced her to travel with him to his home in Philippi, Cape Town. During the time that she was held against her will, he repeatedly raped and physically attacked her.

This case is significant as the first ukuthwala-based conviction in the Western Cape.

The essence of Mr. Jezile’s defence on appeal was that the lower court had not given his culturally based motivations sufficient consideration; and that his alleged transgressions of rape and trafficking should be placed within the framework of ukuthwala and customary marriage.

Ukuthwala, which means “to carry” in isiXhosa and isiZulu, is a customary practice of abduction for purposes of marriage which is utilized to bypass extensive and lengthy marriage rituals – and at times occurs without the consent of the girl or woman.

Integrating the opinions of the seven amici curiae (friends of the court) and experts, the High Court determined that acts committed by the defendant were repugnant to the established customary forms of ukuthwala and traditional marriage.  In doing so, it upheld the rape and trafficking convictions handed down by the trial court.

The Jezile decision stands as an excellent example of how the law should be used to protect women and girls who are victims of rape and coercion.  Apart from an error on the charge sheet that prevented the courts from being able to impose a life sentence, in many respects this was a near exemplary rape trial, especially when compared to the dire manner in which most rape cases are handled in South Africa.

The police took the complaint seriously; a thorough medical examination was performed and solid corroboration of the rapes and beatings obtained; the medical examiner testified; and the complainant herself was a credible, consistent and perceptive witness.

On the highly contested subject of ukuthwala, the Court’s efforts to explore the nature of the practice and address its constitutional implications are praiseworthy.  The opinion addresses critical questions that have been raised in public discourse, yet it also reveals some varying opinions on basic character of ukuthwala.  For example, while the National House of Traditional Leaders portrayed “traditional” ukuthwala as a “romantic” practice, other friends of the court emphasized the patriarchal nature of both the “traditional” and “aberrant” forms of ukuthwala.

Jezile’s own views however, most clearly show how the subject of ukuthwala still remains a complicated territory; and what a great disconnect exists between many South Africans who sustain certain forms of living customary law, and those who may speak on their behalf.  The complainant’s male relatives and Jezile’s own brother and sister-in-law supported his actions.  His methods comported with local perceptions of culturally sanctioned behavior.  If the form of ukuthwala and marriage practiced by Jezile is not traditional, and is instead as the Court determined, “aberrant”, we must subsequently ask: aberrant to whom?  There is a yet to be defined threshold applied in relation to ukuthwala that fails to clearly define what renders something an accepted custom.  Where is the line drawn?  How do we account for the fact that a not insignificant portion of this country’s population have articulated and utilized these methods and beliefs as tradition?  If something repulses our human rights oriented sensibilities, does this nullify its status as custom?  Would this not then mean that we should also interrogate other more widely -recognized traditions that impinge upon women and girl’s rights on a daily basis? Moving forward, these are questions that will require further exploration.

While these questions continue to be grappled with, on the ground it is critical to employ a range of tools to gradually diminish beliefs and patterns that degrade women and girls.  The law is a critical factor in this process, as are other means such as public education campaigns and economic empowerment.  Facilitating inclusive dialogues on culture and gender at a community level are also key.  In Senegal and other west African countries with a high prevalence of female genital mutilation (FGM) and forced child marriage, a non-profit organization, Tostan, was successful in changing attitudes by going from village to village, and empowering communities to create a new consensus on respectability for women and girls in order to facilitate the abolition of these harmful customs.

This precedent demonstrates the power of utilizing carefully tailored initiatives to create sustainable shifts in regard to customary conceptions.  In the South African context, we should endeavor to identify what specific approaches have been, or have the potential to be, most impactful in eliminating abusive and discriminatory practices.

Returning to the Jezile case, perhaps the most remarkable aspect of the judgment is that it gives us a window into the experiences of a young woman who at every juncture of her coerced existence did all she could to protest and escape.  The complainant’s mother had tried in vain to save her daughter, but could only do so clandestinely for fear of reprisal from the girl’s uncle and other male relatives.  It was the men who agreed to the marriage, and also forcibly returned the girl to her husband when she initially ran away from his home.  Were it not for the girl’s courage and unfailing persistence in the face of ill treatment by her male family members, and recurring violence at the hands of the appellant, this “case” would not exist.  We would not know her story; just as we do not know the stories of countless other women and girls who are trapped in violent forced marriages.  Her fortitude is a stark reminder that it is incumbent upon us to do more to protect her and others who are at risk of having their futures irrevocably arrested.

opinion-grey Nyasha Karimakwenda is a human rights lawyer and researcher on gender based violence and women's rights.
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