Court to look at customary marriageComment on this story
Cape Town - The case of a man jailed for rape, trafficking and assault does not fall in any category of customary marriage, the Western Cape High Court has heard.
Mvumeleni Jezile, 32, was sentenced in February to serve 22 years behind bars for crimes involving a 14-year-old girl.
The girl was taken from her Eastern Cape home and forced to enter an alleged customary marriage to Jezile, whom she did not know, in early 2010.
Jezile claims that at the time of the incidents, he and the girl were in a customary marriage - concluded through the Xhosa custom of ukuthwala.
He has taken his convictions and sentence, handed down by the Wynberg Regional Court, on appeal to the high court.
The high court is to hear arguments on October 24 on ukuthwala as recognised by customary law and whether it constitutes a valid defence for any of the charges on which Jezile was convicted.
In the high court on Friday, a full Bench of three judges gave the go-ahead for several organisations and bodies to be admitted as “friends of the court”.
They are the National House of Traditional Leaders, Women’s Legal Centre Trust, Centre for Child Law, Commission for Gender Equality, Masimanyane Women’s Support Centre, Rural Women’s Movement, and Commission for the Promotion of the Rights of Cultural, Religious and Linguistic Communities.
The organisations are to file written submissions and present oral argument and expert evidence in affidavits in relation to ukuthwala and Jezile’s case.
Advocate Sipokazi Poswa-Lerotholi said the National House of Traditional Leaders, which she was representing, as the custodian of cultural law and wanted to “dispel the myths” of ukuthwala.
One of the examples she gave of where ukuthwala might apply was an arrangement between two young people in love wanted to expedite their marriage.
“It is a precursor to the marriage. It is not the marriage.”
There were various types of customary marriages. “Our submission is that this one does not fall into any of those categories.”
Thousands of marriages were concluded through ukuthwala in accordance with the prescripts of the custom. However, there were reports of a few individuals who were “clearly not” subscribing to the customs and who were carrying out “kidnapping, rape and trafficking”.
The National House of Traditional Leaders was drafting a white paper on ukuthwala. This was at an “embryonic stage”.
The Jezile case, however, would be important in enlightening the court about the practice and the interpretation of it.
Advocate Zeynab Titus, for the Women’s Legal Centre Trust, said ukuthwala had been looked at as a “form of forced marriage” - and its history needed to be unpacked in greater detail. They would look at how courts in other countries had addressed such practices.
Advocate Michael Bishop, acting for a number of the organisations, excluding the Centre for Child Law, said the court had to determine what the practice of ukuthwala was in relation to customary law and whether Jezile’s actions fell outside it.
Advocate Mornay Calitz, for Jezile, said he did not object to the organisations being admitted as friends of the court, but to their leading further evidence. As a court of appeal, the court was bound by the record.