S v Jezile

• Jurisdiction: South Africa
• Judge: Yekiso J, Saldanha J and Cloete J
• Judgment Date: 23 March 2015
• Citation: 2015 (2) SACR 452 (WCC)
• Docket Number: A 127/2014
• Counsel: M Calitz for the appellant, instructed by Legal Aid, Cape Town M Marshall and BE Currie-Ganwo for the state. S Poswa-Lerotholi for the National House of Traditional Leaders. Z Titus for the Women's Legal Centre Trust. M Bishop and UK Naidoo for the Commission for Gender Equality; the Rural Women's Movement; the Masimanyane Women's Support Centre; and the Commission for the Promotion of the Rights of Cultural, Religious and Linguistic Communities.
• Court: Western Cape Division, Cape Town

The court:

Introduction F

[1] On 7 November 2013 the appellant was convicted in the Wynberg Regional Court on one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault. All of the convictions pertain to a single complainant.

G [2] On 13 February 2014 the appellant was sentenced to 10 years' imprisonment on the human-trafficking count, 20 years' imprisonment on the three rape counts (which were taken together for purposes of sentence), 6 months' imprisonment on the count of assault with intent to cause grievous bodily harm, and 30 days' imprisonment on the count of H common assault. The trial court further ordered that eight years of the sentence for human trafficking, as well as the sentences imposed for the two assaults, would be served concurrently with the sentence imposed for the rapes. The appellant was thus sentenced to an effective 22 years' direct imprisonment. In addition the trial court ordered that the I appellant's details be included in the National Register for Sexual Offenders in accordance with s 50(2)(a) of the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007 (the Sexual Offences Act).

[3] The convictions all relate to a series of events which occurred over J the period January to March 2010, starting in a remote rural area of the

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Eastern Cape and ending with the complainant fleeing from the appellant's A home in Philippi near Cape Town and laying criminal charges against him.

Background

[4] The facts which became common cause during the trial are B succinctly set out in the trial court's judgment and we can do no better than to largely repeat them, amplifying where we consider it necessary.

[5] During December 2009 or early January 2010 the appellant, who was 28 years old at the time, departed from his residence in Philippi for his home village in the Eastern Cape with the specific intention of finding C a girl or young woman to conclude a marriage in accordance with his custom. His stated requirements were that the girl or young woman should be younger than 18 years old, because over that age she would likely have children. He wanted a virgin. According to the appellant, the ideal age for his chosen wife was 16 years old. D

[6] During January 2010 the appellant noticed the complainant, then 14 years old, and decided that she would make a suitable wife. They had neither spoken to nor even been introduced to each other at that stage; and the complainant was entirely unaware of who the appellant was or what his intentions were. She had just commenced grade 7 at her local E school. The only reason why the appellant even had occasion to notice the complainant was because she had been sent by a male family member, whom she referred to as her uncle, to fetch a cigarette for him from a house at which the appellant was present at the time. The complainant's father is deceased and she lived with her maternal grandmother and other family members because her mother worked in F a nearby village or town and was only able to come home to visit at the end of each month.

[7] On the same day that the appellant first saw the complainant, he requested his family to start the traditional lobola negotiations with the complainant's family. He and two of his family members then G approached the complainant's male family members (in a neighbouring village) to start the negotiations. It would appear that they were concluded over the course of one day. Early the following morning the complainant was called to a gathering of various male members of the two families and informed by one of them, who was not known to her, that she was to be married in another village. H

[8] The complainant was instructed by her uncle to take off her school uniform and to put on different clothes. Her resistance to this instruction was ignored. Her uncle thereafter took her one hand and another man the other. She was removed from her home and taken to the house at which the appellant had noticed her the day before. On the way to this I house she was introduced to the appellant for the first time and informed that he was to be her husband.

[9] Having arrived at the appellant's house in his home village, the complainant was immediately dressed in amadaki (specially designed attire for the new bride, or makoti, which was referred to in the trial as J

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A 'the makoti attire or clothing'). She was instructed to participate in various traditional ceremonies, as well as attend to certain household duties for the appellant, which, after resisting, she apparently did. It was during one of these ceremonies that the complainant allegedly became the appellant's customary-law wife. At a stage, lobola of R8000 was paid by the appellant to the complainant's maternal grandmother, who B subsequently gave it to the complainant's mother.

[10] The complainant was unhappy and ill at ease (the reasons and extent of this were in issue during the trial) and left her new marital home a few days into the marriage, hiding first in a nearby forest and then, on C her mother's instruction, at another house. She was found and promptly returned to the appellant by her own male family members two to three days later. Shortly thereafter the appellant informed the complainant that he would be returning to Cape Town with her. This trip was sanctioned by her male family members. They travelled from the D Eastern Cape to Cape Town by taxi and, after their arrival, resided with the appellant's brother and his wife in their shared home in Philippi. During the period in which the complainant resided with the appellant in Cape Town, he would leave each morning to seek employment while she was required to remain behind and attend to household chores.

E [11] Sexual intercourse took place between them on various occasions (the complainant maintained that there were seven such occasions within a matter of a few days after their arrival in Cape Town, all of which were against her will). Within the same period the appellant and complainant argued. During one of their arguments the complainant sustained an open wound to her leg. It was shortly thereafter that the F complainant fled from the appellant on 2 March 2010. On the same date she reported the events to the police, who took her to be examined by a doctor on 3 March 2010.

[12] At issue in the trial were the following:

[12.1]

Whether the complainant travelled willingly with the appellant G from the Eastern Cape to Cape Town, and remained in Cape Town willingly with him until she fled, or whether she was trafficked to Cape Town by the appellant for purposes of exploitation or abuse of a sexual nature;

[12.2]

whether sexual intercourse took place on at least three occasions; and if so, if this were with the complainant's consent (her age H would only become relevant for purposes of a conviction on statutory rape if it were found that she had consented — although she was 14 years old, the appellant claimed that she told him that she was 16 years old); and

[12.3]

whether the injury that she sustained to her leg was caused by I the appellant.

[13] It should be noted that, although the complainant testified about seven rapes, all of which occurred after her arrival in Cape Town, the appellant was only charged with three rapes. Furthermore, on his own version, sexual intercourse occurred on two occasions. According to J the appellant, sexual intercourse took place once before they left the

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Eastern Cape and once after their arrival in Cape Town. This is also A relevant when considering the conviction on the human-trafficking count.

The evidence in the court a quo

[14] The state adduced the evidence of four witnesses, namely the B complainant, her mother, the police reservist who had taken her statement and Dr Narula who had examined her on 3 March 2010. The appellant (who had exercised his right to make no admissions at the outset or to provide an explanation for his plea of not guilty) testified in his own defence. He called two witnesses, namely his sister-in-law (with whom he and the complainant had resided in Cape Town) and Prof Francois de Villiers, an expert in customary law. Given the C common- cause facts, what follows is a summary of the evidence of the various witnesses on the disputed issues only.

[15] The complainant testified that during her errand to fetch a cigarette for her uncle, one of the two men whom she met there had asked her to identify herself by her name, which he already knew. She became D suspicious and, when she returned with the cigarette, pleaded with her uncle never to force her into a customary marriage. She knew that this had happened to a number of other young girls and dreaded the prospect of it occurring to her.

[16] Whilst being forcibly restrained by being held by her arms en route E to her 'marriage' by her uncle and the appellant's family member (a considerable distance away) she cried and pleaded but was instructed by her uncle to stop. She was then handed over to the appellant and two of his family members whom they met along the way. She was similarly restrained by them for the remainder of the journey to the appellant's village. F

[17] After being instructed to put on her amadaki, the complainant was told to sit behind a door, thereafter to eat and later to spend the night with the appellant. When she refused to eat, the appellant's brother threatened her with a stick. She again protested and he left her alone. She G wept and told the appellant that she did not want to be his wife, nor did she want to sleep with him. She ended up sleeping on the same bed as the appellant, wrapped in a blanket, but facing away from him.

[18] The complainant's first attempt to escape was the following morning when she...