Absolutely prohibited

30 April 2022 14:00 by Merilyn Kader

In Mbhamali v S [2022] 1 All SA 488 (KZD), practice of child marriages does not supersede the laws and the Constitution of the country. The fact that a child might have consented to such an act is no defence.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Criminal law and procedure - Sexual intercourse with underage child: Convicted of rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act), the appellant in Mbhamali v S [2022] 1 All SA 488 (KZD) was sentenced to 18 years’ imprisonment. The trial court granted leave to appeal against conviction.

The complainant was a 14-year-old who was introduced to the appellant by a fellow member of his church as a prospective wife. The church member responsible for the introduction, Mrs Phakathi, was the second accused in the trial court. The complainant’s father was unaware of the situation until later. His intervention led to the arrest of the appellant.

In response to the charges against him, the appellant attempted to state that he was not aware that the complainant was underage. However, he could not convince the trial court that he could reasonably not have known that the complainant was a child.

It was held by Hadebe J (Moodley J concurring) that ss 15 and 16 of the Act create a prohibition of any act of sexual penetration or sexual violation with a child who is 12 years or older but under the age of 16 years. The fact that such child might have consented to such an act is no defence. In the context of child marriages, s 56(1) of the Act stipulates that when an accused person is charged with an offence under ss 3, 4, 5, 6 or 7, it is not a valid defence to contend that a marital or other relationship existed with the complainant. In terms of s 12(1) of the Children’s Act 38 of 2005, ‘every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being’.

The trial court, on an evaluation of the totality of the evidence, was satisfied beyond reasonable doubt that the complainant did not consent to sexual intercourse with the appellant and that there was no reasonable possibility that the appellant believed that she had consented. It also found that the evidence of the appellant that he reasonably believed that the complainant was 16 years, could not be reasonably, possibly true. On appeal, those findings by the court below could not be faulted. There being no misdirection in the trial court’s reasoning and evaluation of the evidence, its conclusion regarding the appellant’s guilt had to be confirmed. The court specifically addressed the sanction by certain churches of the practice of child marriages. It was held that the appellant’s church’s beliefs and practices could not supersede the laws and the Constitution of the country, which forbids sexual intercourse with underage girls.

The appeal against conviction accordingly failed.

Merilyn Rowena Kader
Legal Editor at LexisNexis