Durban man loses appeal against conviction for rape of “married child”

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  • A man in Durban has lost his appeal against his conviction for rape of a minor child.
  • The appellant’s defense was that the complainant had been presented as a future wife and that he did not know her age.
  • The complainant and the appellant belong to a church which promotes marriage among its members.

A man in Durban has lost his appeal against his conviction for the rape of a 14-year-old girl whom he claimed to be his “future wife”.

According to court documents, the plaintiff, a 14-year-old child, was turned over to the appellant – who was 32 at the time – as part of a proposed arranged marriage.

The 32-year-old man was convicted of rape on August 16, 2018 and sentenced to 18 years in prison in November of the same year.

His co-accused was convicted of failing to report a sexual offense against a minor and was subsequently sentenced to three years in prison. The court, however, allowed the 32-year-old to appeal his conviction on May 31, 2019.

However, the Durban High Court ruled last month that it could find no fault in the trial court’s findings, adding that the court had scrutinized all the evidence with a fine comb.

“He clearly expressed the effects of the flaws he found in each party’s version. Under the circumstances, I cannot find any error in the reasoning and assessment of the evidence by the court and, therefore, the guilty verdict which he rendered in respect of the appellant, ”the High Court ruled.

And he added that “the beliefs and practices of the appellant’s church cannot replace the laws and the Constitution of this country which prohibits sex with underage girls.”

Judge Khosi Hadebe and Judge Mohini Moodley dismissed the appeal against the conviction on October 12, 2021.

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According to the High Court ruling, the 32-year-old man, daughter, her father, and the woman who arranged the covenant, were all members of the same church, but not necessarily from the same branch.

“The church encourages marriage [among] his members. Once a man is ready to settle down to get married, he goes to one of the female leaders of [the] church and asks to be matched with a partner.

“The idea of ​​this practice is that people should already be lovers and of marrying age,” the judgment reads.

The father, a single parent, was raising the 14-year-old daughter and her two younger siblings and, according to court documents, the woman offered to take in the three siblings because their father worked nights.

The complainant and her siblings began to live in the woman’s house.

The victim told the court during the trial that when the woman asked him to live with her, she told him that she “had found a husband for her”. However, the girl dismissed this as a joke.

“It is during this stage that [the woman] started the matchmaking process. She took it upon herself to send the complainant to the appellant’s house to be introduced as a future wife.

“According to her, it was only after this initiative that she involved the father of the complainant in what was happening. Her version is that the father of the complainant accepted the arranged marriage,” said the judgment.

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However, the child’s father denied agreeing, claiming that when he was informed of the arranged marriage, he asked for his daughters to be returned.

“In the father’s version, this was followed by an apology, and the wife continued to take care of the children,” the judgment read.

“The visits continued and on at least three of these visits the complainant was subjected to sexual intercourse by the appellant.

“She was not a willing participant. The caller would threaten her with violence if she did not cooperate and refused to remove her clothes. At one point, he threatened to whip her with his belt.

“Every time after intercourse, she would go back to [the woman] and made a report as well and noted his dissatisfaction with what was going on. [the woman] would tell him not to worry, to hang on because everything would be fine.

“The court also heard that the man would give the girl gifts and that she would also be called to his house for various tasks such as washing her blankets.

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The child’s father told the court that he only learned about what was going on during school holidays and immediately approached church leaders who called the woman to a meeting.

Social workers eventually intervened and the police arrested the woman and the appellant.

In his defense, the man tried to claim that he did not know the girl was underage. However, according to court documents, this statement, “… became irrelevant when it became clear that the appellant actually knew, or should have known, that the complainant was a child.”

In its final analysis, the trial court concluded that the child had told the truth and further concluded that “… the appellant’s version was not reasonably possible and therefore rejected it as fake “.

Grounds for appeal

In his appeal, the man claimed that when he met the victim, in his mind he was meeting his “future wife”, who consented to all the activities they did.

He also said the child never told him that she did not accept to be his wife or that she did not love him.

In its ruling, the High Court said it was convinced the man had been properly convicted and his appeal against the conviction should fail as there is ample evidence to show that he knew the plaintiff was a minor.

“Despite his mother’s concerns and his own concerns about the complainant’s age, he went ahead and imposed himself on the complainant and raped her on several occasions.

“The fact that her own church does not allow premarital sex does not improve things for the appellant,” the judgment said.

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The court also pointed out that the problem of forced child marriages is a huge problem and that it has infiltrated most of the African Union countries in the southern hemisphere.

“The Republic of South Africa has not been spared. If these unwanted child marriages are not achieved thanks to what is mentioned in Jezile v S[25] like the aberrant ukuthwala custom, this is done under the cover of the church as is evident [of] what is happening in the Apostolic Church, as it has happened in the case which concerns us ”, we read in the judgment.

“It is sad that in most of the cases of these marriages, the families of these young ‘wives’ are complicit in the sale of their minor children in these forced child marriages.”

He added that the courts, especially courts of higher jurisdiction, must act as a buffer between these young women and their families and the religious sectors to which they belong.

“The courts must be relentless in this area and they should continue to crack the whip until the law against these marriages is entrenched.”

The appeal was then dismissed.

Read the full judgment here.

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