- S v Mbhamali Case No AR/579/2019 dated 12 October 2021, High Court Durban (KZD)

Definition of “ukuthwala”
According to the Department of Justice and Constitutional Development, “ukuthwala is a form of abduction that involves the kidnapping of a girl or a young woman by a man and his friends or peers with the intention of compelling the girl or young woman’s family to endorse marriage negotiations”.

For an informative discussion of ukuthwala, Google “Rethinking ukuthwala, the South African ‘bride abduction’ custom” dated 12 September 2021, written by Nyasha Karimakwenda published by The Conversation.

Legal provisions referred to by the High Court, Durban
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“Act 32 of 2007”)

Section 1 of Act 32 of 2007, definition of the word “child”

“‘Child’ means a person under the age of 18 years and ‘children’ has a corresponding meaning”.

Section 3 provides as follows:

“Rape

3. Any person (‘A’) who unlawfully and intentionally commits and act of sexual penetration with a complainant (‘B’), without the consent of B is guilty of the offence of rape.”

Section 15:

“Acts of consensual sexual penetration with certain children (statutory rape)

15.(1) A person (‘A’) who commits an act of sexual penetration with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child, unless A, at the time of the alleged commission of such an act, was -

(a) 12 years of age or older but under the age of 16 years; or

(b) either 16 or 17 years of age and the age difference between A and B was not more than two years.

(2)(a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the Director of Public Prosecutions if A was either 16 or 17 years of age at the time of the alleged commission of the offence and the age difference between A and B was more than two years.

(b) The Director of Public Prosecutions concerned may delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.”

Section 16:

“Acts of consensual sexual violation with certain children (statutory sexual assault)

16.(1) A person (‘A’) who commits an act of sexual violation with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child, unless A, at the time of the alleged commission of such an act, was -

(a) 12 years of age or older but under the age of 16 years; or

(b) either 16 or 17 years of age and the age difference between A and B was not more than two years.”

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[This is only an extract of an article published in Pollex in Servamus: May 2022. If you are interested in reading the rest of the article, send an e-mail to: This email address is being protected from spambots. You need JavaScript enabled to view it. to find out what you need to do. Ed.]