It has been almost eight years since Banyana Banyana star, Eudy Simelane, was raped and murdered in Kwa Thema, just outside Johannesburg, for being a lesbian. She was a victim of gender based violence - rape.
The perpetrator’s defence was that homosexuality is un-African and she should be corrected. Is it an African custom then to perpetrate violence and devalue women on a premise that homosexuality is un-African? Or rather, is it rape and violence against women that is un-African?
Traditional practices such as Ukutwala have often been used as a defence, unsuccessfully, to cases of rape and violence against women. Ukutwala is the practice of initiating a mock abduction of the prospective bride for the purpose of marriage. The court in Jezile v S (A 127/2014)  ZAWCHC 31, contemplated the accused's defence of Ukutwala on a charge of rape and abuse.
The court drew a distinction between what it referred to as Ukutwala in its original form and an aberrant form of Ukutwala that is currently being practiced. Based on submissions made by the amicus curiae, the court held that Ukutwala is an act of defiance by willing lovers to initiate the marriage negotiations between their families where there was some resistance to the marriage. The practice does not lead to marriage but is a method to initiate it.
The court considered the submissions of the amicus curiae that there are essential requirements that must be met for an Ukutwala:
- "the woman must be of marriageable age, which in customary law is usually considered to be childbearing age;
- consent of the parties is necessary;
- as part of the process the parties would arrange a mock abduction of the woman at dusk. The woman would put up a show of resistance for the sake of modesty but in fact would have agreed beforehand to the arrangement;
- the woman would then be smuggled into the man’s homestead and placed in the custody of the women folk to safeguard her person and reputation;
- the father of the man would be informed of the presence of the woman in his homestead and of his son’s desire to marry her;
- sexual intercourse between the couple is strictly prohibited during this period; and
- the man’s family would then send an invitation to the woman’s homestead either on the day of the mock abduction or on the following morning to inform her family that she was with his family".
The consent of the women's parents is essential for the conclusion of any customary marriage. In in the event that the parents of the women refuse the invitation or subsequent to negotiations reject the proposal, the women has to be returned to her parents and damages should be paid for the failed Ukutwala.
The practice is, therefore, based on consent between willing persons; anything else is regarded as an "aberrant" form of Ukutwala and if sexual intercourse took place it is considered to be rape. Therefore, it is not Ukutwala to rape and perpetrate violence against women in the name of marriage.
The Jezile case clarifies the position of African practices and customs. Violence and rape on women is not inherent to African customs. In fact, African customs are based on a process where the sanctity of women is protected through the need for consent of the women and her family for the conclusion of a marriage.
Women negotiating custom
The concept of negotiation is deeply entrenched in African custom and women are also included in these negotiations. This negotiation is illustrated in the case of Shilubana v Nwamtiwa 2008 (9) BCLR 914 (CC). In this case it was the Traditional Council first and not the Constitutional Court that came to the decision that Ms Shilubana can be a chief despite her being a woman. It was as a result of her negotiating and testing the boundaries that she asserts her right to become chief. The ability of woman, such as Ms Shilubana, to negotiate and test the boundaries of custom is a symbol of not only the importance of women in custom but more importantly that of negotiation and consent.
The Shilubana case cannot be looked at as a pioneering case for African custom. After all not far from the Valoyi Community where Ms Shilubana is Chief, live the Balobedu people who have always been led by Queen Modjadji.
It must be acknowledged that even in African or traditional customs there is the existence of patriarchy, where the place of women is one that is submissive and subordinate. It is this element of custom that is toxic and encourages violence against women.
The misconception, however, is the tendency to assert that all traditional customs are in themselves patriarchal. To say this would mean that they are inherently oppressive to women and should be done away with. This misconception misses the essence of customary law, which is based on negotiation and constant development, where positions and practices are ever changing and adapt to the social norms at the time.
The rape of Eudy Simelane, and many other women like her, has no defence in African customary law. A crucial element of customary law is consent by the woman. All the rituals and ceremonies are founded on mutual respect and a process of negotiation. While customary law and customs are not perfect, the community has the freedom through negotiation and time to mold it as they see fit. The power to bring about tolerance and understanding lies in the hands of those handing down the customs from one generation to another.
As an African man, a culture of rape has not been handed down through the generations from my forefathers to my grandfather, to my father and to me. What has been handed to me is respect for women. Freedom to choose. Acceptance of difference.
As published in Without Prejudice in December 2016.
Article by Mokhutwane Phooko, candidate attorney. Candice Pillay was the supervising partner.