South Africa-27th Session May 2017-Harmful practices based on cultural / traditional values

Para 62) Government continues to implement measures to eradicate cultural practices that are harmful particularly to women and girls such as Ukuthwala, virginity testing, widow’s rituals, ukungena, breast sweeping/ironing, and other practices that may be discriminatory and harmful. Para 63) The Department of Traditional Affairs (DTA) has been tasked with the responsibility to develop a legislative framework on the customary initiation practice, covering both males and females. Even though Initiation, is a sacred and respected customary practice used as a rite of passage to adulthood, the practice has in recent years been subject to abuse. In some instances, it has resulted in the death of initiates as well as serious injuries (bodily harm). Para 64) On 16 March 2021, the National Assembly officially adopted the Customary Initiation Bill. The Bill which is before Parliament for consideration is a significant step towards formalising the customs and norms of the traditional institution of initiation. It is hoped that it would make life better for future initiates and make this traditional practice more efficient. Once promulgated into law by the President, it will prohibit customary initiation practices that infringes on the dignity and wellbeing of both girls and boys respectively. Para 65) Section 17 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits the sexual exploitation of children by their parents and others. Parents, relatives or others who collude in, or aid and abet, the unacceptable practice of ukuthwala of a girl child commit the crime of the sexual exploitation of children. These parents and relatives also face being charged with Trafficking in Persons Act, under section 71 of this Act. Perpetrators, parents and community members who aid, support or participate in forced marriage rituals could now face criminal prosecution under the Trafficking in Persons Act, and can no longer hide behind antiquated customs. Para 66) With regards to ukuthwala there are several programmes and interventions. The outreach programmes organised by government also encouraged girls and women to report all cases of ukuthwala to the law enforcement agencies so that justice can prevail. Furthermore, the South African Law Reform Commission (“SALRC”) published a Discussion Paper 132: “The practice of ukuthwala (Project 138), which set out the preliminary recommendation for law reform relating to the practice of ukuthwala”. The Discussion Paper was published on 01 September 2014 and was distributed as widely as possible with a view to identify alternative policy and legislative framework to regulate the practice of ukuthwala. The SALRC thereafter published the Revised Discussion Paper, which includes a chapter on public consultations and a Draft Prohibition of Forced Marriage and Child Marriage Bill. The Revised Discussion Paper 138 was published on 30 October 2015. The SALRC’s investigation focused mainly on the distortion of the practice of ukuthwala. The main recommendation was the enactment of a new legislation called the Prohibition of Forced Marriage and Regulation of Related Matters Bill. The matter is still under consideration. Para 67) An important judgment by the Western Cape High Court in S v Jezile8 held that ukuthwala was not a defence to charges of rape, human trafficking and assault. In February 2014, the Wynberg Regional Court convicted Mr Jezile after finding him guilty of ukuthwala on three counts of rape, human trafficking and assault and sentenced him to 22 years behind bars. In addition, the court ordered that his name be included in the National Register for Sexual Offenders in accordance with Section 50(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual Offences Act). He appealed the conviction and sentence at the Western Cape High Court but on 23 March 2015, the full bench of the High Court rejected his appeal and confirmed the decision of the court a quo. The decision to prioritise inalienable human rights above oppressive cultural liberties indicates an important realisation that culture must evolve to reflect and support the spirit of the times that we live in. Para 68) The Sexual Offences Act 32 of 2007 rightfully criminalises all forms of forced sexual penetration. This includes digital penetration, such as a finger which occurs during virginity testing. The Children’s Act 38 of 2005 has made it illegal for Children under the age of 18 to be subjected to virginity testing and female genital mutilation. Virginity testing is widely practiced in some parts of the country and is regulated in section 12 of the Children’s Act. During the parliamentary process, when the amendments to the current Children’s Act was debated and drafted, the issue of banning virginity testing was highly debated and various opinions, research papers and submissions were considered. The current section as it stands is a result of robust debates and to some degree a compromise from certain sectors of society. Para 71) The National Prosecuting Authority’s Sexual Offences and Community Affairs (SOCA) Unit participated in several public awareness and community projects on genderbased violence, human trafficking and relevant legislation nationally in line with the “365 National Action Plan of no violence against women and children”. This intervention entailed a combination of public awareness campaigns with relevant stakeholders but also radio interviews / discussions, focussing inter alia on the following topics: the essence of gender based violence, influence of drugs and alcohol at schools, child pornography, reporting of GBV-matters, LGBTI-cases, sexual violence / abuse at schools and tertiary institutions, importance of forensic medical examinations and post-trauma consequences of GBV, ukuthwala-practices, existence of sexual harassment and what it entails and human trafficking specifically for sexual exploitation.