Mbhamali v S (AR579/2019) [2021] ZAKZDHC 35; 2021 (2) SACR 627 (KZD); [2022] 1 All SA 488 (KZD) (12 October 2021)

Mbhamali v S (AR579/2019) [2021] ZAKZDHC 35; 2021 (2) SACR 627 (KZD); [2022] 1 All SA 488 (KZD) (12 October 2021)

The court found that the appellant was aware, or ought to have been aware, that the complainant was a child under the age of 16 and therefore incapable of consenting to sexual intercourse. The evidence demonstrated that the complainant did not consent and was subjected to sexual acts under threat and coercion. The appellant's reliance on religious or customary practices was rejected, as such practices cannot supersede statutory and constitutional protections for children. The trial court's evaluation of the evidence was thorough and cautious, particularly given the complainant's status as a single and child witness. The appellant's version was found not to be reasonably possibly true and...

Citation
[2021] ZAKZDHC 35
Parties
Appellant: Jabulani Emmanuel Mbhamali; Respondent: The State
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
12 October 2021
Case Number
AR579/2019
Procedural Posture
Criminal Appeal / Appeal Against Conviction Only
Outcome
Appeal against conviction dismissed.
Judges
Hadebe, Moodley
Legal Topics
Sexual Offences Act, Child Marriage, Consent in Sexual Offences, Customary Law and Religion, Children S Rights, Constitutional Protection of Minors
Criminal Law Constitutional Law Family and Children Sexual Offences Act Child Marriage Consent in Sexual Offences Customary Law and Religion Children S Rights +1 more

Case Brief

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Parties

Jabulani Emmanuel Mbhamali

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction Only

Legal Issues

  1. 1 Whether the appellant was aware that the complainant was underage at the time of the sexual acts.
  2. 2 Whether the complainant consented to sexual intercourse with the appellant.
  3. 3 Whether religious or customary practices can serve as a defence to charges of rape and child sexual offences.

Ratio Decidendi

The court found that the appellant was aware, or ought to have been aware, that the complainant was a child under the age of 16 and therefore incapable of consenting to sexual intercourse. The evidence demonstrated that the complainant did not consent and was subjected to sexual acts under threat and coercion. The appellant's reliance on religious or customary practices was rejected, as such practices cannot supersede statutory and constitutional protections for children. The trial court's evaluation of the evidence was thorough and cautious, particularly given the complainant's status as a single and child witness. The appellant's version was found not to be reasonably possibly true and...

Court Disposition

Appeal against conviction dismissed.

Orders

  • The appeal against conviction is dismissed.