In a case labelled as “bordering on human trafficking”, a member of the 12 Apostles Church in Christ, who was “gifted” a 14-year-old as his potential bride, has lost his appeal against a rape conviction that sent him to jail for 18 years.
The church elder who arranged the “union” was sentenced to three years in jail. She was ordered to serve part of it doing community service.
The shocking details of the case emerged last week in a judgment penned by two KwaZulu-Natal judges, Khosi Hadebe and Mohini Moodley.
They dismissed a bid by Jabulani Emmanuel Mbhamali to appeal his conviction.
Mbhamali and the church elder, named only as Mrs Phakathi, were arrested after the 14-year-old girl complained to her father — a single parent — that she had been forced into the relationship and was being threatened with violence, including being whipped with a belt, unless she had sex with Mbhamali, who was 32 years old at the time.
The pair stood trial in the Inkanyezi regional court and were convicted and sentenced in 2018.
On appeal, Mbhamali said the complainant was his prospective wife. He said she had consented to having sex and that he was not aware she was under 16.
State advocate Bonga Vika argued that there could be no marriage, because the girl was 14, and that the case “bordered on human trafficking”.
“It seems clear that courts have to be the buffer between these young women and their families and the religious sectors they belong to,” Judge Khosi Hadebe (with Judge Mohini Moodley concurring) said.
“The evidence abundantly shows that he was aware that she was underage. His church's beliefs and practices cannot supersede the laws and Constitution of the country which forbids sexual intercourse with underage girls.”
Referring to evidence before the trial court, Hadebe said Mbhamali, Phakathi, the child’s father and the child all belonged to the 12 Apostles Church in Christ which encouraged marriage amongst its members.
• 14 - The age of the Eshowe girl who became a child bride to a man 18 years her senior
• 18 - The number of years Jabulani Mbhamali was sentenced to for rape
— IN NUMBERS
Church leader Senzo Bernard Dlamni testified that this had to be in keeping with the law and that even the ages of the two people should be matched and they should not have sex before marriage.
The girl and her younger siblings went to live with Phakathi because the teen needed chronic medication and often defaulted on taking it when her father worked at night.
During her evidence, the 14-year-old said Phakathi told her she had found her a husband but she dismissed it as a joke.
She said Phakathi sent her to Mbhamali’s house on several occasions and even accompanied her when she was expected to have sex with him.
“On at least three of these visits, he had sex with her. She was not a willing participant. She told Phakathi about this….she would tell her to ’hang in there’ and that everything would be alright.”
The teenager testified that Mbhamali gave her money to buy a phone and bought her gifts. In exchange she was made to do chores.
Her father said he only became aware of what was happening when the children visited him during the school holidays.
He complained to church leadership who chastised Phakathi and she apologised. Social workers and the police were then called in.
Judge Hadebe said Mbhamali claimed he was not aware that she was underage.
Even his mother had said to Phakathi that she was “too young”, who retorted that they should "in fact be thanking her and querying if they would rather she brought them an ‘old goat’ for a bride.
“In his own evidence, he said he had actually complained that ‘that thing looked small and young’.”
Referring to similar cases in Zimbabwe, and academic studies on the issue, Judge Hadebe said forced child marriages were a huge problem that had infiltrated most African union countries in the southern Hemisphere.
Shalo Mbatha, Zulu royal historian at the University of Zululand said there was “nothing cultural about this vile deed” and in ancient times, anyone who violated a girl or a woman would be guilty of a capital crime and executed.
“This is neither embedded in culture nor traditional African religions. There must be anti-child kidnapping public awareness campaigns, especially in rural areas. The same resources must be invested as in anti-GBV campaigns.
“Child molesters and perpetrators of kidnapping and abuse of children under the guise of a non-existent culture should be arrested as they are nothing more than paedophiles,” Mbatha said.
She said the concept of ukuthwala - when translated as ‘the girl being carried away against her will’ - was kidnapping and was illegal.
“But traditionally, ukuthwala was agreed upon between two lovers, which was eloping.”
A member of the church who didn't want to be identified said the church did not allow “old men to marry young girls. It is not allowed….it is considered a dirty marriage and it is wrong to do such things.”
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