Reaserch Literacy FOR LAW SCL 1502 PDF

Preview

Summary

notes to assist one to pass...

Description

FULL NAMES: ARNOLD BONANI MATIKO // STUDENT NUMBER: 5178-626-5 // MODULE NAME: RESEARCH LITERACY // MODULE CODE: SCL 1502 // UNIQUE NUMBER: 779205 // DUE DATE: 29TH MARCH 2016 ASSIGNMENT NO: 02 -------------------------------------------------------------------------------------------------

UNIVERSITY OF SOUTH AFRICA (UNISA) “LEARN WITHOUT LIMITS”

THE CONSTITUTIONALITY OF UKUTHWALA CUSTOM IN SOUTH AFRICA

Ukuthwala is regarded as form of an abduction that involves kidnapping a girl or a young girl by a man and his friends or peers with the intention of compelling her to agree into a marriage and/or her family to endorse marriage negotiations. Today ukuthwala is been practiced in different ways than the original tradition as it is marked by violence and rape 1. Anciently this custom of ukuthwala was practiced in Africa by mostly the Nguni’s which was a way of targeting certain girls or woman of marriageable age but it did not involve an act of rape and consensual sex with the girl or woman until the marriage requirements had been settled2. This act of ukuthwala was somehow directly punished in ancient times as the person who committed this type of an act incurred delictual liability in the form of payment of one or more herd of cattle to the father or the legal guardian of the girl or woman. It has been seen today that this act of ukuthwala had been turned to and abused particularly in the Eastern Cape wherein we have witnessed some act of kidnapping, rape and forced marriages of minor girls who are as young as twelve years of age by grown men who are some of them over the age of fifty years old3. RIGHT TO PRIVACY Section 14 of the Constitution of the Republic of South Africa, 19964 herein referred to as the “Constitution” explains this right as right to privacy. Privacy is what can reasonably be considered to be private, as it was held by Ackermann J that5: ____________________ 1, 2 & 3-Brochure: The Department of Justice & Constitutional Development. 4. The Constitution of the Republic of South Africa, 1996 5. Bernstein v Bester NO 1996 (2) SA 751 (CC).

FULL NAMES: ARNOLD BONANI MATIKO // STUDENT NUMBER: 5178-626-5 // MODULE NAME: RESEARCH LITERACY // MODULE CODE: SCL 1502 // UNIQUE NUMBER: 779205 // DUE DATE: 29TH MARCH 2016 ASSIGNMENT NO: 02 -------------------------------------------------------------------------------------------------

“….In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society…” RIGHT TO HUMAN DIGNITY Section 10 of the Constitution provides for a right to human dignity as follows: Everyone has inherent dignity and the right to have their dignity respected and protected. It can from this be clearly deduced that the constitutional protection to dignity ‘requires us to acknowledge value and worth of all individuals as members of society’ and further it is a source of a person’s innate right to freedom and physical integrity, from which a number of rights flows such as the right not to be subjected to slavery and the right to bodily integrity6.

RIGHT TO EDUCATION Section 29 (1) (a) of the Constitution provides that everyone has a right to basic education, including adult basic education. REFERENCE TO THE RIGHTS TO PRIVACY, HUMAN DIGNITY AND EDUCATION: Taking a closer look at the rights provided for in the Constitution, it is clear that although the custom of ukuthwala may be considered and justified by others as being allowed practice resulting from some cultural groups, but it is forbidden under the Constitutional scrutiny as it violates not one but multiple rights of children and/or women who are being kidnapped in the name of culture. _____________________ 6. Iain Currie & Johan de Waal “The Bill of Rights Handbook” Pg. 251 para.3 and Pg. 252 para.1

FULL NAMES: ARNOLD BONANI MATIKO // STUDENT NUMBER: 5178-626-5 // MODULE NAME: RESEARCH LITERACY // MODULE CODE: SCL 1502 // UNIQUE NUMBER: 779205 // DUE DATE: 29TH MARCH 2016 ASSIGNMENT NO: 02 -------------------------------------------------------------------------------------------------

Ukuthwala goes against the intentions of the drafters of the Constitution as it was meant to ensure that all persons enjoy their family lives, sexual preference and home environment which in this case, all that is prevented from being realized by the abductions, rapes. Considering that human dignity is closely related to the rights to equality and freedom, it therefore impedes the rights of these women to be able to exercise their right to move freely within their community for fear of being kidnapped through ukuthwala wherein they lose not only their virginity but also their right to behave and/or act like children because after being abducted they now turned to being adults. In the full Bench of the Western Cape Division, ukuthwala was held as no defence to crimes of rape, human trafficking and assault with the intent to do grievous bodily harm7. This is an example of where the experience of a black girl sensitized judges to the harm that can be caused by a cultural practice. Ukuthwala is a classic example of overlapping forms of oppression on the grounds of age, race, gender and culture. There is a proven link between the lack of education, underdevelopment and poverty, Ukuthwala deprives girl-children opportunities to educate and develop. Their lack of education and underdevelopment due to Ukuthwala deepen their poverty and perpetuate the cycle of poverty. In virtually all child-marriage cases, the child is removed from school, dropping out of school deprives the child education opportunities. Since Ukuthwala undermines the girl-child’s access to educational opportunities, it indirectly undermines community development2. It is further submitted that in terms of the Sexual Offences Act8, having sex with a child in terms of our law is 1

considered as a crime and therefore, rapes as a result of abduction in terms of the Act a criminal offence9. It is therefore concluded that ukuthwala is a clear violation and it is inconsistent with the Constitution and therefore invalid.

2 3

_______________________ 7. Jezile v S and Others (WCC) (unreported case no 127/2014, 23-3-2015). 8. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Sexual Offences Act) 9. MJ Maluleke PER/PELJ 2012(15) 1

4

5

Language = 4 Footnotes = 3 Quality of Content = 4 Sources&References = 4 -----------------------------Total = 15 / 20 (75%)

RESULTS

COMMENTS

1 Your essay should be in Correct english. Spelling Grammar and Language are the key elements to a good essay. Paragraph and sentence construction should be as prescribed. A degree of effort is required You failed to include a Bibliography referencing all your sources

2 3 Your essay should reference various sources, when these sources are used, cited directly or

paraphrased they should be followed by a footnote or a reference. There is a specific format which needs to be followed. Once all citations have been referenced in the footnotes, it should be accompanied by a Bibliography

4 Your Essay needs to be your own individual thoughts on the research topic encompassing facts that you were able to extract from various and NOT limited sources. Your research should reflect the topic from various perspectives and citations

5 Students were required to consult and use at least one book, one journal article, one Act of parliament and one court case in their essay. For this section, marks should be awarded as indicated below follows: One mark per book used One mark per journal article used Two marks for an act of parliament used: One mark per court case used One mark for ANY additional source used (be it a third book, article, act or case)...