Initiation age row: exonerated chief gives his views
Legal to circumcise minors if they have parental consent, judge rules
Legal Aid lawyer Oyama Ngomana is pleased with his work in revealing a major oversight that is likely to turn around government’s efforts to regulate the age limit for boys to undergo initiation.
On Wednesday, Ngomana successfully argued that boys under 18 could undergo initiation.
The 27-year-old had fought for the acquittal of a chief, a father and a traditional surgeon who were accused of forging an initiate’s age in his registration papers.
Ngcobo magistrate Vathiswa Mkumbuzi on Wednesday ruled there could be no successful prosecution of those allowing circumcision of under-age boys if the boys had written parental consent.
Mkumbuzi acquitted AmaQwathi traditional leader and Luhewini Traditional Council head Nkosi Ndimphiwe Zwelihlangene Dalasile, 62, traditional surgeon Melikhaya Sangxana, 42, and parent Matate Dikana, 55, who were accused of contravening the Act which regulates the custom of ulwaluko by allowing the circumcision of Dikana’s 16year-old son, Anathi Dikana.
Before the judgment the misconception existed that only boys aged 18 and above — with no exceptions — could be allowed to undergo initiation.
Speaking to the Dispatch after the judgment, an excited Ngomana said his battle had not only been for his three clients, but for all those affected by the Act and the court outcome.
“I went all out for this case, and I am happy with the result and good interpretation of the law by the magistrate,” Ngomana said.
Much of the wording of the Eastern Cape Customary Male Initiation Act No 5 of 2016, which regulates the custom of ulwaluko, indicates that only boys aged 18 and above can be allowed to undergo circumcision.
However, Ngomana drew the attention of magistrate to a single paragraph containing only 38 words on page 267 of the Act.
Schedule 2 Annexure B paragraph 2 allows for boys under the age of 18 to undergo the rite if parental consent is obtained.
The magistrate concurred with Ngomana and acquitted all three accused.
That paragraph was not taken into consideration by government since the Act was signed by then Eastern Cape premier Phumulo Masualle on December 2 2016.
And boys over 18 years will not need parental consent for initiation, but they themselves will be able to consent in writing.
Dalasile is now free to lead his community once more.
“It [the case] has been a dark cloud over my head for almost two years.
“My colleagues were passing negative remarks as if I was a convicted criminal rather than a traditional leader leading a big community,” Dalasile said.
“This took too much of a strain on me. It was always traumatising and haunting me.
“I took a decision not to sign any form of permission for any boy to go to initiation schools even if that boy was 25.
“I am disappointed in the government that, at my elderly age and as a respected traditional leader, I had found myself in court for not breaking any law.
“It is the first time in SA to find a chief in court for issues of ulwaluko custom.
“If I were jailed I could have [been] stripped of my royal status.
“But I take my hat off to this young man, Mr Ngomana. He fought fearlessly and changed the misconception that Legal Aid lawyers always favour government,” Dalasile said with tears in his eyes.
Ngomana said no core goals of law were contradicted by Mkumbuzi; instead the magistrate revealed true facts of the law and prevented injustice towards the likes of Dalasile, Sangxana, Dikana and many others who found themselves in court for not contravening a law, but instead having acted within its prescripts.
“There was no reason to drag them to court because they have broken no law,” Ngomana said.
The three men were emotional after their acquittal.
Sangaxana said: “I am not only happy that we were acquitted, but that the case has greater impact on how many — including government — wrongly interpret this Act.
“We would not have been in court for almost two years if it were not for this general misinterpretation of the law.
“I have never been arrested and of the thousands of boys I have circumcised, not a single initiate died or was hospitalised.
“I had broken no law and the arrest had negatively affected my integrity. But I am happy that my name has been cleared. That [the case] was traumatising.”
The provincial government, the Eastern Cape House of Traditional Leaders and Contralesa welcomed the judgment and said they were working towards reviewing the Act.
They indicated there was no successful avenue to appeal the judgment.
Other communities who will celebrate the judgment are the Basotho and AmaHlubi, who have been saying that the Act is violating their ancient customary practices permitting the initiation of boys at 16.