Under customary law, virginity is not a requirement so the father claiming damages does not need to show that his daughter was a virgin. He only needs to show that the man he is suing had sex with his daughter without his permission. Even if the seducer offers to pay lobola he is still bound to pay damage/dhemeji/idhemeji before paying lobola.
Under general law, the rules are different. The woman must prove that she had sex with the man that she claims to have seduced her and that she was a virgin before having sex with him.If the man admits that he had sex with her, she wins her case. If the man denies having sex with her, then the woman must prove that sex took place.
How can she prove that they had sex?
She must show that there was penetration by the man using his penis into her vagina. She does not need to prove that the man ejaculated. She also does not need to show that the ejaculation resulted in the breaking of her hymen (taking away her virginity).
Is there need for corroboration?
Now don’t let that big word confuse anyone. Corroboration simply refers to the evidencethat supports a story. In seduction cases the courts can accept the testimony of one (1) competent and credible witness. A witness is competent if they are above 18 years of age and do not have a history of mental illness. Their credibility (whether the court can rely on their evidence as true) is assessed in each case, based on the strength of their testimony. Lying to the court is a crime. It is calledperjury and can result in 5 years in prison or Level 10 fine or both).
How can she prove she was a virgin?
A woman claiming seduction damages must also show that she was a virgin at the time that she had sex with the man who seduced her. How does one prove they WERE a virgin? The law says that once the woman proves that she had sex with the man and that she was a spinster (not yet married) then she is presumed to be a virgin.
The law also says the man can contest this by showing prior ’immoral’ conduct on the part of the woman. Immoral here means he can show that she had sexual relations with other people before him.
So are we saying once a woman says she was seduced, the man admits he had sex with her or she proves he had sex with her then that’s it, he is guilty?
Actually; no, there is more. A man can deny that he seduced the woman. He can do this if he can show that in fact the woman was the one who seduced him or if he can prove that she prostituted herself with him. It is not enough however for the man to say because he gave a woman gifts (car, house, clothes, money) and she then had sex with him that she prostituted herself. If the woman accepted the gifts or presents and the man cannot prove that she gave away her virginity in exchange for the gifts; he is still guilty of seducing her.
If the woman continues to stay or cohabit with the man in the full knowledge that the man is unable or unwilling to marry her then she cannot claim seduction damages after they break up. If however she continues to stay with a man believing that he will marry her, her action remains intact. She could actually claim seduction damages from him for breaking his promise to marry her.
Offering to marry the women suing for seduction damages is not a defence for the man being sued. The fact that the woman claiming seduction damages has had sex with other men after the man, who seduced her, is also not a defence for a man being sued for seduction.
How much can one get as seduction damages?
The amount differs depending on a number of factors;
- The age of the woman, the younger she is, the more the damages she is awarded
- The character of the woman; the more well behaved she is perceived to be, especially in customary law, the higher the damages.
- Whether pregnancy occurred- if the woman falls pregnant, the damages also increase
- The social standing of the parties; if the individual seduced comes from a popular family then the seduction damages can be higher.
- The number of times sex took place; the more times sex took place, the higher the damages.
- Whether there was a relationship of trust between girl and seducer e.g. teacher / pupil.
Our comment on this law
Question: Is having sex immoral behaviour?
Question: Does the mere existence of this law not limit women’s sexual rights by limiting how they choose to express their sexuality and by assuming that for as long as women are single they must remain virgins? Does being single mean that one should remain a virgin?We think this law has no place in modern society. If a man seduces a minor, below 18 years he should just be charged with statutory rape not pay her father. This is why child marriages are still happening because after he has paid he will now consider her his property.
If a man has sex with an adult, it is not the business of the law to interfere. This law seems premised in values that say women should not have sex and must be virgins when they marry, that their chances of marrying are reduced if they are no longer virgins. It reduces women’s control over their own bodies and sexuality, especially deciding when they should have sex and with whom. It makes women seem vulnerable as if they have no voice or choice on whether they want to have sex or not.