Should South Africa criminalise ukuthwala leading to child and forced marriages?

• Main Author: Mgidlana, Roberta Hlalisa
• Other Authors: Sloth-Nielsen, Julia
• Language: en
• Published: University of the Western Cape 2020
• Subjects: Abduction; Child marriage; Children’s rights; Cultural defence; Forced marriage; Girl child; Ukuthwala
• Online Access: http://hdl.handle.net/11394/7607

Magister Legum - LLM === Forced marriages and child marriages1 are a global and major concern when dealing with girl children’s and women’s rights. UNICEF statistics2 show that in South Africa alone 1% of girls were married by 15 years and 6% by 18 years.3While these numbers are insignificant, they arguably contribute to a global crisis where girls of primary school age are forced into marriage.4 This mini-thesis will focus on ukuthwala, a customary practice which is prevalent in the rural parts of South Africa, where girls and young women are married off. Moral reasons exist for the custom, however in recent years it has changed radically. Ukuthwala is most prevalent in the Eastern Cape and Kwa-Zulu Natal provinces.6 It has been described as a ‘romantic mock abduction’ of an unmarried woman by a man who intends to marry her.7 According to Bekker and Koyana8 the procedure for ukuthwala is as follows: ‘The intending bridegroom, with one or two friends, will waylay the intended bride in the neighbourhood of her own home, quite often late in the day, towards sunset or at early dusk, and they will “forcibly” take her to the young man’s home. Sometimes the girl is “caught” unawares, but in many instances, she is caught according to plan and agreement. In either case, she will put up a show of resistance to suggest to onlookers that it is all against her will when in fact, it is hardly ever so’. While ukuthwala involves kidnapping a girl or young woman, the intention is to compel her or her family to endorse marriage negotiations.9 This therefore means, by custom, the suitor should report the thwala to his kraal head in order to commence lobolo10 negotiations.11 During this time consensual sex with the young girl is forbidden. Koyana and Bekker further explain that the girl or young woman is immediately placed in the midst and care of the womenfolk; and is treated with ‘utmost kindness and respect’,12 until such time that the marriage requirements are met.