REPORT

PROJECT 138
THE PRACTICE OF UKUTHWALA

SEPTEMBER 2017

ISBN: 978-0-621-46355-2

© Copyright South African Law Reform Commission

Published: March 2022
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TO ADV TM MASUTHA, MINISTER OF JUSTICE AND CORRECTIONAL SERVICES

I am honoured to submit to you in terms of section 7(1) of the South African Law Reform Commission
Act, 1973 (Act 19 of 1973), for your consideration the Commission’s Report on the Practice of
Ukuthwala.

JUSTICE NARANDRAN (JODY) KOLLAPEN

CHAIRPERSON: SOUTH AFRICAN LAW REFORM COMMISSION

MAY 2018

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INTRODUCTION

The South African Law Reform Commission (SALRC) was established by the South African Law
Reform Commission Act, 1973 (Act 19 of 1973).

The members of the SALRC are –

The Honourable Mr Justice Narandran (Jody) Kollapen (Chairperson)

The Honourable Madam Justice Thina Siwendu
Professor Vinodh Jaichand
Mr Irvin Lawrence
Advocate Mahlape Sello
Professor Marita Carnelley
Professor Annet Oguttu

The Secretary of the SALRC is Mr Nelson Matibe. The Commission’s offices are at Spooral
Park Building, 2007 Lenchen Avenue South, Centurion. Correspondence should be addressed
to:
The Secretary
South African Law Reform Commission
Private Bag X668
Pretoria
0001

Telephone: (012) 622 6300

Fax: (012) 622 6362
E-mail: [email protected]
Website: http://www.salawreform.justice.gov.za

The project leader appointed for this investigation is Professor Thandabantu Nhlapo. The
researcher assigned to this investigation is Ms Maite Modiba.

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This report will be available on the commission’s Web site at:
http://www.salawreform.justice.gov.za once the report has been submitted to the Minister of
Justice and Correctional Services.

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 Contents

List of Sources .............................................................................................................................. vii

CHAPTER 1 ................................................................................................................................... 1
INTRODUCTION .......................................................................................................................... 1
CHAPTER 2 ................................................................................................................................... 9
THE CURRENT LEGAL POSITION ............................................................................................ 9
A Introduction .......................................................................................................................... 9
B The Constitution.................................................................................................................... 11
C International law ................................................................................................................... 14
CHAPTER 3 ................................................................................................................................. 30
UKUTHWALA AS A CUSTOM IN SOUTH AFRICA................................................................ 30
A Introduction ........................................................................................................................ 30
B Ukuthwala: concept and context ........................................................................................ 31
C Safeguards against abuse ................................................................................................... 37
D Ukuthwala in the context of “sanctioned customary options” versus harmful practices ... 37
CHAPTER 4 ................................................................................................................................. 39
UKUTHWALA IN SOUTH AFRICA: MAPPING THE TERRAIN ............................................ 39
A Introduction ........................................................................................................................ 39
B Varying views on ukuthwala ............................................................................................. 40
C Occurrence and prevalence of ukuthwala .......................................................................... 41
D Ukuthwala cases and incidents of note .............................................................................. 42
E Nature and scope of the problem ....................................................................................... 44
F Responses to the revival of the custom .............................................................................. 46
G Responses to the practice of ukuthwala ............................................................................. 48
CHAPTER 5 ................................................................................................................................. 51
LAW REFORM OPTIONS .......................................................................................................... 51
CHAPTER 6 ................................................................................................................................. 55
PUBLIC CONSULTATIONS ...................................................................................................... 55
A Introduction ........................................................................................................................ 55
B Views on Ukuthwala .......................................................................................................... 55
C Stakeholders’ views on possible interventions .................................................................. 58
D Submissions received on the draft Bill .............................................................................. 61

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ANNEXURE A ............................................................................................................................. 67
LIST OF PARICIPANTS AT THE ROUNDTABLE HELD IN PRETORIA ON 30
NOVEMBER 2009 ....................................................................................................................... 67
ANNEXURE B ............................................................................................................................. 69
NAMES OF RESPONDENTS TO THE DISCUSSION PAPER ................................................ 69
ANNEXURE C ............................................................................................................................. 70
NAMES OF RESPONDENTS TO THE REVISED DISCUSSION PAPER .............................. 70
ANNEXURE D ............................................................................................................................. 71
DRAFT PROHIBITION OF FORCED MARRIAGES AND REGULATION OF RELATED
MATTERS BILL .......................................................................................................................... 71

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List of Sources

Report of the South African Law Reform Commission

South African Law Reform Commission “Preliminary investigation into the Practice of
Ukuthwala” proposal paper June 2010
South African Law Reform Commission Discussion Paper 132: The Practice of Ukuthwala
(Project 138) September 2014
South African Law Reform Commission Revised Discussion Paper 138: The Practice of
Ukuthwala (Project 138) October 2015

Books
Bekker JC Seymour’s Customary Law in Southern Africa (1989)
Bekker JC, Rautenbach C & Goolam NMI Introduction to Legal Pluralism in South Africa 2 ed
(2006)

Bennett T.W Customary Law in South Africa (2004)

De Waal, Currie and Erasmus Bill of Rights Handbook (2001)

Doke C.M, Malcolm D.M, Sikakana J.M.A and Vilakazi B.W, English-Zulu/Zulu-English
Dictionary 2008: 811

Krige, E.J. The Social System of the Zulus Pietermaritzburg, Shuter & Shooter (1936)
Moletsane R “Culture, nostalgia, and sexuality education” in Mitchell, C, Strong-Wilson, T,
Pithouse, K and Allnutt, S. Memory and Pedagogy. New York & London: Routledge (2011)
Pauw, B.A. The Second Generation: A Study of the Family among Urbanized Bantu in East
London Cape Town, Oxford University Press (1963).
Snyman CR, in Criminal Law (2008)
Van Tromp Xhosa Law of Persons: A treatise on the legal principles of family relations among
the amaXhosa (1947)
Whitfield GMB South African Native Law 2 ed (1948)

Cases
Jezile v S and Others (A 127/2014) [2015] ZAWCHC 31
R v Sita 1954 (4) SA 20 (E)

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S v Mxhamli 1992 (2) SACR 704 (Tk)
S v L 1981 (1) SA 499 (B)
Gebeleiseni v Sakumani 1947 NAC (C&O) 105
Mkupeni v Nomungunya 1936 NAC (C&O) 77

Articles
Bennett TW “The cultural defence and the custom of thwala in South African law” (2010) 10
University of Botswana Law Journal 3
Capazorio B, Man ‘kidnapped, forced girl to marry him’ available at
http://www.iol.co.za/news/crime-courts/man-kidnapped-forced-girl-to-marry-him-
1.1227492#.UzFGK_mnolQ
Koyana DS and Bekker JC “The Indomitable Ukuthwala custom” De Jure 2007
Maluleke MJ “Culture, Tradition, Custom, Law and Gender Equality” 2012 PER 428
McQuoid Mason D “The Practice of “Ukuthwala”, the Constitution and the Criminal law (Sexual
Offences and Related Matters) Amendment Act” 2009 (3) Obiter 716
Mdumbe MF “Cultural Practice of ukuthwala: Critical Appraisal of the Legal Framework and
Options for Law Reform” – undated
Mqeke R “Report on the Legal Position” – undated (SALRC Advisory Committee, Project 138)
Mwambene, Lea and Sloth-Nielsen, Julia “Benign accommodation? Ukuthwala, ‘forced
marriage’ and the South African Children’s Act” Journal of Family Law and Practice 2011
(21) 5
Nhlapo T “Banning child and forced marriages is gaining traction in Africa” available at
http://theconversation.com/banning-child-and-forced-marriages-is-gaining-traction-in-
africa-53507
Sithole, M.P. “Zulu” in Ember, M., Ember, C.R. & Skoggard, I. (eds) Encyclopaedia of World
Cultures: Supplement New York Macmillan Reference USA (2002)
Oosthuyzen and Ngema “Ukuthwala: Structured for Relevance” 2010 Speculum Juris 84.

Legislation

Riotous Assemblies Act 17 of 1956

KwaZulu Act on the Code of Zulu Law No. 16 of 1985
Proclamation No. R151 of 1987, Natal Code of Zulu Law
Prevention of Family Violence Act 133 of 1993
Recognition of Customary Marriages Act 120 of 1998
Children’s Act 38 of 2005

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Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
Prevention and Combating of Trafficking in Persons Act 7 of 2013

Other Reports and Legislation

“An exploratory report on the interplay between African customary law and practices and
children’s protection rights in South Africa” Patricia Martin and Buyi Mbambo; study
commissioned by the Save the Children’s Regional Office in Southern Africa, 2011

United Nations Division for the Advancement of Women “Background Paper for the Expert
Group Meeting on Good Practices in Legislation to Address Harmful Traditional Practices
against Women” 10 June 2009 available at
http://www.un.org/womenwatch/daw/egm/vawlegislation_2009/Background%20paper%20EGM
%(10.06.09)%20FINAL.pdf

Report on the United Nations Children’s Fund “Early Marriage: A Harmful Traditional Practice, a
statistical exploration” available at
http://www.childinfo.org/files/childmarriageEarlyMarriageFinal.pdf

Forced marriage – a wrong not right Consultation paper on the criminalisation of forced
marriage published 01 September 2005 available at
www.scotland.gov.uk/Resource/Doc/1137/0079812.pdf

Forced Marriage (Civil Protection) Act 2007 Chapter 20 available at

www.legislation.gov.uk/ukpga/2007/20/pdfs/ukpga_20070020_en.pdf

Early marriage – a harmful traditional practice: a statistical exploration, 2005 UNICEF

Abduction for forced marriage – rights and remedies in Bangladesh and Pakistan by Sarah
Hossain

Report No. 205 of the Law Commission of India on Proposal to amend the Prohibition of Child
Marriage Act, 2006 and other Allied Laws, February 2008 available at:
http://lawcommissionofindia.nic.in/reports/report205.pdf

Waging war against criminal element of ukuthwala practice (unattributed report on Lusikisiki
convictions)

Report of a Roundtable held on 27 August 2009: “An Inconvenient Truth…is there a link
between Harmful Traditional Practices and Sexual Violence in South Africa” Centre for the
Study of Violence and Reconciliation (CSVR) – undated

Presentation on a Discussion Document on Ukuthwala/Tjhabisa Intombi: “Workshop on

Violation of Children’s Rights and the Practice of Ukuthwala” 23-24 August 2011 Department of
Cooperative Governance and Traditional Affairs

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Report on Workshop on the Violation of Children’s Rights through the abuse cultural practices of
ukuthwala, held at Kopanong Conference Centre, 10 October 2011

Draft White Paper on Ukuthwala and Related Sources of Marriage, Heinz Kuhn and Sithole
(Heinz Kuhn is Head: Legal Services, COGTA, KZN) – undated

Ukuthwala in KwaZulu-Natal: an investigation into State prevention and response, Commission

on Gender Equality – undated

Seminar on Ukuthwala Report: Ukuthwala and its impact on children, Eastern Cape (Public
Protector, SAHRC, CGE) 2009

The Conceptual Framework for an Ukuthwala Prevention Strategy targeting Traditional Leaders
within the Qaukeni Kingdom, Eastern Cape (Public Protector, SAHRC, CGE) – undated

Traditional Practices and the Constitution – a policy dialogue: Implications for Human Rights
and Gender Equality, KZN Legislature. Pietermaritzburg (CGE, Department of Social
Development, UNFPA) 04 November 2009

Public Hearings and Research on Ukuthwala: Views and Perspectives Emerging from the South
African Communities Report compiled by the Commission for the Promotion and Protection of
the Rights of Cultural, Religious and Linguistic Communities

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 CHAPTER 1

INTRODUCTION

1.1 The South African Law Reform Commission (the SALRC) received a request from the
Gender Directorate1 to include in its law reform programme an investigation into the practice of
ukuthwala. The Gender Directorate further requested that this investigation should receive
priority attention. Aspects to be considered included the following:
 the impact of ukuthwala on the girl-child;
 the appropriateness and adequacy of the current laws on ukuthwala, and whether or
not the laws uphold the human rights of the girl-child (taking into consideration the
principle of “the best interest of the child”).

1.2 It is evident from the motivation by the Gender Directorate in its request to the SALRC
that the request was prompted by the SABC and eTV evening television news coverage of 15
March 2009. These bulletins had included reports on the prevalence of “forced marriages” and
the “sale” of young girls into marriages with older men. The practice reportedly occurred mainly
in Eastern Pondoland in Lusikisiki, Flagstaff, Bizana and other areas in the Eastern Cape
Province. According to the Gender Directorate, the news coverage also revealed that:
 girls between the ages of 12 and 15 years are subjected to ukuthwala;
 such girls are at times forced to marry men who are HIV positive;
 about 89 girls from the areas mentioned above were hiding in Gauteng and
KwaZulu-Natal in fear of becoming victims of the practice;
 the practice of ukuthwala was defended as being a traditional cultural practice, with
adherents claiming that the tradition allows a man to abduct a woman whom he
wishes to marry, even if he has not proposed love; and
 such abductions mainly happen when young girls are on their way to school or are
fetching water or wood.

1
The Gender Directorate is part of the Department of Justice and Constitutional Development

1
1.3 The Gender Directorate also informed the SALRC that an imbizo in the Eastern Cape
was organised by the then Minister in the Presidency, the late Dr Manto Tshabalala-Msimang.
The meeting was attended by traditional leaders and members of communities affected by the
practice. It transpired that ukuthwala is still practised in that area and largely affects children
between 11 and 15 years from poor or child-headed families. The members of the community
complained that when law enforcement officials and traditional leaders are asked to intervene,
they refuse on the basis that ukuthwala is a cultural practice.

The Constitution of the Republic of South Africa, 1996

1.4 The Bill of Rights contained in Chapter 2 of the Constitution is the cornerstone of the
South African democracy. The Bill of Rights provides that everyone has a right to freedom and
security of a person, which includes the right not to be deprived of freedom arbitrarily or without
just cause, the right to be free from all forms of violence from either public or private sources,
the right not to be tortured in any way and the right not to be treated and punished in a cruel,
inhuman or degrading way2 as well as the right to basic education.3 It further affirms the
democratic values of human dignity4 and freedom of movement.5 It also specifically guarantees
the rights of children, which includes the right to be protected from maltreatment, neglect, abuse
or degradation, the right to be protected from exploitive labour practices, the right not to be
required to provide services that place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development.6

South Africa’s international obligations

1.5 The Discussion Paper on the Practice of Ukuthwala7 (hereinafter referred to as

Discussion Paper) and the Revised Discussion Paper on the Practice of Ukuthwala8 (hereinafter

2
Section 12.
3
Section 29.
4
Section 10.
5
Section 21.
6
Section 28.
7
South African Law Reform Commission Discussion Paper 132: The Practice of Ukuthwala (Project 138)
September 2014.
8
South African Law Reform Commission Revised Discussion Paper 138: The Practice of Ukuthwala (Project
138) October 2015.

2
referred to as the Revised Discussion Paper) gives a comprehensive overview of The
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage
(1962) as well as other international and regional instruments addressing the issues of forced
marriage and child marriage.9 The South African government has signed and/or ratified several
of these instruments. This has placed an obligation on the government to bring its domestic
laws and policies in line with the standards set by these instruments. Due consideration was
given to these instruments in the drafting of this Report.

Initiatives to combat distorted ukuthwala practice

1.6 In response to the phenomenon of distorted ukuthwala practice, various initiatives were
embarked on. There were various joint initiatives by government and other stakeholders, aimed
at completely eradicating the practice of ukuthwala, that have been implemented. Recent
developments in this line include:
 An imbizo in Lusikisiki on 24 March 2009 by the then Minister in the Presidency, Dr
Manto Tshabalala-Msimang, on girl child abductions, forced and early marriages. Dr
Tshabalala-Msimang stressed that it is a myth that if an HIV-positive man sleeps with
a young virgin he will be cured of the infection.
 A visit by the then Minister in the Presidency accompanied by other government
officials to Qaukeni Great Palace and Pharmaton Hostel, a place of refuge used by
girls escaping abductions. The then Minister in the Presidency addressed the
community on this issue on 6 April 2009.
 A pledge entered into with the Traditional Leaders in Flagstaff and Lusikisiki on 20
April 2009.10
 An announcement by King Sigcau during Dr Tshabalala-Msimang’s visit that he
would ban the practice of ukuthwala in Eastern Pondoland.
 A seminar on ukuthwala and its impact on women and children organised by the SA
Human Rights Commission in collaboration with the Commission for Gender Equality
(CGE), held on 17 August 2009 in Mthatha Garden Court.

9
See pages 37 to 39 of the Revised Discussion Paper.
10
Address by Dr Manto Tshabalala-Msimang to the National Gender Machinery, Commission on the Status of
Women, report-back meeting on 4 May 2009 available at
http://www.info.gov.za/speeches/2009/0905041351001.htm (accessed 11 May 2010).

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  A visit by the Minister of Women, Children and People with Disabilities, Ms
Noluthando Mayende-Sibiya to Qaukeni Great Palace in Lusikisiki on 26 June 2009.
 A call by the Minister of Police, Mr Nathi Mthethwa, to arrest mothers and fathers
who force a girl child to marry a man unknown to the child.
 In 2010 the Minister of Justice and Constitutional Development, Mr Jeff Radebe,
urged the National Prosecuting Authority to take a tough stand on forced
marriages.11
 Certain traditional leaders have been at the forefront, wanting to see criminal cases
prosecuted and accompanying Chapter 9 Institutions (such as CGE) to community
meetings.
 A police task force has been set up in Bergville District to investigate ukuthwala, after
a series of reported abductions there.
 Public campaigns and educational reports have raised the awareness among NGOs,
state actors and other bodies of cases of ukuthwala in “hot-spot” areas. For instance,
the Committee learnt of a report that listed the names of impending girl abductees,
who were said to be earmarked for kidnapping by men who hailed from Umzimkhulu
and were working in Johannesburg and due to return to their rural homes in
Ematsheni and St Paul for the holidays.
 In the Shembe church case, social workers from the Department of Social
Development obtained an order granted by a magistrate of the Children’s Court in
Maphumulo, authorising the removal of the child to a place of safety.
 KZN has an Ukuthwala Provincial Task Team which is coordinated by the Office on
the Rights of the Child (ORC). The establishment of the Task Team was
recommended by the Kwazulu-Natal Provincial Advisory Council for Children
(KPACC), which is provincial machinery that promotes respect for the rights of
children. Capacity building led by the Office of the Premier should be ongoing.
capacity building and awareness raising are already being conducted at Bergville,
Loskop, Zwelibomvu, Harding, Vulindlela and Jozini.

Prosecutions

1.7 The National Prosecuting Authority has prosecuted several cases of forced marriages
where ukuthwala was used as a defence.12 These cases were, however, prosecuted under

11
See Timeslive 3 May 2010 “Act on forced marriages, says Radebe” available at
http://www.timeslive.co.za/local/article431089.ece/Act-on-forced-marriages-says-Radebe (accessed 20 May 2010).

4
existing laws because our law did not provide for an offence of distorted ukuthwala at the stage
the offences were committed.

Thuthuzela Care Centres

1.8 The high levels of sexual violence against women and children, especially rape, are a
serious challenge to South Africa, in particular criminal justice system. The Thuthuzela Care
Centres (TCC) were established to deal with this challenge by improving the process of
reporting and prosecution of rape and other sexual related offences in a caring and dignified
environment.13 These centres seek to lessen the trauma of sexual violence and to reduce
secondary victimisation of survivors by providing professional medical care, counselling, access
to dedicated investigators and prosecutors. As victims of forced marriage and child marriage are
often subjected to sexual exploitation, they would be able to make use of the services provided
at the TCCs.

Conferences
1.9 Various conferences to raise awareness on ukuthwala were held in South Africa. These
includes an imbizo in Lusikisiki by the then Minister in the Presidency, Dr Manto Tshabalala-
Msimang, on girl child abductions, forced and early marriages on 24 March 2009, a visit by the
then Minister in the Presidency accompanied by other government officials to Qaukeni Great
Palace and Pharmaton Hostel, a place of refuge used by girls escaping abductions on 6 April
2009, a seminar on ukuthwala and its impact on women and children organised by the SA
Human Rights Commission in collaboration with the Commission for Gender Equality, held on
17 August 2009.

Origins of the investigation

1.10 The Commission’s investigations into trafficking in persons considered the issue of
forced marriage. However, given the scope of this investigation and the time the Commission
received a request to investigate the practice of ukuthwala, which was after this investigation
was completed, it would not have been possible to conduct a detailed research into the issue of
ukuthwala. The Commission subsequently decided to place on its programme a separate

12
For example, S v Jezile (Case number: SHM59/2011)
13
http://www.unicef.org/southafrica/hiv_aids_998.html (accessed on 26 May 2016).

5
investigation into the practice of ukuthwala. It also decided that this investigation should not be
limited to the practice of ukuthwala, but should consider forced marriage and child marriage
broadly. Consequently, a request for the inclusion of the investigation into the practice of
ukuthwala in the Commission’s research programme was submitted to the previous Minister of
Justice and Constitutional Development. The Minister approved the inclusion of the investigation
on 02 December 2010.

Consultation process

1.11 In accordance with the Commission’s policy of consulting as widely as possible, every
effort was made to publicise the investigation and to elicit responses from relevant stakeholders
as well as from members of the public.

1.12 On 30 November 2009 the Commission held a roundtable discussion on the practice of
ukuthwala with the aim to identify aspects relating to the practice of ukuthwala in need of a legal
reform. The roundtable also aimed to elicit comments and suggestions from relevant
stakeholders and to disseminate information on the practice of ukuthwala. The roundtable
meeting was attended by representatives from national, provincial and local government, non-
governmental organisations, academics and representative of professional bodies.14 The Centre
for Constitutional Rights, a unit in the FW De Klerk Foundation; the Women’s Legal Centre were
unable to attend the roundtable discussion, but made written submissions to the SARLC on the
practice of ukuthwala.

1.13 Based on the submissions received during the roundtable discussion and the information
available in the public domain, the Commission decided that there is no need to develop the
Issue Paper on this aspect. The Commission instead decided that the next stage is to develop a
Discussion Paper.

1.14 The roundtable discussion was followed by the publication of the Discussion Paper 132:
The practice of ukuthwala (Project 138), which set out the preliminary recommendation for law
reform relating to the practice of ukuthwala. The Discussion Paper was published on 01
September 2014. The Discussion Paper was distributed as widely as possible. As part of
consultative process on the Discussion Paper, the Commission held provincial meetings in

14
A list of participants is attached to this report as Annexure A.

6
order to provide an opportunity to interested parties to discuss the Commission’s preliminary
recommendations as set out in the Discussion Paper. Consultative meetings were held in
Pietermaritzburg on 27 November 2014, Thohoyandou on 04 December 2014, East London on
27 January 2015 and Pretoria on 29 January 2015. At these meetings, the Commission’s
preliminary proposals for law reform were discussed with reference to extensive worksheets
compiled for this purpose.15 Attendees were divided into three groups to discuss each issue,
complete the worksheets and present their feedback afterwards. Worksheets were also posted
on we SALRC’s website and distributed via e-mail to various stakeholders. In addition to
proposals made at these consultative meetings, the Commission received several written
submissions. The closing date for submissions on the Discussion Paper was 31 December
2014. A list of names of respondents to the Discussion Paper is enclosed as Annexure B.

1.15 After receiving comments and responses on the Discussion Paper, the SALRC decided
to publish the Revised Discussion Paper, which includes a chapter on public consultations and
a Draft Bill. The Revised Discussion Paper 138: The practice of ukuthwala (Project 138 was
published on 30 October 2015 and was distributed as widely as possible. As part of consultative
process on the Revised Discussion Paper, the Commission held provincial meetings in order to
provide an opportunity to interested parties to discuss the Commission’s preliminary
recommendations as set out in the Revised Discussion Paper. Consultative meetings were held
in KwaZulu Natal on 28 January 2016, Eastern Cape on 04 February 2016, Limpopo on 11
February 2016, Mpumalanga on 18 February 2016, Free State on 25 February 2016 and
Pretoria on 03 March 2016. At these meetings, the Commission’s preliminary proposals for law
reform were discussed with more emphasis to the draft Bill. Attendees were divided into three
groups to discuss the draft Bill and present their feedback afterwards. In addition to proposals
made at these consultative meetings, the Commission received several written submissions.
The closing date for submissions on the Revised Discussion Paper was 31 January 2016. A list
of names of respondents to the Revised Discussion Paper is enclosed as Annexure C.

1.16 This Report was tabled for discussion and approval at the Commission meeting held on
16 September 2017.

15
The worksheets related to the following aspects: enactment of new legislation, amendment of existing
legislation, and creation of non-legislative measures.

7
Purpose of this Report

1.17 Submissions received on the Discussion Paper and Revised Discussion Paper have
formed the basis for the Report on the practice of ukuthwala and informed the solutions
identified by the Commission. The purpose of the Report is to set out the Commission’s final
recommendation for law reform relating to the practice of ukuthwala. The Report is
accompanied by a draft Bill enclosed as Annexure D.

8
 CHAPTER 2

THE CURRENT LEGAL POSITION

A Introduction

2.1 South Africa has signed and/or ratified various international and regional instruments
that condemn forced and child marriage. Some of the current versions of the practice of
ukuthwala are challenged because they countenance, justify or sanction violence against
women and girl children. South Africa has an obligation under international human rights law to
ensure that all marriages, including customary marriages, are entered into with the free and full
consent of the intending spouses; to ensure that harmful cultural and social practices prejudicial
to the health, development, normal growth, welfare and dignity of children are abolished; and
that harmful cultural practices affecting the rights of women are eliminated.16

2.2 The customary practice of ukuthwala has many names.17 It should be stated from the
outset that not all forms of ukuthwala are objectionable or run contrary to a community’s
perception of justice or the legal convictions of society, and therefore not all forms are

16This inference is based on an assessment of numerous international conventions to which South Africa has either
acceded or has ratified. The Department of International Relations and Cooperation has confirmed in an email to the
SALRC researcher that South Africa signed the Convention on Consent to Marriage, Minimum Age for Marriage
(1962) on 1962 12 10; South Africa acceded on 1993 01 29 and the convention entered into force on 1993 04 02.
The Covenant on Economic, Social and Cultural Rights (1966) was signed on 1966 12 16 and South Africa became
a signatory on 1994 10 03, but since then nothing further has happened (i.e. accession or ratification). The
Convention on the Elimination of All Forms of Discrimination Against Women (1979) was signed on 1979 12 18
and South Africa became a signatory on 1993 01 29, and the convention was ratified on 1995 12 15.

17 A study by the Department of Cooperative Governance and Traditional Affairs showed that the practice is not
confined to the Nguni-speaking nations of the Eastern Cape and KwaZulu-Natal, as initially assumed; variants of it
are found among most indigenous communities in South Africa. See “Draft Discussion Document on Ukuthwala in
South Africa” compiled by the Department of Cooperative Governance and Traditional Affairs, at 9.

9
unlawful.18 Where a young woman who has attained the minimum age for marriage (as
prescribed in the Recognition of Customary Marriages Act19) agrees to ukuthwala by her lover
and she is not subjected to any form of duress, the conduct of her boyfriend would be lawful. 20

2.3 It seems clear, from the newspaper reports and anecdotes about women and young girls
who have been threatened with or affected by this practice, that what is impugned and found
distasteful are those forms of ukuthwala that affect girl children or involve coercion. There is
consensus that ukuthwala itself is not marriage but a prelude to marriage. However, this
distinction becomes tenuous in circumstances where a person is abducted despite her bona fide
resistance; where ilobolo (however negligible) is paid; and where the abducted person is forced
to perform the chores of an umakoti (young bride). In these circumstances, ukuthwala would be
tantamount to a “forced marriage”. And if the victim is a child below the age of 18, it would
amount to a “child marriage”.

2.4 The question to be asked is whether the current legal framework provides adequate
protection from and redress against those forms of ukuthwala (or corollaries of it) alluded to in
the preceding paragraph. The assessment prompted by this question will hopefully shed light on
the following issues:
 Whether there is a need for new legislation to combat the harmful effects of
distortions carried in the name of ukuthwala;

18 CR Snyman, in Criminal Law (2008) at 98, puts forward a strong argument that giving meaning to this concept
requires a human rights-centered approach. Snyman writes: “The contents of the Bill in Chapter 2 of the
Constitution must play an important role in deciding whether conduct is in conflict with public policy or the
community’s perception of justice and therefore unlawful. The values reflected in the Constitution such as ‘human
dignity’, the achievement of equality and the advancement of human rights, and freedoms are of crucial
importance.” This view is consistent with the approach advocated by Chief Justice Ngcobo in Bhe v Magistrate,
Khayelitsha 2005 (1) SA 580 (CC) para 148, where the judge stated “Our Constitution recognises indigenous law as
part of our law. Thus s 211(3) enjoins courts to ‘apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary law’. The Constitution accords it the same
status that other laws enjoy under it. In addition, courts are required to develop indigenous law so as to bring it in
line with the rights in the Bills of Rights. While in the past indigenous law was seen through the common-law lens,
it must now be seen as part of our law and must be considered on its own terms and ‘not through the prism of the
common law’ (at 163). As with all laws, indigenous law now derives its force from the Constitution. Its validity
must now be determined by reference not to common law but to the Constitution.
19 120 of 1998. This aspect is discussed in detail below.

20
This would be the case if the woman concerned, prior to being abducted, gives her consent voluntarily and
without coercion, and understands the elements of the practice and appreciates its consequences. For a discussion of
consent as a ground of justification in criminal offences, see Snyman Criminal Law (2008) 123-129.

10
  What form such law should take (for example criminal offence, civil legislation, or
amendments to existing legislation); and
 How the provisions of such a law might be formulated.

B The Constitution

(a) General

2.5 As stated earlier, ukuthwala is unlawful if it is contrary to the community’s perception of

justice or the legal convictions of society. The Bill of Rights in chapter 2 of the Constitution plays
an important role in deciding whether conduct is contrary to public policy or the community’s
sense of justice and is therefore unlawful. The values reflected in the Constitution – such as
human dignity, the achievement of equality, and the advancement of human rights and
freedoms – are crucial in deciding this issue. It is therefore imperative to review the practice of
ukuthwala and all its consequences, in particular forced marriages and child marriages and the
violence which has come to characterise this practice, in light of the Constitution as the supreme
law of the Republic.21

(b) Balancing competing rights

2.6 On the one hand, the Constitution recognises that South Africa is not a homogenous
society. The Constitution guarantees persons who belong to a cultural community the right to
enjoy their culture22 and the right to participate in the cultural life of their choice.23 However,

21 Section 2 of the Constitution unequivocally states that Constitution is the supreme law of the Republic, and that
any law or conduct inconsistent with it is invalid and that the obligations imposed by it must be fulfilled. See for
example the then Justice Ngcobo’s minority decision in Bhe and other v Magistrate Khayelitsha and Others 2005
(1) SA 580 (CC) para 148, in which the judge emphasised that today, customary law enjoys the same status as
other laws and that it derives its force from the Constitution. He added that the validity of the rules of customary
law must be determined not with reference to the common law but to the Constitution.

22 Section 31 of the Constitution reads:

(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other
members of that community-
(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain a cultural, religious or linguistic associations and other organs of civil
society

11
neither of these rights may be exercised in a manner that is inconsistent with any provision of
the Bill of Rights.

2.7 In relation to girl children, the Constitution considers everyone below the age of 18 years
to be a child, and accords to this category of persons (with a few exceptions) the same rights as
those granted to adults.24 Some of these rights are:

 The right to equality,25 which must be read in conjunction with the Promotion of
Equality and Prevention of Unfair Discrimination Act.26 This Act prohibits, among
other things, customary practices that impair the dignity of women and undermine
the dignity and wellbeing of girl children; the Act also prohibits sexual harassment.
 The right to human dignity.27
 The right to freedom and security of the person, which includes the right to be free
from all forms of violence.28
 The right to education.29
 The rights of children in section 28, which include the right to be protected from
maltreatment, neglect, abuse and degradation; and the right not to be required or
permitted to perform work or to provide services that are inappropriate for a person
of that child’s age, or which would place at risk the child’s wellbeing, education,
physical or mental health or spiritual, moral or social development. Furthermore and
most importantly, the Constitution enjoins everyone to take into account the child’s

(2) The rights in subsection (1) may not be exercised in a manner inconsistent with the any provision of the Bill
of Rights.

23
Section 30 of the Constitution provides that:
Everyone has the right to use the language and to participate in the cultural life of their choice, but no one
exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

24 De Waal, Currie and Erasmus Bill of Rights Handbook (2001) 456.

25
This relates to equality before the law, equal protection and benefit of the law. The violation arises from the fact
that the abducted girls are often forced to leave school and made to enter into arranged marriages. In this way, they
are treated differently from boys of their age.
26 Act 4 of 2000.

27
This arises from the fact that the victims of ukuthwala are often expected to submit to sexual acts with older men.
28
This section covers a wide range of violations; see the discussion in McQuoid Mason in 2009 Obiter
29
This arises from the fact that the young victims are often forced to leave school at an early age.

12
 best interests in every matter involving a child.30 The Children’s Act elaborates what
the principle of the “best interests of the child” entails, by providing (for example) that
in matters concerning a child, the following factors must be taken into account: the
child’s age, maturity and stage of development; and the need to protect the child
from any physical or psychological harm.31

(c) Evaluation of the practice in the light of constitutional provisions

2.8 The right to enjoy one’s culture has been thrown into competition with other rights and
inevitably this has led to conflict. The Constitution gives no indication whether other rights
supersede cultural rights; the fundamental rights are not ranked.32 The SALRC has considered
the interplay between individual rights and group rights in the Constitution, particularly with
regard to children, and concluded that:

There can be no doubt that the South African Constitution recognises the
importance of customary law to the majority of South Africans. The
Commission also accepts the importance of customary law and practices for
a very large portion of our population. However, the Commission notes that
customary law is recognised as a system of law provided it operates within
the broad principles of the Constitution of 1996. Given the fact that the best
interest of the child principle in section 28 is paramount and the individualistic
nature of human rights protection, it would seem that the right of an individual
child supersedes that of cultural or religious group.33

2.9 The question therefore is whether ukuthwala as it is currently practised is at odds with
any rights of the girl child as contained in the Constitution. Second, if it is found that the practice
violates the rights of the girl child, the question arises whether such a violation is justifiable in
terms of section 36 of the Constitution.34 Undoubtedly, the direct consequences of the abuses of

30 Section 28(2) of the Constitution.

31
See section 7 of the Children’s Act 38 of 2005.
32 TW Bennett Human Rights and African Customary Law (1995) 28.
33
Report of the South African Law Reform Commission on the Review of the Child Care Act (Project 110),
December 2002 at 283.
34
Section 36(1) of the Constitution provides that the rights in the Bill of Rights may only be limited in terms of the
law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all relevant factors including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;

13
the ukuthwala custom, namely forced marriages, child marriages, violence against women and
young girls, and a girl’s dropping out from school constitute gross violations of the rights of
women and girl children (referred to above). These violations can in no way be justified. The
constitutional recognition of cultural diversity should not be used as an excuse for or to sanction
the violation of the rights and liberties of women and children.

C International law

2.11 Obligations of the state under international law are as follows:

 Article 16(2) of the Universal Declaration of Human Rights (1948) declares that
marriage shall be entered into only with the free and full consent of the intending
spouses.
 The Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriage (1962) prohibits marriages that are not entered into with the
full and free consent of both parties, and requires that such consent should be
expressed by the prospective spouses in person. This Convention obliges state
parties to take legislative action to specify the minimum age for marriage.
Furthermore, it states that no marriage should be entered into by any person below
the minimum age, except where a competent authority has granted a dispensation
on age, in the interests of the intending spouses and for serious reasons.35
 In 1954, the United Nations General Assembly adopted a resolution calling on all
states to abolish customs and practices that are inconsistent with the Universal
Declaration of Human Rights, by ensuring complete freedom in the choice of spouse,
by eliminating completely child marriages and the betrothal of young girls before the
age of puberty, and by establishing appropriate penalties where necessary.36

(c) the nature and extent of the limitation;

(d) the relationship between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

35
Articles 1 and 2 of the Convention of Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages.

36 Quoted in the Preamble to the Convention on Consent to Marriage, Minimum Age for Marriage and Registration
of Marriages, available at http://www.unhcr.org/refworld/pdfid/456d89064.pdf (accessed 11 May 2010).

14
  The International Covenant on Economic, Social and Cultural Rights (1966) states in
article 10(2) that marriage must be entered into with the full and free consent of the
intending spouses. In its General Comment 14, the Committee on Economic, Social
and Cultural Rights noted that states are under a specific legal obligation to adopt
effective and appropriate measures to abolish harmful traditional practices affecting
the health of children, particularly girls, including early marriage.
 Article 16(1)(a) of the Convention on the Elimination of All Forms of Discrimination
Against Women (1979) is particularly relevant as it calls upon state parties to take all
appropriate measures to eliminate discrimination against women in all matters
relating to marriage and family relations; and in particular to ensure, on the basis of
equality between men and women, that men and women have the same right to
choose a spouse and to enter into a marriage with free and full consent. Article 16(2)
provides that the marriage of a child shall have no legal effect and that all necessary
action, including legislation, shall be taken to specify the minimum age for marriage.
 The Committee on the Elimination of Discrimination Against Women recommends
that state parties take effective legal measures, including penal sanctions, civil
remedies and compensatory provisions, to protect women against all forms of
violence.
 The Convention on the Rights of the Child (1989) requires state parties to take
effective and appropriate measures to abolish traditional practices prejudicial to the
health of children. The Committee on the Rights of a Child urges state parties to
develop and implement legislation aimed at changing the prevailing attitudes and
addressing gender roles and stereotypes that contribute to harmful traditional
practices so as to protect adolescents from all harmful traditional practices, such as
early marriage. The same committee also urged state parties to increase the
minimum age for marriage, with or without consent, to 18 years for both girls and
boys.

2.12 In 2008, the Special Court for Sierra Leone recognised forced marriages as a crime
against humanity under international law. In The Prosecutor vs Alex Tamba Brima the Appeals
Chamber defined forced marriage as follows:

… a situation in which the perpetrator through his words or conduct, or those

of someone for whose actions he is responsible, compels a person by force,

15
 threats of force or coercion to serve as a conjugal partner resulting in severe
suffering, or physical or psychological injury to the victim.37

2.13 The international legal framework sketched above has been augmented by regional
legal framework. In the African continent, the following instruments are particularly important:38

 The African Charter on the Rights and Welfare of the Child (1990), which obliges all
state parties to take all necessary appropriate measures to eliminate harmful social
and cultural practices affecting the welfare, dignity, normal growth and development
of the child, as well as to prohibit child marriage through legislation and take action to
specify the minimum of marriage as 18 years.
 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa (2003) requires state parties to take all necessary legislative and
other measures to eliminate all forms of harmful practices which negatively affect
human rights of women. The Protocol also requires state parties to enact appropriate
national legislative measure to guarantee that no marriage takes place without the
consent of both parties, and that the minimum age of marriage for women is 18
years.
 The African Youth Charter (2006) also requires state parties to take all appropriate
steps to eliminate harmful social and cultural practices that affect the dignity and
welfare of youth.

2.14 South Africa has a duty to ensure that customary practices which result in forced
marriages and child marriages are abolished, and that laws are put in place to ensure access to
justice for victims of these practices. Failure to do so is likely to be interpreted as a dereliction of
the obligation imposed on South Africa by these international human rights instruments.

37 The Prosecutor of the Special Court v. Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (the
AFRC accused) (Sentencing Judgment), SCSL-2004-16-T, Special Court for Sierra Leone, 19 July 2007. Available
at: http://www.unhcr.org/refworld/category,LEGAL,SCSL,467fba742,0.html.
38
These conventions have been ratified by South Africa. See http://www.dfa.gov.za/foreign/multilateral1123.rtf
(accessed 11 May 2010).

16
Guiding principles for legislation on violence against women

2.15 The United Nations has developed guidelines which can be used by state parties to
assess the development and implementation of legislation aimed at eradicating violence against
women and girl children. Countries are urged to adopt a comprehensive human rights-based
legislative approach to all forms of violence against women, which would encompass not only
criminalisation and the effective punishment of perpetrators, but also the prevention of violence;
the empowerment, support and protection of survivors; and the creation of mechanisms to
ensure effective implementation of legislation.39 The UN has also recommended that:
 Comprehensive legislation on harmful practices be enacted, either as stand-alone
legislation or within a set of more comprehensive legislation on violence against
women;

 Legislation should mandate training for religious, customary, community and tribal
leaders so as to promote human rights and denounce violence against women,
including harmful practices;
 Legislation should mandate training for health officials and teachers;
 Legislation should provide for effective sanctions against anyone who condones or
participates in “harmful practices”, including persons listed above;
 Legislation should define “forced marriage” as any marriage entered into without the
free and full consent of both parties;
 Legislation should set the minimum age for marriage as 18 for both males and
females, should prohibit marriage before the age of 18;
 Legislation should define “child marriage” as any marriage entered into before the
age of 18;
 Legislation should create a specific offence of forced marriage;
 Legislation should create a specific offence of child marriage;
 Legislation should criminalise the conduct of people involved in arranging or
contracting towards a forced marriage or child marriage;
 Legislation should mandate that appropriate and specialised shelter services be
available for victims or survivors of harmful practices;

39 United Nations Report of the Expert Group Meeting on Good Practices in Legislation on Harmful Practices
Against Women 26-29 May 2009 at 5. Available at
http://www.un.org/womenwatch/daw/egm/vaw_legislation_2009/Final%20report%20EGMGPLVAW.pdf.

17
  Legislation should not allow the perpetrator to escape punishment through reaching
an agreement with the family of the victim or survivor and providing them with
payment;
 Legislation should require the creation and enforcement of a system of registration
for birth, marriage, divorce and death, which would encompass customary marriage.

D Domestic law

(a) What is the law on customary marriages in South Africa?

(i) General

2.16 In the Republic, customary marriages are regulated by national legislation that was
enacted after the advent of constitutional dispensation, and by laws promulgated by the former
Transkei, Bophuthatswana and Ciskei, and by KwaZulu and Natal.40 Whether or not the
marriage laws enacted by these self-governing territories and independent states should
continue to exist, despite the coming into operation of the Recognition of Customary Marriages
Act, is an issue beyond the scope of this investigation; the SALRC does not wish to express any
view in that regard.41 The Children’s Act, to the extent that it deals with the marriages entered
into by children, will also be considered here. There are serious gaps in the legislation,
particularly in national legislation, which could exacerbate the abuse of ukuthwala. The various
laws listed in this paragraph are considered below.

40 These legislative enactments emanating from the erstwhile TBVC states and former homelands are recognised by
the Constitution. Item 2(1) and (2) of Schedule 6 of the Constitution provide that all law in force when the
Constitution took effect continues in force until amended or repealed by a competent legislative body. In addition, it
stipulates that these laws do not have a wider application, territorially or otherwise, than they had when the 1993
Constitution took effect.

41
The SALRC, in its Report on the Review of the Marriage Act 25 of 1961 (Project 109 published May 2001),
concurred with the Department of Home Affairs, and recommended the repeal of the marriage laws of
Bophuthatswana, Ciskei and Transkei. The Department of Home Affairs recently published the draft Marriage
Amendment Bill of 2009 (Notice 149 of 2009, Government Gazette 31864 of 13 February 2009). This Bill, if
enacted, will give effect to the recommendations of the SALRC. The Codes have been repealed but the repealing
provision has not yet come into operation.

18
(ii) Recognition of Customary Marriages Act

2.17 In view of the fact that ukuthwala is a prelude to a customary marriage and should
eventually lead to such a marriage, the essentials of a valid customary marriage as set out in
the Recognition of Customary Marriages Act must be complied with.

Age and consent requirements

2.18 This Act clearly states that the parties to a customary marriage must be older than 18
years, and that they must both consent to the proposed customary marriage.42 Furthermore, this
Act contains a number of provisions aimed at making it possible for people under the age of 18
(that is, people below the minimum age set by this Act) to conclude a valid customary marriage.
It draws a distinction between “minors” and persons below the age of 18. It states that if either of
the prospective spouses is a “minor”, both of his or her parents – or if he or she has no parents
then his or her legal guardian – must consent to the marriage. If the consent of the parents or
guardian cannot be obtained, section 25 of the Marriage Act applies.43 This section of the
Marriage Act provides that the commissioner of child welfare may grant consent after an inquiry
as to whether the marriage would be in the interest of the minor; and that if the parent, legal
guardian or the commission refuse to give consent, the minor may approach the judge of the
High Court. A marriage entered into contrary to these provisions is voidable.44 The parent or

42
Section 3(1) of the Recognition of Customary Marriages Act provides that:
For a customary marriage entered into after the commencement of this Act to be valid –
(a) the prospective spouses
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law.

43
Section 3(3)(a) and (b) of the Recognition of Customary Marriages Act reads:
(a) If either of the prospective spouses is a minor, both his or her parents, or if he or she has no parents, his or
her legal guardian, must consent to the marriage.
(b) If the consent of the parent of legal guardian cannot be obtained …

44Section 3(5) of the Recognition of Customary Marriages Act incorporates by reference the provisions of section
24A of the Marriage Act of 1961. Section 24A of the Marriage Act provides as follows:
24A Consequences and dissolution of marriage for want of consent of parents or guardian
(1) Notwithstanding anything to the contrary contained in any law or the common law a marriage between
persons of whom one or both are minors shall not be void merely because the parents or guardian of the
minor, or a commissioner of child welfare whose consent is by law required for the entering into of a
marriage, did not consent to the marriage, but may be dissolved by a competent court on the ground of want
of consent if application for the dissolution of the marriage is made-
(a) by a parent or guardian of the minor before he attains majority and within six weeks of the date on
which the parent or guardian becomes aware of the existence of the marriage; or
(b) by the minor before he attains majority or within three months thereafter.

19
guardian may approach the court before the minor attains majority and within six weeks of the
date that the parent (or guardian) becomes aware of the existence of the marriage; or the minor
herself can approach the court before she turns 18 years or within three months thereafter.

2.19 The provisions relating to persons under the age of 18 are couched differently. They
authorise the Minister of Home Affairs or a person authorised by him or her to grant permission
to a person under the age of 18 to marry, if such a marriage is desirable and in the interest of
the prospective spouses.45 This power may also be exercised ex post facto.46 However, these
provisions do not relieve the person who seeks Ministerial consent of the duty to additionally
obtain consent from the parent or guardian.47

Registration and determination of age

2.20 In addition to the requirement of consent, the Recognition of Customary Marriages Act
contains a number of safeguards aimed at ensuring that the parties to customary marriages
comply with the essentials set out in the Act. It states that the age of majority is determined by
statute law and not by customary law;48 requires customary marriages to be registered, although
failure to register a marriage does not affect its validity;49 stipulates that in the case of a minor,
the marriage officer may accept a birth certificate, identity document, or sworn statement as
proof of that person’s age;50 and states that if there is uncertainty with regard to the age of a
person who is a minor, the registering officer may submit the matter to the magistrate’s court,
which must then establish the age of the person concerned.51

(2) A court shall not grant an application in terms of subsection (1) unless it is satisfied that the dissolution
of the marriage is in the interest of the minor or minors.

45
Section 3(4)(a) of the Recognition of Customary Marriages Act.
46
Section 3(4)(c) of the Recognition of Customary Marriages Act
47
Section 3(4)(b) provides that: “Such permission shall not relieve the parties to the proposed marriage from the
obligation to comply with all the requirements prescribed by law.”
48
Section 9 of this Act is outdated, because it provides as follows: “Despite the rules of customary law, the age of
majority of any person is determined in accordance with the Age of Majority Act, 1972 (Act 57 of 1972).” This has
been changed by the Children’s Act 38 of 2005, which sets the age of majority at 18.
49
Section 4(2) of the Customary Marriages Act requires customary marriages entered into before 15 December
2000, a date on which that Act came into operation, to be registered within twelve months. In respect of marriages
entered into after the commencement of the Act, it requires that they be registered within three months.
50
Section 5(1) of the Customary Marriages Act.
51 Section 5(2) of the Customary Marriages Act.

20
Evaluation

2.21 First, it is noteworthy that this Act does not proscribe the marriage of people who have
not attained majority. However, it complies with international instruments that require the
minimum age for marriage to be set at 18 years for both men and women. Furthermore, the Act
deals with the processes, arrangements or mechanisms that precede a customary marriage,
and understandably does not render non-compliance with its provisions a criminal offence. The
provisions regarding minimum age are rendered nugatory by other provisions, which are
discussed below.

2.22 Second, it is not clear why the legislature differentiates between “minors” and “persons
who are under the age of 18 years”. It is significant that the involvement of the functionary of the
State, namely the Minister or his or her delegate, is only required in respect of the latter
category of persons, and the functionary may grant approval if the marriage is “desirable and in
the interest of the parties”. Section 3(3)(a) of this Act is therefore conspicuous for not
incorporating these requirements.

2.23 Third, the use of the term “minor” in this Act is problematic. It will be remembered that
this is a common-law concept. Under common law, the minimum age at which a valid marriage
can be concluded by a minor is 14 years for boys and 12 years for girls.52 This gender-based
discrepancy in the minimum age for marriage for boys and girls, which emanates from the use
of the word “minor” in this Act, is inconsistent with the right to equality enshrined in the
Constitution. Assuming that the interpretation of the term “minor” shown here is correct, this
provision is inconsistent with the provisions of the Criminal Law (Sexual Offences) Amendment
Act, which imply that the age of sexual consent in the Republic is 16.53 It seems therefore that

52
See JD Sinclair The Law of Marriage Volume 1 (1996) 366.
53
This inference is drawn from the provisions of section 15 and 16 of the Criminal Law (Sexual Offences and
Related Matters) Act 32 of 2007, read in conjunction with section 1(1)(b) which provides that a “child” in relation to
these sections means a person 12 years or older but under the age of 16 years. Sections 15 and 16 of this Act read as
follows:
15 Acts of consensual sexual penetration with certain children (statutory rape)
(1) A person ('A') who commits an act of sexual penetration with a child ('B') is, despite the consent of B to
the commission of such an act, guilty of the offence of having committed an act of consensual sexual
penetration with a child.
(2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in
writing by the National Director of Public Prosecutions if both A and B were children at the time of the
alleged commission of the offence: Provided that, in the event that the National Director of Public

21
there is a need to align this Act with the provisions of the Criminal Law (Sexual Offences)
Amendment Act.

(iii) Children’s Act54

2.24 The Children’s Act states that a “child” is anyone below the age of 18; and that in all
matters affecting a child, the child’s best interests and his or her involvement in decision-making
are of paramount importance.55

Cultural practices

2.25 First, this Act makes it clear that children should not be subjected to social, cultural and
religious practices which are detrimental to their wellbeing.56 However, non-compliance with this
provision does not attract criminal liability. Second, it provides that a child below the minimum
age set by law for a valid marriage may not be given out in marriage or engagement; and that a
child above minimum age may not be given out in marriage or engagement without his or her
consent.57 Failure to adhere to this prohibition constitutes a criminal offence punishable by a fine
or 10 years’ imprisonment, or both, in the case of a first offender; and 20 years’ imprisonment in
the case of a second offender.58

Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening
subsection (1).
(b) The National Director of Public Prosecutions may not delegate his or her power to decide whether a
prosecution in terms of this section should be instituted or not.
16 Acts of consensual sexual violation with certain children (statutory sexual assault)
(1) A person ('A') who commits an act of sexual violation with a child ('B') is, despite the consent of B to
the commission of such an act, guilty of the offence of having committed an act of consensual sexual
violation with a child.
(2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in
writing by the relevant Director of Public Prosecutions if both A and B were children at the time of the
alleged commission of the offence: Provided that, in the event that the Director of Public Prosecutions
concerned authorises the institution of a prosecution, both A and B must be charged with contravening
subsection (1).
(b) The Director of Public Prosecutions concerned may not delegate his or her power to decide whether a
prosecution in terms of this section should be instituted or not.
54
The Children’s Act 38 0f 2005 (Children’s Act).
55
Sections 9 and 10 of the Children’s Act.
56
Section 12(1) of the Children’s Act.
57 Section 12(2)(a) and (b) of the Children’s Act.
58
Section 305(1)(a),(6) and (7) of the Children’s Act.

22
Care and protection of children, and trafficking in children

2.26 This Act makes provision for the removal of a child who has been exploited,59 or who
lives in circumstances which may seriously harm that child’s physical, social and mental
wellbeing, to a place of safety.60 It also prohibits the trafficking61 of children by anybody or any
institution, including parents.62 This Acts places an obligation on frontline officials who come into
contact with a child who is a victim of trafficking to report the matter to a social worker for
investigation.63

Evaluation

2.27 As stated above, section 12(1) of this Act makes provision for the right of children not to
be subjected to cultural practices that detrimentally affect their wellbeing. It does not create a
criminal offence but is a mere prohibition; however, it could lead to delictual liability.

2.28 Section 12(2)(a) prohibits giving out a child in marriage. A child who has been subjected
to ukuthwala practice is not in any conventional sense of the word given out.64 These provisions
of the Children’s Act which were aimed at preventing forced marriages and child marriages have
been rendered nugatory by the lack of specificity. The legislature, in an effort to ensure that

59
Section 1(1) provides as follows:
exploitation, in relation to a child, includes-
(a) all forms slavery or practices similar to slavery including debt bondage or forced marriage;
(b) sexual exploitation;
(c) servitude;
(d) forced labour or services;
(e) child labour prohibited in terms of section 141; and
(f) the removal of body parts
60
Section 150(1)(e) and (f) of the Children’s Act.
61 Trafficking is widely defined to mean
(a) means recruitment, sale, supply, transportation, transfer, harbouring, or receipt of children, within
or across the borders of the Republic –
(i) by any means, including the use of threat, force, other forms of coercion, abduction, fraud,
deception, abuse of power, or the giving or receiving of payments or benefits to achieve the consent of a
person having control of a child;
(ii) due to a position of vulnerability,
for the purpose of exploitation…
62
Sections 284 and 287.
63
Section 288.
64Lea Mwambene and Julia Sloth-Nielsen “Benign Accommodation? Ukuthwala, forced marriage and the South
African Children’s Act” 20.

23
these provisions applied to all statutes regulating marriages in the Republic, decided not to
specify the “minimum age” of marriage, which would have made it impossible for young children
to contract a valid customary marriage even with their own consent or consent from their
parents. In the context of customary marriage, the provisions of the Children’s Act referred to
above should be interpreted to mean that a girl below the age of 12 years and a boy below the
age of 14 cannot conclude a marriage at all; and that a girl above the age of 12 and a boy
above the age of 14 should, in addition to the approval of a marriage by their parents, also
consent to the proposed customary marriage. It has been argued above that a child is incapable
of making an informed decision about the marriage partner or about the implications of marriage
itself, and that the child’s consent or consent granted on his or her behalf by adults should not
be considered valid consent. The Children’s Act effectively prohibits the customary marriage of
a girl child below the age of 12 years, but sanctions the marriage of a girl child older than 12 but
younger than 18 years, provided she consents. This provision is problematic as it does not
contemporaneously require the involvement of an official of the state; nor does it require that
such a marriage should be allowed if it would be in the interest of the girl child.

(iv) The Codes of Zulu Law

Consent requirements

2.29 In KwaZulu-Natal, the KwaZulu Act on the Code of Zulu Law65 and Natal Code of Zulu
Law66 (the Codes) are still in force, and regulate customary and cognate unions.67 In terms of
the Codes, the consent of the father or guardian of the intended wife is necessary if the wife is a
minor.68 However, it is also imperative for the intended wife, irrespective of her age, to make a
public declaration during the wedding ceremony that she is getting married of her own free will
and consent.69

65
KwaZulu Act on the Code of Zulu Law No 16 of 1985.
66
Proclamation R151 1987, Natal Code of Zulu Law.
67
Although the Codes have been repealed by section 53 of the KwaZulu-Natal Traditional Leadership and
Governance Act 5 of 2005, the repeal has not yet come into force and the provisions of the Codes are therefore still
in force.
68
In terms of section 14 of the Codes, a person attained majority at the age of 21.
69
The relevant sections of the Codes read as follows:
38(1) The essentials of a customary marriage shall be-

24
2.30 The Codes require the official witness to publicly ask the intended wife, at the wedding
ceremony, whether of her free will and consent she is about to enter into a customary marriage
with the intended husband. Should the woman decline to announce her consent, declare her
dissent, or otherwise appear to be unwilling to proceed with the intended marriage, the official
must immediately stop the proceedings, and if necessary take the woman into his or her
protection and report the matter to the Commissioner or Magistrate.70 Furthermore, the intended
marriage may be annulled by the court because of lack of consent.71

2.31 The Codes require all customary marriages to be registered. However, failure to register
a customary marriage does not affect its validity. 72

Forced marriage a criminal offence

2.32 Most importantly, the Codes make it a criminal offence for any family head or any person
to coerce or attempt to coerce any girl or woman to enter into a marriage or cognate union
against her will, to celebrate or permit the celebration of a customary marriage in the absence of
an official witness, or to celebrate a marriage that the official witness has stopped. Any
misconduct or breach of duty by the official witness is also criminalised.73

Evaluation

2.33 The Codes are the only statutory enactments which expressly make it an offence to
coerce a person into a marriage, and which require a public declaration by the intended wife
that she is entering into a marriage freely and with her consent. However, the protection
afforded by the Codes is limited to women and young girls residing in the Province of KwaZulu-
Natal. The Codes do not address the plight of women and young girls threatened with
ukuthwala in the rest of the Republic. In addition, the Codes have been repealed and these
protective measures will cease to exist even in Kwa-Zulu Natal when the repeal takes effect.

(a) The consent of the father or guardian of the intended wife, if she is a minor, which consent may not be
withheld unreasonably.
(c) a declaration in public by the intended wife to the official witness at the celebration of the marriage that
the marriage is of her own free will and with her consent. [NB: In section 38(1)(a) of the KwaZulu Act on
the Code of Zulu Law, the words “if she is a minor” have been omitted.]
70
Section 42 of the Codes.
71
Section 49(c) of the Codes.
72
Section 45 of the Codes.
73
Section 116(1)(a) and (b) and section 116(2) of the Codes.

25
(v) Transkei Marriage Act

2.34 This statute is outdated and does not contribute much to the issues under consideration,
except that it requires the consent to a customary marriage of every party who has attained the
age of 21 years, or the consent of the father or guardian of the party to such marriage if he or
she has not attained the age of 21 years, for the marriage to be valid.74

(b) Protection afforded by criminal law

(i) Common law and statutory offences

2.35 In addition to the offences referred to above, and depending on the circumstances of
each case and the age of the victim, people involved in the planning and execution of ukuthwala
where the consent of the intended bride is lacking could possibly be prosecuted for offences
such as the following: being an accomplice to rape;75 common law abduction;76 kidnapping;77
assault;78 rape;79 statutory rape;80 compelling or causing a person 18 years or older to witness a
sexual offence, or compelling or causing a person 18 years or older to witness a sexual act;81

74 Section 31(a) and (b) of the Transkei Marriage Act 21 of 1978.

75
It seems that the common-law offence of being an accomplice to rape was not repealed by the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007. For a discussion of this offence, see CR
Snyman Criminal Law (2002) 446.
76
In S v L 1981 (1) SA 499 (B) the court explained that this crime involves the removal of an unmarried minor from
the control of his or her parents or guardian and without the consent of such parents or guardian, with the intention
that the person concerned or someone else may marry or have sexual intercourse with that minor. This offence is
committed against the parent or guardian and not against the minor, and the latter’s consent to the acts of the
wrongdoer is no defence.
77
Which consists of depriving a person of his or her freedom of movement; and if such a person is a child, depriving
the custodians of their control over the child.
78Which involves applying force to the person of another, or inspiring belief in another person that force is going to
be applied.
79
Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 provides that:
“Any person (A) who unlawfully and intentionally commits an act of sexual penetration with a complainant (B),
without the consent of B, is guilty of the offence of rape.”
80
Where the act of sexual penetration involved a person 12 years or older but under the age of 16 years. See section
15 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
81
Section 8(1) and (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.

26
sexual exploitation of a child;82 and conspiring and inducing another person to commit an
offence.83 This list is by no means exhaustive.

(ii) Cultural defence and the practice of ukuthwala

2.36 Prior to 1994, the courts considered marriages entered into without the consent of the
woman to be contrary to public policy and repugnant to natural justice.84 Where a woman was
subjected to ukuthwala without her consent, the ensuing customary union was considered void
ab initio as a result of the lack of consent.85 In addition to the civil remedy of nullity, the courts
made it clear that the custom of ukuthwala was not a defence to the common law offence of
abduction; and that the custom would not be a defence to rape if it is proven (in a particular
case) that the girl bona fide resisted intercourse.86 In other words, the cultural defence was not
recognised.

2.37 The Constitution has drastically improved the position of customary law in South African
law.87 It recognises indigenous law as part of our law. Indeed, section 211(3) instructs the courts
to apply customary law when that law is applicable, subject to the Constitution and any

82
Section 17 Criminal Law (Sexual Offences and Related Matters) Amendment Act.
83
Section 18(2) of the Riotous Assemblies 17 of 1956 provides as follows:
Any person who-
(a) conspires with any other person to aid or procure the commission of or to commit; or
(b) incites, instigates, commands, or procures, any other person to commit,
Any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and
liable on conviction to the punishment to which a person convicted of actually committing that offence would be
liable.

84
Nzimande v Sibeko 1948 NAC 21 (C) 22-23.
85
Gebeleiseni v Sakumani 106. A more recent case was reported in the media where a man was convicted of 6
counts, including 3 of rape, for abducting a 14-year-old girl without her consent or her mother’s consent, The Times
28 January 2014 “‘Ukuthwala’ Reckoning” by Shanaaz Eggington
86
See R v Sita 22-23. In S v Mxhamli the court held that observing the limitations imposed by the custom could be a
mitigating factor to the crime of abduction. In this case the appellant, a 25-year-old man, was convicted of abducting
a 16-year-old schoolgirl in contravention of section 115 of the Transkeian Penal Code 9 of 1983, which codified the
common-law offence of abduction. He was sentenced to four months. He appealed against the prison sentence on the
basis that he was merely following the culture of ukuthwala and that the prison sentence was therefore inappropriate.
The court observed that the practice of ukuthwala is open to a suitor, someone who has at the very least made his
desire to marry a girl known to her (or her guardian), but in this case there were no prior overtures to the girl or her
guardian, and because he seduced the girl he had acted outside the parameters of the custom. The court added that if
he had followed the practice as expounded by custom, it would have been a strongly mitigating factor. The court
confirmed the appellant’s conviction.
87
For a general discussion on the impact of the Constitution on customary law, see para 148 of Ngcoco CJ’s
decision in Bhe v Magistrate, Khayelitsha referred to above.

27
legislation that specifically deals with customary law. The Constitution accords customary law
the same status that other laws of the Republic enjoy. It also requires the courts to develop
indigenous law in line with the rights in the Bill of Rights.88

2.38 Although the status of customary law has been ameliorated and the relationship
between it and the common law has been settled, its relationship with criminal law is yet to be
explored, particularly the cultural defence.89 This defence allows adherents of a particular
culture to argue that they should be completely acquitted of criminal charges, or their
blameworthiness at least be mitigated, on the ground that their cultural norms were the reason
for committing the crime.90 The accused person invoking this defence would need to show,
among other things, that his or her conduct conforms to the requirements of the culture. With
regard to ukuthwala, the problem is that there seems to be no consensus on all the elements of
the practice.

(c) Protection provided by civil law

2.39 Some of the civil measures available to people affected by abuses of ukuthwala have
been referred to in the preceding paragraphs, such as a decree of nullity and the removal of a
child subjected to exploitation to a place of safe care. The Promotion of Equality and Prevention
of Unfair Discrimination Act91 and the civil remedies contained therein merit discussion. This
legislation applies to the State and all persons. This Act prohibits discrimination92 emanating
from any traditional or customary practice which impairs the dignity of women and undermines
equality between men and women, including practices which undermine the dignity and

88
See also footnote 30.
89
TW Bennett “The cultural defence and the custom of thwala in South African law” University of Botswana Law
Journal June 2010 3-4.
90
TW Bennett at 4.
91 Act 4 of 2000.
92
This concept is widely referred to in this Act and is defined as follows:
any act or omission, including policy, law, rule, practice, condition or situation which directly or indirectly
(a) imposes burdens, obligations or disadvantage on; or
(b) withholds benefits, opportunities, or advantages from,
any person on one or more grounds.

28
wellbeing of girl children. The Act also proscribes conduct which limits women’s access to
education (among other things).93

2.40 The prohibitions contained in this Act are justiciable. Proceedings may be instituted in
the equality court by any person, a person acting on behalf of another person, a person acting in
the interest of a class or group of persons, a person acting in the public interest, the South
African Human Rights Commission, or the Commission for Gender Equality.94 The court has
wide powers and may make an appropriate order including an interim order, a declaratory order,
an order for the payment of damages, an order restraining unfair discriminatory practices, and
an order directing the clerk of the court to refer the matter to the Director of Public Prosecutions
for possible institution of criminal proceedings.95

93
Section 8(d) and (g) of the Act.
94
Section 20(1)(a)-(f).
95
Section 21

29
 CHAPTER 3

UKUTHWALA AS A CUSTOM IN SOUTH AFRICA

A Introduction

3.1 Traditionally, in indigenous African communities a marriage was initiated through a

request or approach from the family of the prospective groom to the family of the woman.
Ideally, such an approach would follow a period of courtship between the intended spouses, and
the ensuing negotiations would thus occur with the full consent of the couple. Occasionally, the
talks between the families were conducted without the knowledge of one or both of the
youngsters, with consent being obtained after the fact of parental agreement. Due to the
strongly pro-marriage and pro-natalist values of these societies, even irregular forms of entering
into the married state were countenanced, and avenues were created to regularise various
forms of marriage initiation which might have been initially flawed.

3.2 In its original form, ukuthwala was one of the “irregular” approaches observed
predominantly by the Nguni-speaking groups.96 The practice has been vividly described by
Koyana and Bekker as follows:

The intending bridegroom, with one or two friends, will waylay the intended
bride in the neighbourhood of her home, quite 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

96
However, there is documented evidence of its existence among Sotho-speaking communities, as well as among
the Venda and Tsonga peoples.

30
 show of resistance to suggest to onlookers that it is all against her will when,
in fact, it is hardly ever so.97

3.3 Although the above description is useful to an extent, taken out of context it may create
confusion as to whether ukuthwala is a crime or a social practice that is acceptable in
communities. This confusion is compounded by the fact that many writers refer to ukuthwala as
a custom or a cultural practice, thus downplaying the subjective circumstances that lead to its
occurrence. This paper begins by clarifying this issue, highlighting the extent to which the
practice is sanctioned by custom and the extent to which it is prone to abuse. Important issues
include the age of girls affected, and the nature of the practice – specifically whether it involves
human rights violations.

B Ukuthwala: concept and context

3.4 Ukuthwala98 as described above involves the act of taking a marriage partner in
unconventional ways, seemingly forceful ways, sometimes with the sanction of certain adults
who have a stake in the possibility of formalising a resulting partnership. It is practised among
indigenous African communities in Southern Africa, in various mutations, within the context of
many other customary practices related to marriage. Many of these practices are aimed at
satisfying the traditional standards or norms relating to marriage, and sometimes accommodate
unconventional ways of doing so. Although often referred to as custom, tradition or even culture,
ukuthwala can actually be seen as a strategy to counter the influence of extreme authority. The
overbearing preferences of people who hold traditional or cultural power and control over the
lives of young men and women seeking to establish conjugal relationships may, therefore, be
linked to some instances of ukuthwala. Popular references to ukuthwala as “culture” thus unduly
create an impression that the practice is a rigid and formalistic prescript, whereas it was
originally devised as an optional “safety valve” against too extreme a parental authority.

97
Koyana DS and Bekker JC “The Indomitable Ukuthwala custom” 2007 De Jure 139-144.
98
Also called shobedisa in Sesotho; ukweba umakoti in isiNdebele; ukuthwala in isiXhosa; ukuthwala in isiZulu;
tjhabisa in sePedi; tlhakisa or tlhaka in Xitsonga/Shangaan; and taha or tahisa in Tshivenda

31
3.5 A dictionary definition of ukuthwala describes it as “[to] carry on head or shoulders or
load gripping by the hands”.99 This is the basic meaning of the word “-thwala”. Other definitions
are more figurative and may include a mention of “pregnancy” and “carrying a bride home”. One
aspect of ukuthwala includes the concept of taking a partner in unconventional ways; in this
sense, the term indicates a breaking of standard practice in initiating a relationship, where such
practice would usually include formalising a relationship between the families of the lovers. Even
before formal engagement (ukuganiselana) occurs, in African indigenous families the
acceptance of love is seen as a public matter, with such publicity endorsing the choices made
by the lovers and attracting the endorsement of the families involved. If the lovers or their
families change their minds, or if the desired endorsement by one’s family is lacking, a “drastic
plan” must be devised and may involve one or both of the lovers. This plan may be drastic in its
response to parental authority, but traditionally it did not involve culturally offensive behaviour
such as rape, violence, or criminal abduction. It allowed people to side-step a particular set of
circumstances created by parental disapproval or other pressing personal circumstances.

3.6 Mwambene and Sloth-Nielsen (2011,) define ukuthwala in this way:

The word ukuthwala means ‘to carry’.... It is culturally legitimated abduction of

the woman whereby, preliminary to a customary marriage, ... a young man
will forcibly take a girl to his home... . Some authors have described
ukuthwala as the act of ‘stealing the bride’... . Ukuthwala has also been taken
as a mock abduction or irregular proposal ... aimed at achieving a customary
marriage... . From these definitions we see that ukuthwala is in itself not a
customary marriage or an engagement. The main aim of ukuthwala is to force
the girl’s family to enter into negotiations for the conclusion of a customary
marriage. (Emphasis in original.)

3.7 Bennett (2010) describes ukuthwala as one of the unconventional methods of “opening
marriage negotiations”. He discusses it together with ukubaleka, which is when a woman goes
to a man’s home and in so doing “forces” him to “take” (accept) her, thus eliciting payment of
lobolo to her family.100 Bennett (2010, p 7) argues that:

99
In Doke C.M, Malcolm D.M, Sikakana J.M.A and Vilakazi B.W, English-Zulu/Zulu-English Dictionary 2008:
811
100
In fact Krige (1936) sees ukuthwala as a form of forced ukubaleka. She argues: “There is a form of forced
ukubaleka, known as ukuThwala which takes place sometimes when an engaged girl breaks her contract” (p.125).
Krige, E.J. (1936) The Social System of the Zulus Pietermaritzburg, Shuter & Shooter

32
 Thwala is more common irregular mode. It generally takes the form of a mock
abduction whereby a suitor and his friends ‘kidnap’ the girl and carry her off to
his homestead.... The suitor need not himself participate, since the event
might be organised by his friends or even by the girl’s guardian.... The
‘kidnapping’ party would wait until early evening, when the girl could be
waylaid and taken off to the suitor’s homestead. She might be caught
unawares, or she herself might be in on the plot. In either event, she would
be expected to put up a show of resistance, for to acquiesce willingly would
be to show a lack of maidenly pride.

3.8 In a special focus page in The Daily News (4 December 2013 p 10), Nomagugu
Ngobese, the head of the Nomkhubulwane Culture and Youth Development Organisation, is
cited as describing ukuthwala as a plot staged by a young couple to force the girl’s parents to
accept lobolo from the boyfriend, whom the girl loves but her parents do not like. In this sense it
is collusion between people who desire each other or are already in a relationship and wish to
formalise it despite resistance from their families. Such definitions are important in assessing
whether ukuthwala is sufficiently covered in legislation in a manner which limits the abuse of
human rights but allows communities to practise what is not at odds with human rights.

3.9 Mwambene and Sloth-Nielsen (2011) raise the question of whether statutes such as the
Children’s Act sufficiently protect the girl child, and whether they empower legal practitioners
sufficiently to protect the girl child against the abuse of ukuthwala. The authors make several
observations, including a comment on the language of the Children’s Act, which in section
12(2)(a) and (b) discusses the “giving out” of a child to marriage without that child’s consent.
Mwambene and Sloth-Nielsen debate whether this phrasing aligns with the concept of
ukuthwala, which emphasises the “taking of girls” (whether by force or collusion). There are
other issues around definitions; for example, how to assess whether ukuthwala is a custom that
is not detrimental to the child (as envisaged by section 12(1) of the Children’s Act), which would
require a definition of age and an understanding of what ukuthwala is. The fact that the practice
varies and depends on circumstances raises the question of how to identify the basic elements
that would constitute “detriment” (see Chapter 4 of this paper for further detail on this point).

3.10 In summary, the practice of ukuthwala was traditionally resorted to most often in one or
more of the following circumstances, which occasionally overlapped:
1) to circumvent an arranged marriage;

33
 2) to circumvent parental opposition to the match (which may or may not be based on
the fact that the girl has been promised to someone else in marriage);
3) to “fast-track” marriage negotiations where timing is an issue (such as when the girl
is pregnant);
4) to force the hand of the parents if a boy (the prospective husband) is too poor to
afford lobolo;
5) to speed up marriage negotiations in response to peer pressure on either the girl or
the boy to get married (with such pressure usually affecting girls more than boys);
6) to speed up the process of an arranged marriage; or a marriage desired by at least
one set of parents, in which case ukuthwala takes place with parental collusion.

3.11 It is important to emphasise that ukuthwala is circumstantial, and certain cases involve
more violation than others. Various authors101 have identified at least four possible scenarios in
which ukuthwala has been used as a solution:
1) The girl is aware of the plot and colludes with her lover;
2) Families agree on the (potential) marriage, with or without the girl’s knowledge;102
3) The girl would not have given her consent, but the ukuthwala pressures her and her
family into consenting;
4) Ukuthwala as a solution for men or women who have remained unmarried for a long
time.103

3.12 Whatever the circumstances that led to ukuthwala, the act of a man carrying a woman
was used to initiate discussions between the families. Certain behaviour would have been
deemed culturally offensive. Bennett (2010 p 7) argues that –

The custom of thwala did not contemplate sexual intercourse, at least not
until the girl’s status as a bride had been duly fixed. Traditionally, as soon as
she arrived at the suitor’s homestead, she would have been placed under the
care of the women in his family. If the suitor were to have sex with her, he
would be required to pay seduction damages in addition to the lobola cattle....

3.13 In the final analysis of the concept, is important to make the following observations:

101
See for example Van Tromp Xhosa Law of Persons: A treatise on the legal principles of family relations among
the amaXhosa 1947; Mwambene & Sloth Nielsen, 2011; Kuhn and Sithole [undated]; Bennett 2010.
102
Ukuthwala kobulawu in isiXhosa by Van Tromp Xhosa Law of Persons: A treatise on the legal principles of
family relations among the amaXhosa (1947).
103
See Kuhn and Sithole in their discussion of taha and tahisa in Tshivenda.

34
  Ukuthwala is not a formal procedure towards marriage but an option that may be
used to solve the problematic circumstances of lovers (and in some cases, certain
family members), where social expectations are at odds with the lovers’ own wishes.
 Ukuthwala may enable a solution and facilitate social negotiations, and it does not
necessarily involve culturally and socially offensive behaviour such as violence or
rape.
 It is a customarily accepted way to shift the focus of social authorities, families in
particular, to accommodate the wishes and preferences (sometimes including a
change of heart) of individual men and women in the establishment of relationships.
 Ukuthwala is thus a ploy to negotiate social relationships within prescribed values; in
the new South Africa these values include human rights and socio-cultural norms
and standards.
 As a practice, it does not silence families and community authorities in objecting to
human rights violations.

3.14 Notwithstanding the logic of ukuthwala in its proper context, it is clear that there is abuse
of this practice. In large measure the context has changed; few, if any, communities still exist in
which a commitment to a relationship is a public matter. Studies in local communities in
southern Africa during the last few decades have shown that community members are mobile
and that young people attend school. No research evidence has suggested that love affairs are
a public matter within a localised setting, as was the case before (see, for example, the
discussion by authors such as Pauw104 and Sithole105 and on social change over time).106
Therefore questions must be raised as to whether – even in its properly conceived logic –
ukuthwala is still relevant. More pressing is the need to deal with abuse of the custom.
Measures to curb such abuse and deal decisively with people who violate others’ human rights
in the name of culture must be devised. It is against this background that the current project has
developed.

104
Pauw 1963
105
Sithole 2002
106
Change has been taking place holistically and over time, linked to changes in economic systems; see Pauw, B.A.
(1963) The Second Generation: A Study of the Family among Urbanized Bantu in East London Cape Town, Oxford
University Press. See also Sithole, M.P. (2002) “Zulu” in Ember, M., Ember, C.R. & Skoggard, I. (eds)
Encyclopaedia of World Cultures: Supplement New York Macmillan Reference USA.

35
3.15 The law must empower society and the state to deal with human rights violations. The
discussion above has highlighted the following considerations, which are tabled here as part of
the enquiry to identify the best way to deal with human rights violations related to ukuthwala:
 Should ukuthwala be abolished, because the context in which it was applicable is
virtually extinct? Such abolition would mean that people who abuse the practice in
the name of tradition – but in fact devoid of context – could be challenged without
ambiguity. However, it might be difficult to dictate that the custom is entirely
irrelevant for all communities and individuals.
 Should current policies and statutes (e.g. the Recognition of Customary Marriages
Act)107 be amended to spell out culturally sanctioned options such as ukuthwala?
This runs the risk of codifying and thus legalising “customary options”, which were
never as formal, into law and rendering them normative, even if social trends indicate
that they are actually phasing out.
 Should the law provide basic human rights prescripts that must be observed by all
processes and procedures relating to marriage?

3.16 If possible, the law reform process should insert provisions into statutes that regulate
specific matters, such as marriages, stipulating that customary processes must not violate
human rights. This would obviate the need to explicitly legalise practices such as ukuthwala.
Such provisions would not prevent societies from practising those customs and would not brand
cultural traditions as barbaric but would prevent people from abusing those customs. The
inserted provisions should, where possible, make mention of relevant customary practices
without working them into the statutes as normative procedures.

107
Recognition of Customary Marriages Act 120 of 1998. This Act defines “customary marriage” as a marriage
concluded in accordance with the customs and usages traditionally observed among indigenous African peoples of
South Africa, and which forms part of the culture of those people.

36
C Safeguards against abuse

3.17 According to Bennett (2004), safeguards were in place to ensure that the custom was
not abused.108 The safeguards were as follows:

 The people who effected ukuthwala, particularly the family of the intended groom,
were required to inform the guardian or father of the girl on the day she was
abducted, or early the following day, that she was with them. They were also
required to indicate what amount in cattle they proposed to pay, and by when.
 It was contrary to customary law for a man to have sexual intercourse with a girl who
had been “abducted”.
 The suitor was required to report his actions to his family head, who would then give
the girl over to the care of the women of the family, and would inform the girl’s
guardian of the matter.

3.18 These parameters, which were ostensibly aimed at protecting women, were often
transgressed. As stated above, in extreme cases rape, violence and other forms of coercion
have been used to force women to agree to marriages or unions with men they did not know or
love.

D Ukuthwala in the context of “sanctioned customary

options” versus harmful practices

3.19 The challenge with the history of acculturation is that some elements of sanctioned
customary options have been deemed essential and have been elevated to the level of
“culture”, as if they regulated society. Ukuthwala must be viewed as one such social concept.
Certain traditional practices would not, if neglected or not performed, lead communities to
lament their absence. Such practices were often simply circumstantial variations performed by
individuals who were trying to negotiate their preferences. Thus it sounds odd when strong
suggestions are made proposing that ukuthwala be inserted into legislation, as was once

TW Bennet “Customary Law in South Africa” (2004) 212. See also JC Bekker “Seymour’s Customary Law in
108

Southern Africa” (1989) 98.

37
attempted in KwaZulu Natal (in the Draft White Paper on Ukuthwala and Related Practices). Yet
it seems that mention of such options must be made, in a bid to regulate their potential abuse
under the guise of “culture”.

3.20 There are several customs that could be placed in a category of “questionable
codification”, both culturally and legally. These are as follows:
1) Customs that were exercised as options by individuals, negotiated within
the context of socially acceptable standards.
2) Customs that were traditionally practised but indicate the overbearing
authority of society over individuals.
3) Customs that are viewed by communities as cultural practices which are
basically harmful to individuals and at odds with human rights.

3.21 It is important to paint this larger context, because these types of customs are
sometimes framed as cultural stipulations that are quite formal, when in fact they have always
included elements of option and choice. Ukuthwala falls within the first category of these
practices. The table below categorises the three dimensions listed above, which are actually
continuums – namely personal choice, social authority, and human rights infringement.

Custom-sanctioned Customs that favour the Harmful practices (socially

practices that favour the authority of elders and frowned upon; some
preference of individuals family extinct)
 Ukuthwala  Arranged marriages  Genital mutilation
 Ukubaleka  Human trafficking
 Ukungena
 Ukugcagca
 Isithembu

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 CHAPTER 4

UKUTHWALA IN SOUTH AFRICA:

MAPPING THE TERRAIN

A Introduction

4.1 The practice of ukuthwala has come under intense scrutiny through a growing number of
revelations that young girls have contracted HIV after being forced into marriage. South Africa
prides itself on having a progressive Constitution, a document that is often quoted in contexts
ranging from legal debates to radio talk shows. Our Constitution is indeed lauded by many
countries, and is often referred to as one of the best constitutions in the world. An important
reason for this is its inclusivity in promoting and protecting the rights of individuals and
communities, including (for communities especially) the right to freedom of culture, religion and
language. It is a Constitution strong on human rights protection. However, in reality and at a
micro-community level, in many cases the observance of human rights is weak. Ukuthwala has
received increased media coverage, which has led, on the one hand, to intense organising by
people who believe that human rights abuses are evident in the practice; on the other hand, the
practice is defended by groups who claim that the practice is a cultural right. The practice is
widely contested and is viewed as a symbolic practice by some, as a custom by others, and as
a human rights violation by still others.

4.2 The African Business magazine (November 2011)109, reporting on the Mo Ibrahim Index
on governance in Africa, notes that while this indicator yielded important information on the year
preceding its publication, it was disappointing that human rights continue to be violated on the
continent. Although Index scores had testified to good economic growth, the neglect of human
rights in 37 of the 53 countries in the African continent was noted. Women’s rights were among

109
No. 380, November 2011 edition

39
the rights that, relative to economic growth within the continent, were deteriorating. In South
Africa, the social and economic value of women and girls is clear and has been reported in a
number of gender machinery documents. Despite this, social justice advocates have expressed
concern about society’s lack of recognition of the fact that ukuthwala violates human rights.
These concerns cannot be ignored. The unbecoming behaviour of abductors, as demonstrated
in the evidence below, clearly points to the abuses that women have experienced. As long ago
as 1926, Westermarck stated that bride abductions are global, and more recently Thompson
(1993) reported the same thing. Research has shown that such practices are not unique to
Africa; for example, similar practices exist in Tierra del Fuego among both the Yaghans and the
Onas. In South Africa, new cases are reported frequently.

4.3 The effects of the practice on women are reported to have a lasting impact, even into old
age, with the experience having left many women scarred and self-doubting for life.110

B Varying views on ukuthwala

4.4 Ukuthwala is regarded by its opponents as amounting to the abuse of women. This
assertion stems from reported cases of abductions and kidnappings of women and girl children
in the name of ukuthwala. According to empirical evidence and as reported by the Commission
on Gender Equality, abduction and kidnapping incidents are often accompanied by violent
sexual abuse. Women’s rights advocates are of the view that, despite the diverse cultural, social
and political meanings assigned to the practice, ukuthwala perpetuates a form of gender-based
violence in the context of a culturally sanctioned patriarchy; and that it entrenches patriarchal
power. Further, they submit that the practice is tantamount to forced marriage, which is illegal,
and argue that forced marriage is a form of exploitation that in essence should be regarded as
human trafficking. Such assertions are based on the fact that in recent times the practice has
been used to legitimize and validate criminal abduction and the infliction of gender-based
violence against minor girl children. Abuses of ukuthwala have clearly been perpetrated without
the girl’s consent and have proven to have an adverse effect on her education, health and
physical wellbeing. What human rights activists advocate is in line with a concern raised by the

110
The Daily News of 5 December 2013 reported the story of a woman who, despite enduring and eventually
escaping ukuthwala, remains scarred by the experience more than four decades after the incident.

40
1990–2011 United Nations Human Development Report (UNDP) that: “Disadvantages facing
women and girls are a major source of inequality. All too often, women and girls are
discriminated against in health, education and the labour market – with negative repercussions
for their freedoms”.111 By contrast, ukuthwala is viewed by people who support it as a form of
marriage negotiation; not yet marriage per se but an “event” leading to the process of marriage.
Besides the men who directly benefit from the practice, other people have seemingly come out
in support of it. For instance, Nomagugu Ngobese, head of the Nomkhubulwane Culture and
Youth Development Organization, asserts that ukuthwala “goes back to the days when girls
whose parents did not approve of their boyfriends arranged to be abducted so that the families
would be forced to allow their marriage”.112

C Occurrence and prevalence of ukuthwala

4.5 Instances of ukuthwala commonly take place during times when men, mainly workers in
big cities of South Africa, visit their rural homes. They are typically mine workers, factory
workers, taxi drivers, and long distance truck drivers, among others. Many cases are reported to
have occurred during the festive season as well as during major holidays such as Easter long
weekends and school holidays. On returning to their rural villages, it seems that some men feel
a heightened and urgent need to have a wife who will be responsible for domestic chores and
fulfilling the man’s sexual needs. Some girls have reported that after being captured they were
often beaten up and assaulted in many ways if they tried to escape. Violence almost always
accompanies these cases. Further reports have revealed the use of substances to coerce the
girls into submission, with some also being given muti or traditional medicine which weakens
them and makes it easier for their abductor to control them.

4.6 A number of ukuthwala cases are believed to be concealed, with most being referred to
in community discussions and workshops but not overtly pointed out. The Legal Resources

111
Moletsane R (2011) “Culture, nostalgia, and sexuality education” in Mitchell, C, Strong-Wilson, T, Pithouse, K
and Allnutt, S. Memory and Pedagogy. New York & London: Routledge.
112
The New Age newspaper, 11 April 2011 “Girls Live in Fear of Being Abducted and Married”
http://www.thenewage.co.za accessed online 21 November 2012.

41
Centre asserts that a number of cases are not reported. This is due to a myriad of reasons
including socio-cultural values, fear of stigma, the social standing of a family, and the
desperation of a girl’s parents to receive money or accept cattle for lobolo. Poverty and financial
strain have been listed as one of the reasons that trigger the practice. Girls have reported that
once an “improper transaction” has been carried out, they are often told they are no longer
welcome to return to their homes. The Legal Resources Centre states that “Without places to go
back to, these girls are forced by circumstance to stay with the man that thwala’d them”.

4.7 The stigma of “having failed in marriage”, which is prevalent within rural communities,
contributes to the difficulty of challenging ukuthwala as there is a perception that it is shameful
to walk away from a marriage. The commonly-held view is that it is a woman’s responsibility to
ensure that her marriage is successful despite all odds. Should the girl leave the marriage, she
will be an outcast in her community and will be viewed as a failure and not “marriage material”.
These perceptions, accompanied by the fear of being shunned in one’s village, discourage
victims of ukuthwala from reporting their circumstances to the police and pressure them rather
to stay with their “husbands”. This sense of shame and the associated stigma and social
prejudice all make it difficult to obtain precise statistics of incidents of ukuthwala.

4.8 It is crucial to view ukuthwala as a symptom of the larger issue of gender-based violence
and the disempowerment of women and girls. The practice itself is not the issue, but rather the
problem is circumstances that create and perpetuate abuse. Gender-based offences should be
taken seriously so that perpetrators must stop acting with impunity in their communities.

D Ukuthwala cases and incidents of note

4.9 It is impossible to list all the cases of ukuthwala. In this section an attempt is made at
listing a few such cases, with some concentration on the two provinces that are hit the hardest
by the practice – that is, the Eastern Cape and KwaZulu-Natal. In particular, the Oliver Tambo
District of the Eastern Cape has reported a significant number of abductions. An empirical
survey conducted under the auspices of the Committee in 2013 found that organisations dealing
directly with ukuthwala girl victims concurred that ukuthwala is most widely practised in areas

42
like Ixopo, Bergville, Umzimkhulu and the Eastern Cape. These organisations operate at
national level but are not based only in these two provinces.

4.10 This focus does not imply or suggest prioritising these provinces; neither do we attempt
to provide an exhaustive list of cases in these two provinces. Reference is made to cases dating
back to the year 2000, which reflects that although ukuthwala is an old custom, the practice
continues to the present day.

4.11 There are a number of reports of incidents in which girls traveling to school by foot were
accosted by a man or group of men who overpowered and abducted her. This has happened
mostly in KwaZulu-Natal and the Eastern Cape, where girl children between the ages of 11 and
18 have been abducted and compelled to marry boys or men under the pretence of the
customary practice of ukuthwala (CGE). Consequently, the girl’s family would be approached to
accept the marriage of their daughter – accompanied with a payment of damages.

4.12 The practice has manifested elsewhere. The latest case that has been decided by the
court has been referred to by Bianca Capazorio as “one of the first cases of ‘ukuthwala’ to be
brought to court in the Western Cape”.113 On 4 February 2012, Mvumeleni Jezile of the Western
Cape had six charges put against him, ranging from human trafficking to rape. The state sought
the minimum sentence of life imprisonment on his three rape charges. On 28 January 2014,
Jade Otto reported on the case in the Cape Argus in an article entitled “Girl, 14, tried to escape
‘husband’ twice”; Otto dubbed Jezile a “human trafficker”. Jezile was convicted and awaits
sentencing following the girl’s ordeal, which started in February 2010 when she was kidnapped
from her home in Ngcobo in the Eastern Cape and forced to marry Jezile, who was aged 30 at
the time.

4.13 The practice has also been reported in Bergville and Greytown, with some mothers of
children in Bergville supporting the practice fully. Incidents of three girls dropping out of school
as a result of ukuthwala were reported at Nsetheni area in Bergville.

4.14 The City Press (28 August 2011) in an article titled “Waging war against criminal element
of ukuthwala practice” reported the conviction of three men in Lusikisiki in the Eastern Cape.
They were sentenced by the Lusikisiki Regional Magistrate’s Court to a total of 16 years.

113
Capazorio B, “Man ‘kidnapped, forced girl to marry him’” (http://www.iol.co.za/news/crime-courts/man-
kidnapped-forced-girl-to-marry-him-1.1227492#.UzFGK_mnolQ) site assessed 21 November 2012.

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4.15 In Umzimkhulu, an induna reported a matter to the local SAPS on 1 October 2011. A
discussion was held later that day with the two families about the disadvantages of ukuthwala
for an underage girl. The child was ultimately placed at Sacred Heart Child and Youth Care
Centre and she is continuing with her education.

4.16 In 2012 a case was reported to a pastor of the Shembe church. The CGE received
information from a community member in Maphumulo about a 14-year-old girl child who was to
be married to a member of the Shembe church, as a replacement for her sister who had been
earmarked for marriage but had fallen pregnant. In 2013, the KZN-based newspaper Ilanga
reported the case of a 13-year-old girl who was to be married in January 2013 to a 41-year-old
Shembe church member, with the approval of the girl’s father.

E Nature and scope of the problem

4.17 During 2009 it was reported that the age-old tradition of ukuthwala, which had
apparently died out, was re-emerging in certain parts of the country.114 Various media reports in
2009 revealed that:115

 The SABC had unearthed 100 cases of young girls being forced into unions with
older men;

114
However, as early as 2005 Girls Net had made a submission to the NCOP Chairperson of Select Committee on
Social Services, Ms Masilo, urging Parliament to effect an amendment to clause 12 of the Children’s Bill (now
section 12 of the Children’s Act of 2005) by adding a provision criminalising forced marriages. The concern raised
by this organisation was that although clause 12 provided that every child (a) below the minimum age set by law for
a valid marriage has the right not to be given out in marriage or engagement, and (b) above that minimum age has
the right not to be given to marriage or engagement without his [or her] consent, it was not clear what the minimum
age set by law is. The submission also observed that the Marriage Act and the Recognition of Customary Marriages
Act do not refer to the minimum age for marriage. One conclusion was that the minimum age referred to in this
clause was provided for by the common law, namely the age of 12 years for girls and 14 years for boys (a view
confirmed by the UCT Children’s Institute in the Discussion Paper on Virginity Testing and the Children’s Bill at p
3). Girls Net strongly argued that girls above the minimum age must agree to the marriage and that the decision
should not be left solely to the parents. They noted that the Marriage Act provides that a girl aged between 15 and 18
years can be married but needs the consent of her parents. They interpreted the provision to mean that if a girl
between the ages of 15 and 21 does not want to get married, she cannot be compelled to do so by her parents.
115
See City Press 24/01/2009 “Ripping the veil off ‘ukuthwala’”; Weekend Post Online 2009/04/17 “School girls
being forced into early marriage in T’kei”; Daily Sun 13/03/2009 “Young Girls must flee ukuthwala”; Dispatch
Online 2009/04/13 “King bans forced marriages”; The Star 2009 June 3 “Girls sold for lobola”; Sowetan 10 July
2009 “Girls as young as 13 forced into marriage”; TimesLive 10 December 2009 “Forced Marriage in SA”.

44
  Roughly 20 school girls were being forced to drop out of school every month as a
result of ukuthwala (forced marriage);
 The practice had taken on another dimension in that girls as young as 12 years were
sometimes forced to marry men aged 40 or older, some of whom were HIV positive;
 In some cases the abduction of a girl took place with the consent and knowledge of
her parents or guardian, and might even be orchestrated by those adults if they were
in dire economic straits and were tempted by lobolo offered by the prospective
husband;
 In some instances, a girl was kidnapped by relatives of the prospective husband and
taken to his home;
 The parents of the girls rarely reported these “abductions” to the police for fear of
reprisals, ridicule or being shunned by community members;
 In some cases, when they did report the matter to the authorities, they were told
ukuthwala is a cultural issue;
 In most cases the girls who are abducted are verbally, sexually and physically
abused by their “husbands” and their families.

4.18 Evidently, the question raised by such reports, and the element of ukuthwala that is
found to be distasteful and unacceptable to many people, is where the free and full consent of
the intended bride is lacking, and where coercion is used either by family members or any other
person, including the prospective husband, to induce “consent” to the proposed marriage. As
stated in paragraph 3.4 above, this form of ukuthwala is tantamount to a forced marriage.
Where ukuthwala affects a girl child, it also constitutes a “child marriage” or “early marriage”,
which is another type of forced marriage. It is these corollaries or features of the practice of
ukuthwala in contemporary South African society that the SALRC has been asked to investigate
and make proposals on for law reform. Such proposals should ensure effective access to justice
for potential and actual victims of this practice. Although forced and child marriages can affect
both men and women, these practices have specific detrimental consequences for girl children
physically, developmentally, psychologically and socially.116 The SALRC is aware that girls or

116
One such consequence is early pregnancy and early child-bearing, which may entail complications during
pregnancy and delivery, and could pose great risk of maternal mortality and morbidity. Other problematic
consequences include vulnerability to HIV/AIDS; early termination of the girl’s schooling; and lack of personal
independence, which could increase her vulnerability to abuse and acute poverty. It is a huge responsibility for a
young girl to become a mother and a wife and these roles impact negatively on a girl’s psychological development
and perception of herself. See Child Marriage and Forced Marriage at http://www.forwarduk.org.uk/key-issues/child-
marriage (accessed 30 March 2010).

45
women of all ages may become victims of forced marriages, and that it might be necessary to
fashion the final recommendations for law reform in a manner that takes this reality into account.

4.19 A cursory glance at some of the reports also reveals that the rationale for ukuthwala has
changed. Today, poverty seems to be a critical factor that has contributed to the resurgence of
the custom. The reports that abductions of young girls may take place with the consent and
knowledge of the girls’ parents or guardians – and indeed that in many instances abduction is
orchestrated by parents or guardians who are in dire economic straights and are tempted by the
lobola offered by the prospective husband – bolster this conclusion. There are, of course, other
factors that have fuelled this practice, such as the belief that having sexual intercourse with a
virgin cures HIV/AIDS infection; and traditional attitudes in which women are regarded as being
subordinate to men or as having stereotyped roles. Research by the Commission for Gender
Equality in KwaZulu-Natal,117 the results of which were published in 2009, confirmed that
motives for the practice have changed and that the practice has detrimental consequences for
women. The same study revealed that:

 Whereas the practice was originally intended to culminate in the marriage of an

abducted girl, it is now carried out by vagrant and loitering men who just want to
satisfy their lust.
 Girls are abducted and forced into unions with older men they do not know or like.
 This practice renders girls susceptible to diseases such as cervical cancer and other
sexual reproductive complications, and increases their vulnerability to depression
and hypertension.

F Responses to the revival of the custom

4.20 The resurfacing of the practice of ukuthwala has been condemned and severely criticised
by government, traditional leaders and members of civil society. Such criticism alleges, among
other things, that when children are targeted the practice –

117
The Report of the Gender Commission on Traditional Practices and the Constitution: Policy Dialogue
Implications for Human Rights and Gender Equality, KwaZulu-Natal 4 November 2009.

46
  is contrary to the Constitution;
 violates the right to freedom of choice and the right to education;
 constitutes statutory rape;
 exposes children to sexually transmitted infections;
 forces children to take on social responsibilities, such as parenthood, for which they
are ill-prepared.

4.21 Joint initiatives by government and other stakeholders, aimed at completely eradicating
the practice of ukuthwala, have been implemented. Recent developments in this line include:

 An imbizo in Lusikisiki on 24 March 2009 by the then Minister in the Presidency, Dr

Manto Tshabalala-Msimang, on girl child abductions, forced and early marriages. Dr
Tshabalala-Msimang stressed that it is a myth that if an HIV-positive man sleeps with
a young virgin he will be cured of the infection.
 A visit by the then Minister in the Presidency accompanied by other government
officials to Qaukeni Great Palace and Pharmaton Hostel, a place of refuge used by
girls escaping abductions. The then Minister in the Presidency addressed the
community on this issue on 6 April 2009.
 A pledge entered into with the Traditional Leaders in Flagstaff and Lusikisiki on 20
April 2009.118
 An announcement by King Sigcau during Dr Tshabalala-Msimang’s visit that he
would ban the practice of ukuthwala in Eastern Pondoland.
 A seminar on ukuthwala and its impact on women and children organised by the SA
Human Rights Commission in collaboration with the Commission for Gender
Equality, held on 17 August 2009 in Mthatha Garden Court.
 A visit by the Minister of Women, Children and People with Disabilities, Ms
Noluthando Mayende-Sibiya to Qaukeni Great Palace in Lusikisiki on 26 June 2009.
 A call by the Minister of Police, Mr Nathi Mthethwa, to arrest mothers and fathers
who force a girl child to marry a man unknown to the child.

118
Address by Dr Manto Tshabalala-Msimang to the National Gender Machinery, Commission on the Status of
Women, report-back meeting on 4 May 2009 available at
http://www.info.gov.za/speeches/2009/0905041351001.htm (accessed 11 May 2010).

47
  In 2010 the Minister of Justice and Constitutional Development, Mr Jeff Radebe,
urged the National Prosecuting Authority to take a tough stand on forced
marriages.119
 Certain traditional leaders have been at the forefront, wanting to see criminal cases
prosecuted and accompanying Chapter 9 Institutions (such as CGE) to community
meetings.
 A police task force has been set up in Bergville District to investigate ukuthwala, after
a series of reported abductions there.
 Public campaigns and educational reports have raised the awareness among NGOs,
state actors and other bodies of cases of ukuthwala in “hot-spot” areas. For instance,
the Committee learnt of a report that listed the names of impending girl abductees,
who were said to be earmarked for kidnapping by men who hailed from Umzimkhulu
and were working in Johannesburg and due to return to their rural homes in
Ematsheni and St Paul for the holidays.
 In the Shembe church case cited above, social workers from the Department of
Social Development obtained an order granted by a magistrate of the Children’s
Court in Maphumulo, authorising the removal of the child to a place of safety.
 KZN has an Ukuthwala Provincial Task Team which is coordinated by the Office on
the Rights of the Child (ORC). The establishment of the Task Team was
recommended by the Kwazulu-Natal Provincial Advisory Council for Children
(KPACC), which is provincial machinery that promotes respect for the rights of
children. Capacity building led by the Office of the Premier should be ongoing.
Capacity building and awareness raising are already being conducted at Bergville,
Loskop, Zwelibomvu, Harding, Vulindlela and Jozini.

G Responses to the practice of ukuthwala

4.22 This section draws on data from the 2013 survey conducted by the Committee as well as
state-related responses. Various individuals and institutions concerned about the ukuthwala
scourge (where there is no consent and related human rights violations occur) have made

119
See Timeslive 3 May 2010 “Act on forced marriages, says Radebe” available at
http://www.timeslive.co.za/local/article431089.ece/Act-on-forced-marriages-says-Radebe (accessed 20 May 2010).

48
efforts to combat the practice. Anecdotal evidence indicates that ukuthwala is being practised
on girls as young as 11 years of age, and that “consent” is procured by force, fear and violence.
There is concern that the practice has contributed towards drop-out from schooling as well as
pregnancies among girls, and negative health impacts. Another source of concern is the low
number of cases that are reported, investigated and successfully prosecuted, despite evidence
of the widespread practice of ukuthwala in certain communities. The CGE is of the view that the
South African government should be prevailed upon to take the necessary measures to ensure
its various departments address these serious contraventions. Having been made aware of the
existence of ukuthwala and/or forced marriage cases, the CGE has intervened in some
instances where this was possible by approaching the girl’s family and seeking the intervention
of the SAPS and the Department of Social Development.

4.23 With regard to the Shembe church incident, the CGE invited the National Prosecuting
Authority (NPA) to a meeting on 25 January 2013 in Ozwathini. The NPA was invited to attend
as a key stakeholder in ensuring the protection of the rights of the girl child and the enforcement
of South African legislation in this regard.

4.24 Organisations and state actors that work with abducted girls have listed the following
factors as elements that ought to be considered, first in an attempt to curb the practice and
second to offer support to the victims:

 Establish educational campaigns in conjunction with local community organizations

or activists;
 Institute a support system that is able to draw on a network of helpers;
 Report cases to all state actors including the Department of Social Development and
the SAPS;
 Relevant departments should gather statistics on ukuthwala. Research on the
practice must be undertaken to assess its true extent.

4.25 Some of the complaints and possibilities listed by these organisations include:

 Police take too long to prosecute;

49
 State actors ought to act much more decisively. For instance, the NPA has the
requisite powers to open a charge without parental consent and to charge the
parents if they are obstructing justice.

50
 CHAPTER 5

LAW REFORM OPTIONS

5.1 The discussion and analysis in the preceding chapters have led the SALRC to the
conclusion that a social problem does indeed exist in South Africa. This problem is largely
attributable to the spate of attacks on young girls, mainly in certain rural areas, which
perpetrators attempt to justify by invoking the custom of ukuthwala. The preceding discussion
also makes it clear that a distinction should be drawn between this known custom and the
current practices, which are illegal distortions of the custom. The discussion has also raised
questions about ukuthwala itself as a custom and whether it passes constitutional muster. In this
regard, the SALRC has resolved not to enter into any debates for now, and prefers rather to
assume the legitimacy of the genuine traditional types of ukuthwala as being a prelude to
customary marriage. Customary marriage is protected by the Constitution and by the
Recognition of Customary Marriages Act.

5.2 These conclusions then raise the question of what the remedy ought to be. There is no
shortage of proposals and suggestions for a solution to the problem, ranging from stiffer
sentences for offenders based on existing criminal law to strengthening the powers of traditional
leaders to deal with the scourge. Lawyers in particular have robustly debated whether the
current law (both criminal and common law) is sufficient to curb abuses of ukuthwala – which
would mean that only its implementation needs to be strengthened; or whether new legislation
needs to be enacted.

5.3 It is important to heed the views that lie behind these debates, especially the
perspectives of ordinary people who have to live with the traditional practices described in the
report. The SALRC has not only had the benefit of the inputs from its own preliminary
consultation process but has had access to the recent report on ukuthwala by the CRL Rights

51
Commission,120 which canvassed the views of representative NGOs and other civil society
bodies. The richness of views regarding possible solutions to the problem is replicated in that
document as well.

5.4 There is significant support for strengthening the implementation of existing legislation
and common law. As shown in the Legal Framework chapter of this document, there is no
shortage of domestic laws – criminal and civil – which can be used to deal with the current
practices masquerading as ukuthwala. A simple scan of existing criminal legislation and a
judicial decision or two reveal no less than ten prosecutable offences that can be pursued
against an abductor and any other involved persons.121 This excludes sanctions provided under
civil law and other regulatory laws. The call from supporters of this approach is that these
existing measures be strengthened by beefing up implementation (which essentially means
detection, arrest and prosecution) and imposing stiffer sentencing upon conviction. The case of
Jezile122 seems to support this approach, where the perpetrator was convicted and sentenced to
22 years, despite an appeal.

5.5 Countering such arguments are views that emphasise two considerations: that the
current legislation and other relief are spread out too widely across the laws of South Africa to
be readily accessible, and that a new statute would send a powerful symbolic message to
perpetrators and ordinary South Africans alike. It is argued that the current law relating to the
age of consent cannot be regarded as settled123 and that a new definitive statement would go a
long way towards clarifying this area of the law. The SALRC finds these arguments persuasive.
There is no doubt that cases like Jezile demonstrate that it is possible to pursue an abductor
and his accomplices on the basis of existing statutory and common law, but the symbolic and
educational merits of new consolidated legislation on this matter should not be underestimated.
At the end of the day this is a human rights issue, at the most topical and cutting-edge of the
scale (namely the protection of the most vulnerable members of society: under-age, rural girl
children). Putting aside continuing debates about culture and human rights, it is important to be

120
Public Hearings and Research on Ukuthwala: Views and Perspectives Emerging from the South African
Communities Report compiled by the Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities
121
See footnotes 76-84 in Chapter 2
122
Jezile v S and Others (A 127/2014) [2015] ZAWCHC 31
123
See the discussion on the Recognition of Customary Marriages Act and the Children’s Act on pages 19-24.

52
resolute and unambiguous in attacking those distortions that have crept into olden usages and
which amount to oppression, plain and simple. We believe that a new consolidated statute is the
best way to achieve this end.

5.6 In light of this, the SALRC supports the enactment of new legislation for the following
reasons:
 It would offer an opportunity to make an unequivocal statement against forced
marriages, clarifying in the process the question of marriageable age;
 It would consolidate the applicable principles in one instrument; and
 It would send a powerful symbolic signal in defence of women’s rights.

5.7 The SALRC therefore recommends that a criminal statute be created that would do the
following:
 Define “forced marriage” and “child marriage”.
 Clarify the rules applicable to minors’ marriages with parental consent.
 Criminalise the conduct of forcing someone into a marriage without his or her free
and full consent.
 Criminalise the conduct of people who aid and abet the contracting of such
marriages.
 Criminalise the conduct of the perpetrators even if the marriage did not take place.
 Contain an aggravated offence for conduct in relation to a person under the age of
18 years.

5.8 As an additional approach, it might still be necessary to supplement the effectiveness of

a new statute by amending various key enactments that already exist, such as the Marriage
Act, the Recognition of Customary Marriages Act and the Children’s Act. Such amendments
would insert provisions to deal specifically with some of the effects of the current abuses of
ukuthwala.

5.9 All of this is not to say that there is no place for non-legislative measures in attacking
the scourge of illegal practices carried out under the guise of customary marriage. There is too
much at stake in terms of social cohesion and stability not to consider seriously the need to
influence the habits of members of those communities where these practices are rife. The

53
situation is complex. Poverty plays a significant role.124 Parental complicity restricts the ability or
willingness of the victims to report cases of abuse.125 The sanctions imposed by the courts may
overlap with traditional fines and punishments, to the confusion of communities. All of these
considerations strengthen the case for non-legal interventions, which should include education,
training and awareness-raising campaigns among relevant service providers, professionals,
both in urban neighbourhoods and rural communities.

124
See CRL Rights Commission Report at 36
125
supra at 33-35

54
 CHAPTER 6

PUBLIC CONSULTATIONS

A Introduction

6.1 This chapter draws from written submissions as well as face-to-face consultative
meetings on the Discussion Paper that were held throughout the country between November,
2014 and January 2015 and on the Revised Discussion Paper that were held throughout the
country between January 2016 and March 2016. Various individuals and governmental and
non-governmental organisations participated in this process. Emanating from all written
submissions and consultations, there was wide consensus that the practice of ukuthwala in its
current form is distorted, with the introduction of many negative elements. Further, there was
agreement that some form of intervention is necessary, as the status quo is unacceptable.
However, despite the general agreement, there also exist various views and differing levels of
regard for the practice.

B Views on Ukuthwala

6.2 Some of the views are significantly divergent, reflecting the following threads of thought:

a) Groups supporting ukuthwala are sometimes nostalgic about the practice:

 They regard it as an event leading to marriage as in instances where girls arranged to
be abducted so that families who disapproved of the boyfriend would be forced to allow
the marriage,

55
  They acknowledge and understand that culture evolves; they are also aware of the
inherent distortions within the practice,
 They maintain that ukuthwala is different from bride abduction. Some participants at the
Pietermaritzburg consultative meeting asserted that the indigenous version of ukuthwala,
unlike the act of abduction, is appropriate and acceptable.
 They believe that amakhosi, as custodians of customary law, need to be rigorously
inducted into an understanding of the constitutional elements that are violated in the
current practice. The Pietermaritzburg meeting also raised the issue of strengthening
traditional governance, especially the Traditional Courts, which would play a crucial role
in ensuring compliance with the law and the Constitution.

b) Groups opposed to the practice regard it as abuse of women. In a written submission,

Dr JL Matthee and Professors C Rautenbach, WJ du Plessis & D du Plessis of North-West
University argue that the practice is ’a violation of a minor girl’s fundamental human rights under
the guise of ukuthwala, and should not be justified’.

6.3 Views held by these academics stem from reported cases of abductions and
kidnappings of women and girl children in the name of ukuthwala, many of which are cases that
they have to oversee as well as provide support towards. In opposing the practice they highlight
the need to take cognizance of;
 elements of criminality often associated with the practice,
 negative impact on health and physiological development of women,
 child mortality resulting from trauma of abduction.
It is on bases such as these that the Commission on Gender Equality supports the enactment of
new legislation that would ‘address the unlawful elements and consequences of ukuthwala’.

6.4 Within the group opposing the practice there were stern views expressed. For example,
in a written submission Ambrose Mfayela argued that ukuthwala has no place in our
constitutional democracy, and consequently advocated a total ban of the custom. However,
other opponents of ukuthwala conceded that the Constitution of the Republic of South Africa is
equally protective of cultural rights, thus opening the door to a debate on the apparent
contradiction between culture and individual rights.

56
6.5 It is on the basis of such perceptions of contradictions within the Constitution that two
organs of state – the Commission on Gender Equality (CGE) and the Commission for the
Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL
Rights Commission) – at the Centurion consultative meeting were called upon to find common
ground and provide unambiguous guidance. This perception of contradiction emerged in a
slightly different form in a written submission by Dr Makho Nkosi and Professor MT Buthelezi of
the University of KwaZulu-Natal who argue for ‘zero tolerance of the abduction of girls’, while
simultaneously suggesting that ‘the cultural practice of ukuthwala as a custom among the Zulus
be accommodated, and that those people who want to practice it be respected in their choice’.

6.6 Finally, there was a view expressed that the concerns related to forced marriages need
to be broadened to include other forms of coercion and practices not limited to ukuthwala,
arguing that legislation that deliberately singles out ukuthwala could be viewed as selective.

c) Groups that see ukuthwala as distortion of a cultural practice

6.7 Flowing from the general agreement that the current mode of the practice is not
ukuthwala, some participants at the consultative workshops were at pains to explain the
difference between ukuthwala and abduction. They view the contemporary trend in South Africa,
in the name of ukuthwala, as abduction, pointing out the following negative elements in
particular:
 Lack of consent by the woman: consent of a woman was an important part of
ukuthwala, either before or during the process of ukuthwala. In fact some people argued
that when ukuthwala took place before the woman’s consent, and she subsequently
refuses to accept the love of the man, a fine (ukuthwala beast) was paid to her family.
Accordingly, to NQ Mabeka it is of utmost importance to ‘conform to the provision of
Section 3 of the Recognition of Customary Marriages Act, in other words; the woman
concerned must give express consent to such marriage and if she does not do so she
should not be abducted or thwalaed at all’. Along the same lines, the Centre for Child
Law submits that, ‘while the Recognition of Customary Marriages Act and the Marriage
Act make it possible for children to get married, where all the other requirements are
complied with, South Africa should be heeding the international call for the age of
marriage to be set at eighteen years without exceptions’. According to the Centre such
compliance will categorically outlaw child marriages.

57
  Rape: Within the appropriate indigenous ukuthwala practice, sex was prohibited.
Evidence of sex led to a fine against man, even if he were to argue that there was
consent.
 Drugs: The practice of coercing abductees to take some form of medicine in order to
induce them to ‘love’ someone they did not intend to love was referred to. This is also
unacceptable: the process of handing the woman over to the women in the family of the
interested man was for her to be safe while word of her whereabouts is sent to her
family.
 Violating human rights: Other participants lamented the fact that what is described is
grossly at odds with human rights as encapsulated in the Constitution.

C Stakeholders’ views on possible interventions

6.8 There was complete consensus that, in order to deal with the human rights and social ills
associated with current versions of ukuthwala, various kinds of intervention need to be taken,
though views differed as to what form the interventions should take. The suggestions included
the adoption of the following:

Legislative measures -

 new measures; or
 strengthening existing measures

Non-legislative measures

a) Legislative measures were viewed as an important intervention strategy. Some

participants, like the Gauteng consultative meeting group suggested that these required the
creation of a law against ukuthwala or those elements of ukuthwala that are negative. Others
suggested that there are sufficient legal instruments in existence and that these needed to be
strengthened for instance to enforce provisions about consent and marriageable age. Mkhuseli

58
Jokani’s written submission, whilst acknowledging the gross nature of the current practice,
asserted that ‘South Africa does not need a specific legislation to deal with the practice of
ukuthwala. The common law has proven as well as other statutory provisions that deal with the
conduct arising from the ukuthwala practice are enough to adequately respond to the problem’.

6.9 On the other hand there were many proponents of the enactment of new legislative
measures as an intervention strategy. Prominent in this category were the South African
Catholic Bishops’ Conference Parliamentary Liaison Office (SACBC) and the South African
Police Services (SAPS). These organisations supported the development of a new statute
which would criminalise distorted ukuthwala, arguing that the current legislation dealing with
customary marriages does not address issues of age and consent. In particular, the SACBC
supports the view of the NPA - that criminal charges should be extended to parents who agree
to their under-age children being forcibly married.

They motivate their preference for a new law in the following way:

 The extent of the problem and its conflict with the Constitution warrant the enactment of
a stand-alone statute.
 The seriousness of problems associated with ukuthwala (such as abduction, rape,
forced marriage, conduct of guardians) is of such a magnitude that a clear law is
necessary.
 Stakeholders will not do what they are supposed to do to curb the practice or deal
appropriately with victims unless these duties are outlined in law. This view supported
the extension of a new law to cover the enforcement of social interventions and dealing
with victims, including for instance the responsibilities of agents such as SAPS, the
Department of Justice and Constitutional Development and Department of Co-operative
Governance and Traditional Affairs.

b) Non-legislative interventions (which include education programmes, awareness workshops,

and media campaigns) tended to be motivated on the following grounds:
 There is a need to engage communities at the local level, about the aberrations of culture
and about the human rights of women and children. One participant in the Eastern Cape
quibbled with the neutrality of the term “partner” in reference to abductions saying this

59
 happened specifically to women. However, there is also recognition that while deploying
the energies of civil society to engaging communities on all practices that are harmful and
involve force towards children, both sexes would have to be considered though with
emphasis on the current plight of girl children and women,
 Some participants emphasised the need to revive a good relationship with local
structures of authority and leadership. This was in particular reference to traditional
leadership in some instances; but mention of faith-based organisations, traditional healers
and community-based organisations was also made,
 Women and girls must be empowered with knowledge, so that they know their rights. In
particular schools must be involved in engaging young girls about their rights, the
importance of education, and the illegal nature of current ukuthwala practices so that
they can seek appropriate assistance if at risk,
 Concerns were raised that the statutory route may sometimes not take into account the
nuances of culture, such as where a family fines a man for ukuthwala where the woman
did not accept the man’s proposal, or a where fines for illegal sex with the woman have
been levied. Perceptions of double punishment in such cases aboundin traditional
communities and need to be explained.
 Some of the institutions that should spearhead non-legal interventions were identified
and listed as follows:
 Department of Basic Education;
 Department of Justice and Constitutional Development;
 Department of Social Development;
 Department of Health
 South African Police Services
 Traditional leaders
 Non-governmental Organizations
 Interfaith organisations;
 media
 community leaders;
 special welfare organisations

6.10 From the comments and responses received on the Discussion Paper, the majority
supported the view was that a stand-alone statute should be enacted to deal with the distorted

60
ukuthwala practice as opposed to amending existing legislation. Based on this the Commission
drafted a Bill which was included in the Revised Discussion Paper. The draft Bill is titled
“Prohibition of forced marriages and child marriages”. After publishing the Revised Discussion
Paper, the Commission held public consultations to source comments and responses on the
draft Bill.

6.11 The proposed legislation was viewed as an important strategy to curb the prevalence of
distorted ukuthwala. The draft Bill was received well in all public consultations, subject to the
suggestions that were made during the consultations and in written submissions.

D Submissions received on the draft Bill

6.12 As usual in the SA Law Reform Commission process, the inclusion of a draft Bill helped
significantly to focus the discussions on particular points of implementation. Thus many of the
points of principle mentioned above found expression in proposals for certain language to be
included in, or excluded from, the Draft Bill. Generally speaking, the proposed language related
to at least six topics in the Draft Bill: definitions, objects of the Bill, the concept of “forced”, the
concept of “child”, the issue of penalties and a miscellaneous basket of proposals mostly
relating to non-legal interventions and victim support services. While it is not possible to address
every single suggested formulation, the discussion below will attempt to capture the more
substantial debates.

Submissions relating to the DEFINITION section in the draft Bill (Clause 1)

6.13 The CGE suggested that since illegal forms of ukuthwala also entail abduction of the
prospective bride, it will be appropriate to include the term “abduction” in the list of definitions
which means to take any person without such a person’s consent, and includes the subduing of
any person due to undue influence, the fear of harm to the person and/or any relative of the
person being abducted. This suggestion was supported by the Department of Women.

61
After some debate, the Commission concluded that since there exists a common law offence of
abduction, it would be unwise to lift out this offence for separate definition, when the Bill does
not do so for other common law or statutory offences that it includes by incorporation.

6.14 The LRC submitted that the definition of child marriage in the draft Bill cannot be
restricted to a definition and meaning which does not meet South Africa’s international and
regional obligations. In light of this, the LRC propose rewording of the definition as follows:

“child marriage” means any marriage entered into where one of the parties is a child
under the age of 18 years regardless of whether consent to the marriage was given by
the child, his or her parents or legal guardian.

6.15 The suggestion was supported by the Department of Women, the CGE and the WLC.
The participants in the public consultations also shared the same sentiments with some
suggesting the raising of marriageable age to 21 and even 25 years. It was argued that the LRC
proposal will give effect to the Convention on the Rights of the Child (1989) which requires state
parties to increase the minimum age for marriage, with or without consent, to 18 years for both
girls and boys.

Of all the submissions made during the consultations, this is the one that elicited the
most debate within the Commission. That debate is fully reflected below, in the
discussion of “child marriage” in paragraphs 6.24-6.27.

6.16 The participants at the workshops suggested that the word “cognate” in “cognate union”
causes confusion and that it does not contribute in any way to the purpose of legislation. They
suggested that the definition of “union” should suffice to define such relationship. This is also
supported by the LRC who argued that the word “cognate” causes confusion in that it implies
a union/marriage between two people who are related to each other by blood, an issue that has
been addressed both in common law and in customary law.

6.17 The Commission had little difficulty in answering these criticisms. Firstly, the idea that
the notion makes no contribution to the mandate is flawed. Customary marriage is sometimes
described as “a process not an event” precisely because, before and after a certifiably valid

62
married status, there are so many intermediary marriage-like statuses that could “house” an
incident of ukuthwala. The proposed statute cannot be silent on the existence of these “limping
marriages” which are nevertheless fertile incubators of ukuthwala incidents. As to the adjective
“cognate”, the criticism is again misplaced. The dictionary gives the primary definition of the
word as “akin, or related” (as in “cognate languages”) and only in its secondary meaning does it
go into “related by blood”. A cognate union, therefore, is simply “a relationship akin to marriage”
or “related to marriage” (which, by definition, means that the relationship itself is NOT marriage).

6.18 The WLC suggested that consent should be defined to guard against a situation where
one of the individuals involved is not in a position to make an informed decision about a partner
and that if a person is below the age of 18, it must be presumed that consent was not given
freely and full. This recommendation was accepted in essence.

Submissions relating to the OBJECTS of the Act (Clause 2)

6.19 Participants in the workshops suggested that paragraph (a) of the Objects clause should
mention all constitutional values and not only human dignity because all constitutional values
are of equal importance. This view was also supported by the LRC. The Department of Women
suggested the addition of the words “and promotes the rights of women and children” to the
clause because women and children are more likely to be victims of forced marriage and child
marriage.

The CGE suggested that a new paragraph (e) be inserted and should read as follows:

“to provide for the prevention of forced and child marriages including the protection of
and remedial actions for victims of such marriages”

6.20 Essentially, the Commission was not satisfied that all constitutional values merited listing
in a statute primarily aimed at curbing abuses of ukuthwala, whether these values are distilled
from Chapter 1 of the Constitution or from the Bill of Rights more broadly. On the other hand,
the Commission was happy to adopt the language more directly targeting women and children.

63
6.21 There were other minor amendments proposed which sought the inclusion of language
that, in the view of the Commission, was either too aspirational (rejected) or appropriate but
wordy (accepted and re-drafted)

Submissions relating to the offence of FORCED MARRIAGE (Clause 3)

6.22 the CGE suggested that sub-clause (1) should read as follows:
“A person commits the offence of forced marriage if he or she –
(a) uses violence, threats or any other form of coercion, including any false pretence or
misrepresentation for the purposes of causing another person to enter into a
marriage …”
This amendment was accepted, with modifications.

6.23 The Department of Women suggested that sub-clause (2) should read as follows:
“In relation to any person who by reason of mental incapacity or any such reason
lacks capacity to consent to a marriage, the offence under subsection (1) is capable of
being committed by any conduct carried out for the purpose of causing that person to
enter into a marriage (whether or not the conduct amounts to violence, threats or any
other form of coercion).

This amendment was accepted.

Submissions relating to the offence of CHILD MARRIAGE (Clause 4)

6.24 The Department of Women, the CGE and WLC suggested that a position should be
taken where all child marriages are prohibited with no exceptions. This would offer meaningful
protection to all children and remove loopholes that can be exploited. This suggestion will give
effect to the Convention on the Rights of the Child (1989) which requires state parties to
increase the minimum age for marriage, with or without consent, to 18 years for both girls and
boys. It also calls for the amendment or repeal of sections 24, 24A, 25 and 26 of the Marriage
Act 25 of 1961; and repeal of section 3(3), (4) and (5) of the Recognition of Customary
Marriages Act 120 of 1998. This suggestion was also raised in public consultations that as long
as there are still instances where a child can enter into a marriage, it would continue to be

64
difficult to fight forced marriages where one or both parties are children because parents and
legal guardians may abuse their powers and force their children to enter into a marriage.

6.25 This matter raised several very real dilemmas for the Commission. The main one
concerned the reach of the mandate given to the Commission. One interpretation of that
mandate was that the investigation should assess the extent of the problems surrounding the
practice of ukuthwala, including distortions and other re-interpretations of the practice, so as to
propose remedial action, if any, to address those problems. A viable conclusion can be drawn
from such an interpretation of the mandate, which would limit the scope of the remedial action to
the distortions and abuses that have crept into the manifestations of the practice over time.
Thus where ukuthwala is claimed as a justification but the actions flout the known rules of the
custom, intervention would be called for. The difficulty arises with the consideration of the scope
of the remedial action. Criminalising the distortions, calling for stiffer penalties, allocating more
resources to victim support services may all be legitimate and, indeed, expected responses. But
what of the abject poverty that afflicts some of the communities where such distortions occur
with parental collusion? Can a statute aimed at preventing the abuse of a practice, or punishing
its perpetrators, have anything sensible to say about big-picture reconfigurations of the
economy to ameliorate the plight of rural communities?

6.26 Pursuing the “big picture versus limited scope” argument in this vein, the Commission
was well aware of the consequences of opting for either approach. The former would justify
consideration of a sweeping set of repeals and amendments to comply with South Africa’s
international treaty obligations and to rationalise domestic laws to the single principle that no
one under the age of 18 should be able to enter into a valid marriage, regardless of parental,
judicial, administrative or Ministerial consent (see the discussion in pp 19-24, above). It is an
attractive argument, compellingly made in many quarters. The removal alone of the arbitrary
discrimination in the respective marriageable ages between boys and girls enshrined in section
26 of the Marriage Act would be a signal victory for equality. The real dilemma for the
Commission was whether it was appropriate for an enactment aimed at correcting abuses of a
particular African custom to be the locus of wide-ranging interventions into marriage law in
general, especially in the absence of any real research into why it is that these glaring
anomalies have persisted into the constitutional era without challenge.

Submissions relating to PENALTIES (Clause 6)

65
6.27 The CGE and WLC proposed that the penalty clause should be revised so as to provide
a suitable deterrent rather than leaving this at the discretion of the court. They both emphasised
that it is necessary to create a specific penalties for forced marriage and child marriage;
otherwise it will be counter-productive to create these offences without creating a
comprehensive framework for how they operate.

After deliberation, the Commission was wary of interfering with judicial discretion on the
question of sentencing.

Miscellaneous suggestions for insertion of new clauses

6.28 This category of proposals included:

 A new clause be inserted impose a duty on caregivers to report forced marriage or child
marriage, and creating an offence for failure to do so
 A new clause be inserted to give the courts authority to nullify any child marriages or
forced marriages involved in cases heard before the court
 Clauses should be included relating to the training and education of officials and service
providers who have a duty under the Act to ensure effective enforcement of the law
 Clauses should be included relating to victim support services.
 Doubts were expressed about the proposed marriage protection order and whether it
could be effective given the shortage of courts and personnel especially in rural areas.

6.29 In summary, the Commission rejected the criminalising of the failure to report a crime
under this Act, though accepting that a list of caregivers be attempted. It was also agreed that a
criminal court should not be expected to nullify alleged marriages. All the proposals on
education, training and victim support services were accepted as matters that the Minister
should be empowered to include in Regulations.

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 ANNEXURE A

LIST OF PARICIPANTS AT THE ROUNDTABLE HELD IN PRETORIA ON 30 NOVEMBER

2009

1. Judge Yvonne Mokgoro, Chairperson: SA Law Reform Commission

2. Advocate Dumisa Ntsebeza,SC, Part-time Commissioner: SA Law Reform Commission
3. Advocate Fanyana Mdumbe, SA Law Reform Commission
4. Makhosazana Nxumalo, Commission for Gender Equality: KwaZulu Natal
5. M Mnguni, KwaZulu Natal Department of Arts and Culture
6. Mokhibo Gwintsha, Department of Justice and Constitutional Development
7. Fathima Khan, Tshwaranang Legal Advocacy Centre
8. Lesirela Letsebe, Lawyers for Human Rights
9. Ronaldah Ngidi, Centre for Child Law: University of Pretoria
10. Makho Nkosi, Centre for Gender Studies, University of KwaZulu Natal
11. Douglas Mailula, University of South Africa
12. Nelifelani Magadeni, Department of Justice and Constitutional Development
13. Dial Ndima, University of South Africa
14. Mupanga Bodika, SALGA
15. Lea Mwambene, University of Western Cape
16. Christa Rautenbach, North West University
17. Jacques Matthee, North West University
18. Elizabeth Mokoena, Women and Men Against Child Abuse: Kids Clinic SAPS
19. Nonjabulo Mogale, Victims Support Unit: SAPS
20. Vincentia Dlamini, Women and Men Against Child Abuse
21. Anne Scheepers, Department of Justice and Constitutional Development
22. Matthew Gopane, CRL Rights Commission
23. Rumbie Chidoori, People Opposing Women Abuse
24. Bongi Mpitso, Law Society of South Africa
25. Abram Sithole, Department of Cooperative Governance and Traditional Affairs
26. Dr Masejana Sibanda, Department of Cooperative Governance and Traditional Affairs

67
27. Phindi Molopyane, Department of Cooperative Governance and Traditional Affairs
28. Mr Ezekiel Oqbebila, Nigerian Law Reform Commission
29. Abimbola Coker, Nigerian Law Reform Commission
30. Fanny Rabkin, Business Day
31. Buyi Makhubela, Teddy Bear Clinic for Abused Children
32. Nceba Mrwebo, Commission for Gender Equality
33. Lowesa Stuurman, SA Law Reform Commission
34. Patricia Henderson, Children’s Institute: University of Cape Town
35. Dellene Clark, SA Law Reform Commission
36. Engela Steyn, Department of Justice and Constitutional Development
37. Gyan Dwarika, Department of Social Development
38. Thozama Lutya, Social Work and Criminology: University of Pretoria
39. Phiwokuhle Gume, KwaZulu Natal Department of Local Government and Traditional
Affairs
40. Wambui Gititu, International Organisation for Migration
41. Carien Pienaar, SA Law Reform Commission
42. Anika Claasens, Law, Race and Gender Unit: University of Cape Town
43. Prinslean Mahery, Children’s Institute: University of Cape Town
44. Molaole Montsho, South African Press Association
45. Sphiwe Mkhize, South African Broadcasting Corporation

68
 ANNEXURE B

NAMES OF RESPONDENTS TO THE DISCUSSION PAPER

1. Prof Jan C Bekker

2. Adv M Lepaku
3. South African Catholic Bishops’ Conference Parliamentary Liaison Office
4. NQ Mabeka
5. Ambrose Mfayela
6. Legal Resources Centre
7. Centre for Child Law
8. Dr Makho Nkosi
9. Prof MT Buthelezi
10. Commission for Gender Equality
11. The South African Police Services
12. Dr JL Matthee
13. Prof C Rautenbach
14. Prof WJ du Plessis
15. Prof W du Plessis Mkhuseli Jokani

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 ANNEXURE C

NAMES OF RESPONDENTS TO THE REVISED DISCUSSION PAPER

1. Department of Women: Republic of South Africa

2. South African Police Services
3. Legal Resources Centre
4. Commission for Gender Equality
5. Women’s Legal Centre

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 ANNEXURE D

DRAFT PROHIBITION OF FORCED MARRIAGES AND REGULATION OF RELATED

MATTERS BILL

REPUBLIC OF SOUTH AFRICA

_____________
PROHIBITION OF FORCED MARRIAGES AND REGULATION OF RELATED MATTERS
BILL
______________
(As introduced)
______________
(MINISTER OF JUSTICE AND CORRECTIONAL SERVICES)
[B B2015]

BILL

To introduce an expanded crime of forced marriage; to prohibit child marriages; to

provide for competent verdicts in relation to forced marriages; to criminalise an attempt,
conspiracy or incitement to commit an offence relating to forced marriages; to make
provision for civil remedies; and to provide for matters connected therewith.
______________
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:

1 Definitions

“child” means a person below the age of 18 years;

“child marriage” means a marriage relationship or cognate union where one or both of the
parties are children;
“cognate union” means a relationship between two parties which is akin to marriage according
to any law, custom or religion and includes a relationship where the parties live, or have lived,

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together although they are not, or were not, married to each other, (or are not able to be
married to each other);
“consent” in the context of marriage means the non-coerced agreement to the marriage with
full understanding of the consequences of giving such consent;
“forced marriage” refers to a marriage relationship or union entered into where one or both of
the parties has not personally expressed their full and free consent to marriage, and includes
those marriage relationships or cognate unions purporting to be contracted in pursuit of
practices such as ukuthwala, shobediso, tjhobediso, kutlhaka, tlhakisa, tahisa, kutaha and
tšhabiša, ukweba umakoti or any similar practice;
“forced marriage protection order” means an order issued by the court to prohibit a person
from committing or aiding to commit the offence of forced marriage or child marriage, or if such
purported marriage has taken place, an order issued by the court compelling the respondent/s
to terminate such marriage and to allow the victim to return to his or her place of residence
before such purported marriage took place;
“Minister” means the Minister of Justice and Correctional Services.

2 Objects of the Act

The objects of this Act are —
(a) to give effect to the international law and constitutional values of human dignity,
(b) to ensure that marriages are entered into freely and without any form of coercion;
(c) to prohibit child marriages and forced marriages;
(d) to provide for the prosecution of persons who commit offences provided for in the
Act and for appropriate penalties upon conviction
(e) to provide for the protection of and remedial action for victims of such marriages.

3 Offence of forced marriage

(1) A person commits the offence of forced marriage if he or she –
(a) uses violence, threats or any other form of coercion, including any false pretence
or misrepresentation for the purposes of causing another person to enter into a
marriage, and
(b) believes, or ought reasonably to believe, that the conduct may cause the other
person to enter into the marriage without free and full consent.
(2) In relation to any person who by reason of mental incapacity or any such reason lacks
capacity to consent to a marriage, the offence under subsection (1) is capable of being

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 committed by any conduct carried out for the purpose of causing that person to enter into
a marriage (whether or not the conduct amounts to violence, threats or any other form of
coercion).
(3) Any person who —
(a) attempts;
(b) conspires with any other person; or
(c) aids, abets, induces, incites, instigates, instructs, commands, counsels or
procures another person,
to commit an offence in terms of this Act, is guilty of an offence and may be liable on
conviction to the punishment to which a person convicted of actually committing that
offence would be liable.

4 Offence of child marriage

A person commits the offence of child marriage if he or she enters into a marriage or
cognate union with a child, unless he or she complies with section 3(3), (4) and (5) of the
Recognition of Customary Marriages Act 120 of 1998.

5 Competent verdicts
If evidence on the charge of forced marriage or child marriage does not prove the
offence, but proves instead –
(a) the offence of abduction;
(b) the offence of kidnapping;
(c) the offence of assault;
(d) any offence in terms of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007;
(e) any offence in terms of the Prevention and Combating of Trafficking in Persons
Act 7 of 2013;
the accused may be found guilty of the offence so proved and be liable on conviction to
any sentence in line with the penalty prescribed for such offence.

6 Duty to report offence and suspected offence

Any person who has a duty of care towards any child also has a duty to report any case
of child marriage, including a reasonable suspicion of a child marriage that they are

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 aware of, which has been brought to their attention or they come across during the
course and scope of their work.

7 Penalties
Any person found guilty of the offences referred to in sections 3 4 and 5 of this Act, is
liable on conviction to imprisonment for a period in line with the punishment prescribed for the
offences of assault, abduction,, kidnapping, rape and human trafficking, or a fine, or both such
fine and imprisonment

8 Forced Marriage Protection Order

(1) (a) A Forced Marriage Protection Order is a remedy that may contain such
prohibitions, restrictions, requirements or other terms as the court may consider
appropriate for the purposes of the order.
(b) The terms of the orders may, in particular, relate to —
(i) conduct outside the Republic as well as conduct within the Republic;
(ii) respondents who are, or may become, involved in other respects as well as,
or instead of, respondents who force or attempt to force, or may force or attempt
to force, a person to enter into a marriage.
(iii) other persons who are, or may become, involved in other respects as well as
respondents of any kind.
(c) For purposes of subsection (b) examples of involvement in other respects are —
(i) aiding, abetting, counselling, procuring, encouraging or assisting another
person to force, or attempt to force, a person to enter into a marriage; or
(ii) conspiring to force, or attempt to force, a person to enter into a marriage.
(2) The procedure and process for the attainment of a protection order will be determined by
the Minister in the Regulations.

9 Regulations
The Minister must make regulations regarding the following matters connected with this Act:
(i) the procedure to be followed in obtaining a Forced Marriage Protection Order
inclusive of a determination of the relevant court that will have jurisdiction in such
matters;

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 (ii) procedure regarding the reporting of child marriage by any community member,
traditional leader, religious leader, educator, health care worker, social worker
and an official of any other organ of state;
(iii) national guidelines, instructions and training programmes that must be provided
to stakeholders listed in paragraph (ii) to ensure the effective implementation of
this Act;
(iv) the nature of facilities, conditions and circumstances under which any victim of
child marriage or forced marriage must be treated; and
(v) the norms and standards of any place of safety or shelter.

10 Short title
This Act is called the Prohibition of Forced Marriages and Regulation of Related Matters Act.

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