Introduction

South Africa is a diverse country with diverse history and cultures. Some of the cultural practices have
moved on with time while others have been left behind, with society doing away with them because
they have no place in the new constitutional order. It is important to note that the existence of the
constitution is not do away with customary law or cultural practices that govern the way different tribes
live, but rather to ensure that everyone is protected against any practice that may prejudice their rights.
Section 211(3) of the Constitution states that 1 the courts must apply customary law when that law is
applicable, subject to the Constitution and any legislation that specifically deals with customary law. The
practice of Ukuthwala can be described in so many different ways, but one which has become more
common and acceptable is, the unlawful 2abduction/ kidnapping and or trafficking of young girls and
women. In such a practice, a young girl or woman is abducted against her free will by a male person
with the sole purpose of forcing the young girl into a coerced marriage. This research study will focus on
the practice of ukuthwala in depth and also the implications the practice has on fundamental rights.

The Practice of Ukuthwala can be characterized by the kidnapping, assault and rape. 3Provinces such as
KwaZulu-Natal and the Eastern Cape were among the Provinces which were mostly affected by such
practice. 4This practice of ukuthwala dates back as far as the early 1880. The word “ukuthwala” used to
refer to a variety of irregular forms of marriage that took place without the consent of the woman or her
father.

Reports about the violence connected to ukuthwala forced many Organizations and different sectors of
society to respond. 5The South African law Reform Commission did an extensive study on the practice.
From media and Government reports, legal scholarships and case law, the two general conclusions
emerged namely that: Non-consensual was a modern phenomenon and that it was an abuse of
tradition, not an authentic customary practice. Coercive ukuthwala has been practiced for generations.
There are a number of misconceptions surrounding the ukuthwala practice one being that the practice is
a new phenomenon. This couldn’t be further from the truth as only a small body of academic research
existed before 2009 and much of this research focused on the romantic ukuthwala , akin to elopement
which entails a young girl giving consent and planning the abduction with her abductor. There are
however sources that provide rich insight into past practices of violent ukuthwala. Historians like
Elizabeth Thornberry explored sexual crimes and customs in colonial-era Eastern Cape.

6
The recognition of Customary marriages Act 120 of 1998 (RCMA) was enacted to recognize customary
marriages in accordance with South African’s Constitutional obligation and contains mandatory
requirements for a valid customary marriage. These requirements are:

1
Section 211(3) Constitution of South Africa
2
www.Justice.gov.za
3
Researchspace.ukzn.co.za
4
www.customcontested.co.ca
5
www.justice.gov.za
6
The Recognition of Marriages Act 120 of 1998
 7
I) The Prospective Spouses must both be above the age of 18 years; and
II) Must both consent to be married to each other under customary law; and
III) The marriage must be negotiated and entered into or celebrated in accordance with
customary law.
IV) If either of the Prospective Spouse is a minor, both his/her parents, or if he/she has no
parents, then his/ her legal guardians, must consent to the marriage
V) If a minor entered into a Customary Marriage without the written permission of the Minister
or the relevant Officer, the Minister or Officer may declare a marriage to be a valid
Customary Marriage if they consider the marriage to be desirable and in the best interest of
the parties in question

As it has already been established, the perpetrators who part take in the practice of ukuthwala
usually do so with the intent of forcing the abducted girl into marriage. It is important to note that
traditionally the families of both the bride(young girl/ woman) and the bridegroom need to give
consent to the union. 8Traditionally the Prospective Spouses would not part take in any sexual
activity during this period until the necessary traditions and rituals such as lobolas had been
performed.
9
The Constitution of the Republic of South Africa makes provisions for the protection of children,
specifically section 28 (1) (d) of the constitution which states that 10every child has a right to be
protected from maltreatment, neglect, abuse or degradation. Section 28 (2) which requires
11
consideration of the children’s interests in matters involving children or only affecting them. The court
has the power to consider the best interests of the minor child ex officio if the parents or those
supposed to safeguard the interests of the child fail to do so.

12
The children's act 38 of 2005 also makes provisions for the protection Of children’s right And there are
a number of rights that are violated by the practice of ukuthwala. These are the following rights which
are protected in the children’s act;
13
I) Section 1 of the Children’s act 38 of 2005 defines trafficking as in relation to a child as
including
a) The transportation, transfer, harboring or receipt of children, within or across the
borders of the Republic
(i) By any means, including the giving and receiving of payments or benefits
to achieve the consent of a person having control of a child;or
(ii) Due to a position of vulnerability, for the purpose of exploitation.

7
The Recognition of Customary Marriage Act 120 of 1998
8
www.Justice.gov.za
9
The Constitution of The Republic of South Africa Act 108 of 1996
10
Section 28 (1) (d) of the Constitution of The Republic of South Africa Act 108 of 1996
11
Section 28 (2) of the Constitution of the Republic of South Africa Act 108 of 1996
12
Children's Act 38 of 2005
13
Section 1 of the Children’s Act 38 of 2005
 14
II) Section 12 (1), which stipulates that every child has the right not to be subjected to social,
cultural and religious practices which are detrimental to his or her well-being.
15
III) Section 284 (1), Which prohibits child trafficking ;
16
IV) Section 284 (2) , which provides that it is no defense to a charge of contravening with
section 284(1) that the child or a person having control over that child consented to the
intended exploitation;
17
V) Section 305 subsection 1 which makes a contravention of section 284 subsection 1 an
offense
18
VI) Section 305 subsection 8 which provides that any person convicted of an offence in terms
of section305 subsection one is in addition to a sentence for Any other offence of which he
or she may be convicted, liable to a fine or imprisonment for a. Not exceeding 10 years or
both fine and Such imprisonment

There are also a number of statutory provisions in the sexual offences act which are relevant when
discussing the topic of the ukuthwala practice

I) 19Section 3 which defines the offence of rape

II) Section [I] which stipulates that 20there is not a valid defence to rape to rely on the existence of
marital or other relationship

III) Section 56 (8) Is the only limitation in relation to criminal liability and respect of the cultural
practices in the act and provides that 21 a person may not be convicted of an offence in terms of
section 9 or section 22 [exposing bodily parts] if that person commits such an act in compliance
with and in the interest of the legitimate cultural practice

Part six of the act contains the transitional provisions pertaining to trafficking in persons for sexual
purposes. These include the UN Convention on the elimination of all forms of discrimination against
women of 1979 and the UN Convention on the rights of the child 1989. as a member state South
Africa is applied to combat and ultimately eradicate abuse and violence against women and
children.

Section 70 (2)(b) Defines the offense of trafficking in similar terms with that contained in the
children's act; Section 70 (2)(b) Includes22 trafficking by means of the abuse of power or of position
of vulnerability, to the extent that the complainant is inhibited from indicating his or her
unwillingness or resistance to being trafficked
14
Section 12 (1) of the Children’s Act 38 of 2005
15
Section 284 (1) of the Children’s Act 38 of 2005
16
Section 284 (2) of the Children’s Act 38 of 2005
17
Section 305(1) of the Children’s Act 38 of 2005
18
Section 305 (8) of the Children’s Act 38 of 2005
19
Section 3 of the Sexual Offences Act 32 of 2007
20
Section 3 (1) of the Sexual Offences Act 32 of 2007
21
Section 56(8) of the Sexual offences Act 32 of 2007
22
Section 70 (2) (b) of the Sexual Offences Act 32 of 2007
Conclusion

It goes without second guessing that South Africa has come a long way, With that said that is very
sad that there are people who prey on Young vulnerable girls to fulfill the unlawful sexual desires
and actually commit such sexual acts with these young girls and use the ukuthwala practice as an
excuse or defence. There are still some villages which still have to go through such hardships but the
numbers are drastically dropping as more people are made aware of their rights. It brings joy and
hope to one knowing that the law is there and our rights are protected. It is also important to note
that the constitution is there to ensure that everyone is treated and protected equally by the law.