The customary law practice of ukuthwala – an antithesis in the South African constitutional order

Jokani, Mkhuseli Christopher

Title: The customary law practice of ukuthwala – an antithesis in the South African constitutional order
Creator: Jokani, Mkhuseli Christopher
Subject: Customary law -- South Africa
Subject: Culture -- Legal status, laws, etc -- South Africa Forced marriage -- Legal status, laws, etc -- South Africa Teenage marriage -- South Africa -- Eastern Cape Xhosa (African people) -- Law and legislation -- Social life and customs
Date Issued: 2018
Date: 2018
Type: Thesis
Type: Doctoral
Type: LLD
Identifier: http://hdl.handle.net/10948/22474
Identifier: vital:29973
Description: The concept of ukuthwala is an age-old customary marriage practice prevalent amongst the Nguni speaking tribes of South Africa. It is a practice whereby, preliminary to a customary marriage, a young man, by force, takes a girl to his home. The SABC and E-tv evening television news coverage of 15th March 2009 reported the prevalence of forced and child marriages of young girls with elderly men in the East Pondoland of the Eastern Cape. The question arose as to whether the custom of ukuthwala could be justified as a legitimate cultural practice in the context of a modern constitutional democracy because some view it as an outdated customary practice that targets girl children, while others view it as a legitimate cultural practice. Since ukuthwala cannot be treated as a unitary phenomenon, variants of the practice must be distinguished. The thesis reveals that there are three variants of ukuthwala, which are ukuthwala ngemvumelwano, ukuthwala kobolawu and ukuthwala okungenamvumelwano. The thesis concludes by drawing a distinction between ukuthwala, forced marriage and child marriage. It proposes that ukuthwala in its traditional form is not synonymous with forced marriage and child marriage. The thesis poses the following main legal questions, namely: does the South African criminal jurisprudence criminalise ukuthwala, and if so, on what charges are perpetrators tried; and how is the inherent conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution, resolved? The thesis responds to these questions as follows. Firstly, it is suggested that ukuthwala in itself is not a formally defined crime, but a customary law practice resorted to by the prospective suitor to force the parents of the young woman into marriage negotiations. However, in recent times the practice has been abused and distorted which borders on the commission of a criminal offence and the violation of the young woman’s human rights. The criminal offences that are committed because of the distorted form of ukuthwala are both in terms of the common and statutory laws of South Africa. The thesis suggests that those found guilty of committing a crime under the pretext of customary law practice of ukuthwala should be punished. South Africa has a number of statutory as well as common law provisions, which can be used to prosecute those found to have committed offences. South Africa does not need to outlaw and criminalise ukuthwala in its entirety but does need to distinguish between the distorted and the traditional forms of ukuthwala. The thesis responds to the second main question as follows. Firstly, the violation of the young woman’s human rights brings to the fore a conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution. The thesis makes a distinction between the three variants of ukuthwala customary practices and concludes that ukuthwala ngemvumelwano is the most acceptable form because it takes place when there is mutual consent between parties. It further proposes that the positive elements within the customary law practice of ukuthwala must be developed and promoted provided that they are consistent with the provisions of the Constitution. However, the negative elements that conflict with provisions of the Constitution should be done away with. The thesis suggests that the latter approach is important to addressing the conflict between ukuthwala customary practice and the Bill of Rights. The thesis concludes by suggesting that the distorted form of subjecting young women and girl children into forced marriages under the pretext of the customary law practice of ukuthwala are unconstitutional and cannot be justified in terms of sections 30 and 31 of the Constitution. Therefore, ukuthwala customary law practice is not free from criticism if one considers the two variants of ukuthwala where there has been no consent from one of the parties concerned. A comparative analysis is undertaken with selected Southern African Development Community countries to establish similarities in practices related to ukuthwala and how the consequent contradictions between customary law and common law have been dealt with. The thesis concludes that ukuthwala is a unique South African customary practice that is different from other customary practices in some selected jurisdictions. Therefore, the comparative analysis has helped in identifying how poverty perpetuates the different but related, customary law practices across the selected jurisdictions. Therefore, in order for Mother Africa to adequately respond to the harmful traditional practices there is a need to address the socio-economic issues particularly in the rural parts of Africa. The harmful traditional practices seem to be more common in the rural parts of the selected jurisdictions rather than in urban and semi-urban areas. The lesson learnt is that social development should have a particular bias towards the rural areas of Africa. The findings, amongst others, are that ukuthwala in its traditional form is a legitimate customary law practice which was often resorted to when obstacles arose in order to force the parents of the young woman to negotiate marriage. Ukuthwala is not synonymous with forced and early marriages. The thesis recommends that South Africa does not need to outlaw ukuthwala despite the fact that it has now been abused and distorted. It is argued that there are sufficient statutory and common laws to respond to the scourge of distorted versions of ukuthwala in South Africa. The thesis recommends that South Africa with its plural legal system should highlight the supremacy of the Constitution aligned with international human rights standards to avoid conflict in legal interpretation and implementation. It is hoped that this will assist in the implementation of the positive aspects of African customary law within the legal system and will remove the negative elements that infringe on the rights of women and children. It is recommended that it would be useful to pursue non-legislative measures to deal comprehensively with the causes of ukuthwala and its consequences by investing in education, training and awareness raising campaigns among sectors of society, most importantly rural people. Education, when employed, should not be an event but a process that will start at school level and extend to post-university. The emphasis should be on the inclusion of gender studies from early grades to undo the mentality of male superiority and entrench an equality attitude between boys and girls from a very early age. The reason for this suggestion is that attitudes manifested in our society always portray girls and women as being weak and therefore not equal to boys and men. It is important to ensure that role-players in the fight against gender-based violence are adequately trained to equip them to handle these cases properly. These role-players include South African Police Service members, National Prosecuting Authority, Judiciary and Non-Governmental Organisations to mitigate secondary victimisation of victims of these distorted cultural practices.
Format: xix, 312 leaves
Format: pdf
Publisher: Nelson Mandela University
Publisher: Faculty of Law
Language: English
Rights: Nelson Mandela University

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