Harmful Traditional Practices: A look at the customary law practice of “Ukuthwala” and the law in South Africa

The Concept of “Ukuthwala”
The South African customary practice “Ukuthwala” has become a serious issue amongst South Africans due to its deviation from its original concept. Its deviation has become a concern not only amongst the Nguni communities but in South Africa as a whole. The way it has affected South Africans, one could wonder whether the practice should be seen as a harmful practice.

Ukuthwala is a custom practised in Nguni communities. In South Africa, the custom originated from the Xhosa culture. Although the custom is predominantly practised among Xhosa-speaking tribes, the practice has expanded into other ethnic groups. For example, the Mpondo clan has adopted ukuthwala from Xhosa clans, as well as young Sotho men.

The word ukuthwala literally means “to carry”. Some authors have described ukuthwala as the act of stealing the bride. A man that intended to be a bridegroom, together with one or two friends, would approach the intended bride later in the day and they would forcibly take her to the intended bridegroom’s home. Sometimes the girl would be unaware of the groom’s intentions, but in many instances it would be according to a plan and agreement between her parents and the groom’s parents for her to be caught. On the same day the girl was thwalaed, those who effected the ukuthwala custom were required to report to the girl’s home to assure her parents that the girl was safe and was with them.

Ukuthwala has also been described as a mock abduction or irregular proposal aimed at achieving a customary marriage. Note that the word irregular does not mean unlawful.

The purpose of ukuthwala is to negotiate a marriage, not conclude it, and sexual intercourse is customarily not the intention.

The following are forms of ukuthwala:

  • Where a girl is aware of the intended abduction and the parties collude. The ‘force’ used in the act of abduction is therefore for the sake of performance only. In this type of ukuthwala, the girl gives consent. If after ukuthwala has taken place, the parents of the girl refuse to give consent, there cannot be a valid ensuing customary marriage.
  • Where families would agree on the intended union, but the girl is unaware of such agreement. This often occurs when the girl is not happy with the parent’s choice. Or the girl happens to be of a high rank.
  • Where the custom occurs against the will of the bride. Here there is no initial consent from either the girl or her parents. She is taken by force. In this form of ukuthwala, the bride is unwilling and therefore the intended marriage would be a forced marriage.

Current position/deviation
The practice is no longer the same. It reportedly includes very young girls being married to older men and charges of abduction being laid. Girls are sometimes forced to drop out of school to follow this traditional custom.

Ukuthwala is an old custom that is now being misused and exploited in several parts of the eastern Transkei. The abduction of girls of 12 or 13 years is not standard cultural practice. It is no longer ukuthwala, but merely an act of child abuse. Ukuthwala has changed drastically. Young girls are forced to marry older men, including relatives of the girl, kidnapping and taking the girls for themselves as their wives without such abductions being reported to the Traditional Authorities.

In the community’s view, this practice is harmful because it forcibly takes their children against their will, violates their rights and also degrades, traumatises and robs them from their childhood.

Due to this customary deviations a number of cases, including kidnapping, abduction and rape have been reported has resulted from it.

Legal issues
Sections 30 and 31 of the Constitution states that everyone has the right to participate in the cultural life of their choice and that no one may be denied the right to enjoy such culture. But, every right in the Constitution is subject to limitation in terms of Section 36. Irrespective of the limitation, this practice violates basic Constitutional values.

This practice mainly affects children and in Sv Manamela 2000(5) BCLR 491 (CC) it was held that the State was under a Constitutional obligation to take measures to diminish the amount of public and private violence in society, with aim of protecting children from maltreatment, abuse and degradation.

Christian Education South Africa v Minister of Education 108 of 1996 is indicative of the Constitutional Court’s commitment to uphold the dignity of children and that children are of paramount importance as a vulnerable group and to protect children from practices which have the potential to violate their dignity.

However, getting married without voluntary informed consent alone is regarded as a harmful practise according to the Maputo Protocol and the UN Charter on Human Rights. The Children’s Act similarly provides that every child has the right not to be subjected to social, cultural and religious practices that are detrimental to their well-being. The Customary Marriages Act also requires parties to be at least 18 years and to consent to marriage

by Avela Makunga