Peer-reviewed article

Should South Africa Criminalise Ukuthwala Leading to Forced Marriages and Child Marriages?

Lea Mwambene, Roberta Hlalisa Mgidlana · 4 Oct 2021

Abstract

In 2014 the South African Law Reform Commission (SALRC)released a Discussion Paper on the practice of ukuthwala. TheDiscussion paper was revised and released again in 2015 toinclude public consultations and the proposed Prohibition ofForced Marriages and Child Marriages Bill (Prohibition Bill). TheProhibition Bill introduces an expanded crime of forcedmarriages and child marriages, including because of ukuthwala.In view of the SALRC's proposed Prohibition Bill, this paperinvestigates whether South Africa should criminalise ukuthwalaor not. The paper also examines the advantages anddisadvantages of criminalising breaches of ukuthwala in theprotection of women and girls affected by the practice by drawingupon the field research findings from the community where theS v Jezile 2015 2 SACR 452 (WCC) case originated. Amongother findings, the field research show that the practice ofukuthwala is deeply rooted in the communities where it is stillprevalent to the extent that the approach taken by the ProhibitionBill, expecting the victims to report their own parents or familymembers to law enforcement agents, might force the practice togo underground. Ultimately, we suspect that this might make itmore difficult to protect women and children's rights violationsassociated with ukuthwala. We therefore recommend that toeffectively address the malpractices surrounding ukuthwala, theprocess of law reform look at the elements of ukuthwala, theprocedure that is followed, appreciate the cultural significance ofthe practice, as well as understand the merits and demerits ofthe customary delictual claims that are already used bycommunities where processes of the practice have beenbreached. In this way, communities will be more receptive to anygovernment's efforts that are aimed at addressing forced andchild marriages linked to ukuthwala. In addition, we submit thatunless government prioritises awareness campaigns into thecommunities that are going to be affected by the proposed lawreform, such law, will again be what Himonga calls "paper law".