Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act

Abstract

In this article, we evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, as a preliminary procedure to a customary marriage, a young man forcibly takes a girl to his home. In recent times, the practice has taken on other dimensions, including very young girls being married to older men and charges of abduction being laid. Questions arise relating to the impact of constitutional principles upon this customary law and practice. It is suggested that instead of adopting an a priori prohibitionist stance towards customs that seem to violate human rights norms, benign accommodation of aspects that promote the positive aspects of culture be sought. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of the consent of the ‘bride’ is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children’s Act 38 of 2005 are framed in this context.