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

Abstract

In 2014 the South African Law Reform Commission (SALRC) released a Discussion Paper on the practice of ukuthwala. The Discussion paper was revised and released again in 2015 to include public consultations and the proposed Prohibition of Forced Marriages and Child Marriages Bill (Prohibition Bill). The Prohibition Bill introduces an expanded crime of forced marriages and child marriages, including because of ukuthwala. In view of the SALRC's proposed Prohibition Bill, this paper investigates whether South Africa should criminalise ukuthwala or not. The paper also examines the advantages and disadvantages of criminalising breaches of ukuthwala in the protection of women and girls affected by the practice by drawing upon the field research findings from the community where the S v Jezile 2015 2 SACR 452 (WCC) case originated. Among other findings, the field research show that the practice of ukuthwala is deeply rooted in the communities where it is still prevalent to the extent that the approach taken by the Prohibition Bill, expecting the victims to report their own parents or family members to law enforcement agents, might force the practice to go underground. Ultimately, we suspect that this might make it more difficult to protect women and children's rights violations associated with ukuthwala. We therefore recommend that to effectively address the malpractices surrounding ukuthwala, the process of law reform look at the elements of ukuthwala, the procedure that is followed, appreciate the cultural significance of the practice, as well as understand the merits and demerits of the customary delictual claims that are already used by communities where processes of the practice have been breached. In this way, communities will be more receptive to any government's efforts that are aimed at addressing forced and child marriages linked to ukuthwala. In addition, we submit that unless government prioritises awareness campaigns into the communities that are going to be affected by the proposed law reform, such law, will again be what Himonga calls "paper law".