COMMENT Lea Mwambene and Roberta Mgidlana
In this short note we ask: What are the challenges of criminalizing ukuthwala in the protection of girls affected by the practice? Ukuthwala is a ‘romantic mock abduction’ of an unmarried woman by a man who intended to marry her.The intention is to force the girl’s family to enter into marriage negotiations which would otherwise not be possible. However, isolated reports of the current practices indicate that older men use the practice to target and abuse girls as young as 12 years of age. Furthermore, research has shown that several of the girls that are abducted feature harsh accounts of experiences of forced sex that are shockingly very distressing. In the rural parts of the country, ukuthwala has also been used to justify marrying off very young girls, with implications on the rights to privacy, equality, education, among others.
In view of this, the South African Law Reform Commission (SALRC) proposed a Bill which introduces an expanded crime of forced and child marriages, including as a result of ukuthwala. The Bill seeks to address breaches of ukuthwala in the following ways: The Bill criminalises both forced marriages and child marriages where there is: (i) force, (ii) lack of consent, and (iii) not compliant with the requirements to conclude a valid customary marriage provided under Recognition of Customary Marriages Act (RCMA).
(i) Force – In terms of the Bill, a person commits the offence of forced marriage if he or she uses violence, threats, or any other form of coercion for the purpose of causing another person to enter into a marriage. In the context of ukuthwala, research indicates that force and violence are an intrinsic part of the system. Indeed, the legitimacy of ukuthwala involves resistance from a woman as part of the process. Questions we ask include: At what point would this force be punishable? Also, how do you prove in which case resistance from the girl is legitimate and not part of the process of ukuthwala? Indeed, Bennett in 2004, observed, ‘it is far from easy to determine whether such a crime is committed – for the romantic charade required of the women to put up a show of resistance’.
(ii) Consent or rather lack of consent in the context of ukuthwala can be problematic. Our research established that a woman or girl running back to her family after having been abducted is part of the process. In such cases, there is an assumption that the girl has given consent when she is returned to her family. In the context of breaches of ukuthwala proposed in the Bill, at what point do you determine that consent has been given? How do you prove that this was full, free, and informed consent?
(iii) Compliance with RCMA means that the validity of ukuthwala should be determined in accordance with this Act. According to the RCMA, the requirement of age of spouses is easy to determine. However, research has shown that communities practicing ukuthwala reveal a severe lack of knowledge on the requirements to conclude a customary marriage provided under the RCMA. Questions that the communities asked during the focus group discussions include: ‘Do you hold someone accountable for laws that they do not know?’ ‘When did this law about the marriageable age of 18 passed’? However, ignorance of law is no defence.
In conclusion, research clearly shows a fundamental problem in how legitimate consent and force are understood by communities that practice ukuthwala. There is also a huge disparity between law reform and practice due to, inter alia, the communities’ lack of knowledge on the current legal framework regulating customary marriages (RCMA). If enacted, as we have argued elsewhere, the highlighted challenges may reduce the Bill into paper law. We therefore suggest that the deeply held beliefs and views of local communities must be seriously considered if attempts to protect girls from abuse, that comes with ukuthwala, are to succeed.
Lea Mwambene is a Professor of Law at University of the Western Cape, South Africa. Her research focuses mainly on African customary law and human rights.
Roberta Mgidlana is a student at the University of the Western Cape.
 Mofokeng L ‘Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law’ (2009), Van Schaik Publishers: Pretoria, page 57.
 Mwambene L and Sloth-Nielsen J ‘Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act’(2011) AHRLJ, page 4.
 Mwambene and Sloth-Nielsen (2011: 2); http://www.dailymaverick.co.za/article/2013-02-01-limpopo-child-bride-sold-into-marriage-kept-there-by-the-system/#.VxdeN_l97IU.
 Rice K, ‘Ukuthwala in Rural South Africa: Abduction Marriages as a Site of Negotiation about Gender, Rights and Generational Authority among the Xhosa’ 2014, Journal of Southern African Studies, 40:2, 381-399.
 Mwambene and Sloth-Nielsen (2011:2).
 Prohibition of Forced and Child Marriages Bill in the South African Law Reform Commission Revised Discussion Paper: The Practice of Ukuthwala 138, 2015 page 57.
 Field research in the Eastern Cape, 2015 and 2016.