Ukuthwala Custom

10402 Words Aug 24th, 2012 42 Pages
Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act

Lea Mwambene and Julia Sloth-Nielsen(

Abstract

In this article, we evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, preliminary to a customary marriage, a young man, by force, takes a girl to his home. Questions arise relating to the impact of constitutional principles upon customary law and practice. It is suggested that instead of a prohibitionist stance towards customs that seem to violate human rights norms, a benign accommodation of aspects that promote the positive aspects of culture be adopted. This approach leads to a conclusion that South African law should recognise those forms
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The main aim of ukuthwala is to force the girl’s family to enter into negotiations for the conclusion of a customary marriage.[18] (Underlining supplied).

The procedure for ukuthwala is as follows: The intending bridegroom, with the help of the one or two friends, will waylay the intended bride in the neighbourhood of her own home, quite often late in the day.[19] They will then ‘forcibly’ take her to the young man’s home. Sometimes the girl is caught unawares, but in many instances she is caught according to prior plan and agreement. In either case, the girl will put up a show of resistance to suggest to onlookers that it is against her will, when in fact, it is seldom so. As Bekker

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