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




Ukuthwala , child marriage, forced marriage, Prohibition Bill; , South Africa, Children's Act, Domestic Violence Act, South African Law Reform Commission, girls, criminalise


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".


Download data is not yet available.


Metrics Loading ...

Author Biography

Roberta Hlalisa Mgidlana, LLB (UWC) LLM (Leiden University); LLM Candidate, University of the Western Cape.

This paper is based on the second author’s LLM unpublished thesis (University of the Western Cape).




An-Na'im A "Towards a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment" in An-Na'im A (ed) Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (University of Pennsylvania Press Philadelphia 1992) 1-16

Askari L "The Convention on the Rights of the Child: The Necessity of Adding a Provision to Ban Marriages" 1998 ILSA J Int'l & Comp L 123-138

Asomah J "Cultural Rights Versus Human Rights: A Critical Analysis of the Trokosi Practice in Ghana and the Role of Civil Society" 2015 AHRLJ 129-149

Banda F Women, Law and Human Rights: An African Perspective (Hart Oxford 2005)

Danial S "Cultural Relativism vs Universalism: Female Genital Mutilation, Pragmatic Remedies" 2013 Prandium: The Journal of Historical Studies 1-10

Diala J and Diala A "Child Marriage, Bridewealth and Legal Pluralism in Africa" 2017 Journal of Comparative Law in Africa 77-104

Diop M, Stewart P and Herr K "A Black African Feminist Theory to Examine Female Genital Mutilation (FGM) Within African Immigrant Families in the United States" unpublished contribution delivered at the National Council on Family Relations Annual Theory Construction and Research Methodology Workshop (14-15 November 2017 Orlando, Florida)

Durojaye E "The Human Rights Implications of Virginity Testing in South Africa" 2016 IJDL 228-246

Glover J et al "Persistence and Resistance of Harmful Traditional (HTPs) Perpetuated Against Girls in Africa and Asia" 2018 Journal of International Women's Studies 44-64

Grant I and Benedet J "Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law" 2019 Can Bar Rev 1-42

Heaton J and Kruger H South African Family Law 4th ed (LexisNexis Durban 2015)

Hendriks ML "Mandatory Reporting of Child Abuse in South Africa: Legislation Explored" 2014 SAMJ 550-552

Himonga C "African Customary Law and Children's Rights: Intersections and Domains in a New Era" in Sloth-Nielsen J (ed) Children's Rights in Africa: A Legal Perspective (Ashgate Burlington 2008) 73-90

Idang G "African Cultures and Values" 2015 Phronimon 97-111

Imoh A "Tackling the Physical Punishment of Children in Resource Poor Contexts" 2016 Int'l J Children's Rts 469-487

Karimakwenda N "Today It Would Be Called Rape: A Historical and Contextual Examination of Forced Marriage and Violence in the Eastern Cape" 2013 Acta Juridica 339-356

Kheswa J and Hoho V "Ukuthwala: The Sexual-Cultural Practice with Negative Effects on the Personality of Adolescent Females in Africa" 2014 MJSS 2808-2813

Koyana DS and Bekker JC "The Indomitable Ukuthwala Custom" 2007 De Jure 139-144

Maluleke MJ "Culture, Tradition, Custom, Law and Gender Equality" 2012 PELJ 1-22

Msuya N Harmful Cultural and Traditional Practices: A Roadblock in the Implementation of the Convention on the Elimination of Discrimination against Women and the Maputo Protocol on Women's Rights in Tanzania (PhD-thesis University of KwaZulu-Natal 2017)

Mubangizi J "A South African Perspective on the Clash Between Culture and Human Rights, with Particular Reference to Gender-Related Cultural Practices and Traditions" 2012 Journal of International Women's Studies 33-48

Mubangizi J "An Assessment of the Constitutional, Legislative and Judicial Measures Against Harmful Cultural Practices that Violate Sexual and Reproductive Rights of Women in South Africa" 2015 Journal of International Women's Studies 158-173

Mwambene L and Sloth-Nielsen J "Benign Accommodation? Ukuthwala, 'Forced Marriage' and the South African Children's Act" 2011 AHRLJ 1-22

Mwambene L and Kruuse H "The Thin Edge of the Wedge: Ukuthwala, Alienation and Consent" 2017 SAJHR 1-21

Nhlapo T "The African Customary Law Marriage and the Rights Conundrum" A Reading for the Course: LLM (Human Rights and Democratisation in Africa) (15 May 2012 Faculty of Law University of Pretoria)

Ntlokwana N Submissions to the SA Law Commission on Ukuthwala Custom (Centre for Constitutional Rights Cape Town 2009)

Nyami-Musembi C "Are Local Norms and Practices Fences or Pathways? The Example of Women's Property Rights" in An-Na'im A (ed) Cultural Transformation and Human Rights in Africa (Zed Books London 2002) 126-150

Oosthuizen T and Ngema NM "Ukuthwala: Structured for Relevance" 2010 Speculum Juris 84-102

Rautenbach C and Matthee J "Common Law Crimes and Indigenous Customs: Dealing with the Issues in South African Law" 2010 J Legal Plur 109-144

Reichert E "Human Rights: An Examination of Universalism and Cultural Relativism" 2006 Journal of Comparative Social Welfare 23-36

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 381-339

Smit WJ The Violent Re-Emergence of Abduction Marriage in Modern South Africa: Ukuthwala as a Diagnostic Event for Changing Marriage Practices and the Power of Discourse (LLD-thesis Raboud University Nijmegan 2017)

South African Law Reform Commission Discussion Paper 132, Project 138 - The Practice of Ukuthwala (SALRC Pretoria 2014)

South African Law Reform Commission Revised Discussion Paper 138, Project 138 The Practice of Ukuthwala (SALRC Pretoria 2015)

United Nations Supplement to the DAW/DESA Handbook for Legislation on Violence Against Women: Harmful Practices Against Women (United Nations New York 2011)

Vaezy L A Woman's Right to Culture: Toward Gendered Cultural Rights (Quid Pro Books New Orleans 2015)

Van Bueren G "Children's Rights: Balancing Traditional Values and Cultural Plurality" in Douglas G and Sebba L (eds) Children's Rights and Traditional Values (Ashgate Aldershot 1998) 15-30

Verkuyten M, Kumar Y and Adelman L "Intergroup Toleration and Its Implications for Culturally Diverse Societies" 2019 Social Issues and Policy Review 5-35

Case law

South Africa

Mohale v S 2019 2 SACR 666 (GP)

Mthimunye v S 2017 JOL 39057 (GP)

Rex v Swartbooi 1916 EDL 170

S v Jezile 2015 2 SA 62 (WCC)

S v Sheldon-Lakey 2016 2 SACR 632 (NWM)


Mudzuru v Ministry of Justice, Legal and Parliamentary Affairs 2015 ZWCC 12 (20 January 2016)


Children's Act 38 of 2005

Constitution of the Republic of South Africa, 1996

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015

Domestic Violence Act 116 of 1998

Marriage Act 25 of 1961

Prevention and Prohibition of Trafficking in Persons Act 7 of 2013

Recognition of Customary Marriages Act 120 of 1998

Government publications

Prohibition of Forced Marriages and Child Marriages Bill, 2015

International instruments

African Charter on the Rights and Welfare of the Child (1990)

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962)

Convention on the Elimination of All Forms of Discrimination Against Women (1979)

International Covenant on Economic, Social and Cultural Rights (1966)

International Covenant on Civil and Political Rights (1966)

Protocol the African Charter on Human and People's Rights on the Rights of Women in Africa (2003)

Southern African Development Community Gender Protocol (2008)

Universal Declaration of Human Rights (1948)

Vienna Declaration and Programme of Action (1993)

Internet sources

Proudman 2014


Proudman C 2014 The Criminalisation of Forced Marriage accessed 24 May 2021

Yes Media 2017

Yes Media 2017 Engcobo Local Municipality: Geography, History and Economy accessed 17 March 2017



How to Cite

Mwambene, L., & Mgidlana, R. H. (2021). Should South Africa Criminalise Ukuthwala Leading to Forced Marriages and Child Marriages?. Potchefstroom Electronic Law Journal, 24, 1–27.