Authored By: Minentle Beswa
University of Zululand
ABSTRACT
The phenomenon of ukuthwala, a customary practice often defended as cultural tradition, has evolved into a mechanism that undermines women’s dignity, autonomy, and equality in South Africa. This article examines how the contemporary manifestation of ukuthwala, particularly its aberrant forms, perpetuates violence against women and children under the guise of cultural preservation. Through critical analysis, this work exposes the hijacking of traditional practice by patriarchal ideologies and demonstrates the urgent need for legal reform and enhanced protection of women’s rights. The article argues that while cultural practices deserve respect, they cannot supersede constitutional guarantees of human dignity and equality.
INTRODUCTION
In South Africa, countless women and children continue to suffer under the shadow of a practice called ukuthwala (abduction).[^1] What was once a symbolic and culturally accepted practice in the Eastern Cape and KwaZulu-Natal[^2] has devolved into violence against young girls and women.[^3] The contemporary manifestation typically involves an older man, often with assistance from friends or family, kidnapping a girl as young as 12 years of age to pressure her family into marriage negotiations.[^4] This represents a stark departure from the original intent of ukuthwala, which was meant to be a culturally sanctioned path to marriage for couples facing familial opposition.[^5]
However, the current practice bears little resemblance to its historical context.[^6] It has become a brutal practice involving kidnapping, sexual assault, human trafficking, and gender-based violence.[^7] The victims, often minors, are silenced and coerced into marriages, subjected to domestic servitude, and forced to endure unimaginable trauma.[^8]
The Gender Directorate apprised the South African Law Reform Commission (SALRC) of the suffering experienced by women and children due to the custom of ukuthwala. Their rights to personal safety and welfare are being infringed, placing them at risk of lifelong developmental challenges, including HIV infection and other physical, emotional, and social difficulties.[^9]
Cultural justifications for certain practices often come into conflict with internationally recognized human rights principles, such as those embodied in the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). These instruments affirm fundamental rights to equality, dignity, and autonomy, particularly for women and girls.[^10] Globally, the statistics are stark: approximately 12 million girls are married before the age of 18, and the United Nations estimates that over 200 million women and children have undergone female genital mutilation, highlighting the widespread nature of these human rights violations. The tension between cultural practices and universal human rights principles underscores the need for ongoing dialogue and efforts to promote and protect the rights of vulnerable populations.[^11]
This article examines how the tradition of ukuthwala constitutes a violation of the human rights and dignity of women and children. Ukuthwala is not merely a contravention of the Constitution but a deeply ingrained system of patriarchal oppression that perpetuates violations of women’s rights, silencing their voices and denying them fundamental human rights and opportunities.[^12] This harmful practice, disguised as culture, must be abolished, for cultural heritage should uplift and empower women, not perpetuate their subordination. It is imperative that we acknowledge the devastating impact of ukuthwala on the lives of women and children.
LEGAL FRAMEWORK
The Gender Directorate emphasized that South Africa’s values, beliefs, and practices must align with the Constitution of the Republic of South Africa, which explicitly safeguards children’s rights.[^13] The Constitution encompasses the following relevant sections: 29, 28, 12, 10, 9, 30, and 31.
Section 9 (Equality): This section is particularly relevant because ukuthwala mainly harms girls and women, raising serious concerns about gender inequality. The Constitution guarantees everyone the right to equality, which is clearly violated when a girl is forced into marriage.
Section 10 (Dignity): This provision establishes that forcing someone into marriage or abducting them violates their basic human dignity.
Section 12 (Freedom and Security of the Person): This section protects people from violence, prohibits unlawful detention, and ensures the right to bodily integrity and freedom. The abduction aspect of non-consensual ukuthwala directly infringes on these rights.
Section 28 (Children’s Rights): The Constitution emphasizes that a child’s best interests are paramount in all matters affecting them. When ukuthwala involves minors under 18, it often contravenes the Children’s Act and amounts to child marriage, a practice widely recognized as harmful.
Section 29 (Education): The minor child may be expected to assume the role of wife, dropping out of school and losing access to education, healthcare, and childhood development opportunities.
Sections 30 and 31 (Cultural and Religious Rights): These sections protect the right to participate in cultural practice and recognize customary law, but these rights are not absolute. They are subject to the condition that they cannot be exercised in a way that infringes on the Bill of Rights.
Despite the Constitution and all other policies that have been developed, the rate of abduction for customary marriages continues, often failing to comply with implemented policies.[^14]
STATUTORY FRAMEWORK
Prevention and Combating of Trafficking in Persons Act 7 of 2013:[^15] This Act addresses striking parallels that exist between ukuthwala and human trafficking, as exemplified in the case of S v Jezile, where victims are often transported from rural areas to urban centers to be subjected to exploitation and abuse.
Children’s Act 38 of 2005:[^16] Section 12(1) and (2) state that every child has the right not to be subjected to social, cultural, and religious practices that are detrimental to his or her well-being. Subsection 2 sets the minimum age for marriage and requires consent from both parties.
Criminal Procedure Act 51 of 1977:[^17] This Act provides a framework for prosecuting crimes related to ukuthwala, enabling law enforcement to investigate and prosecute perpetrators.
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000:[^18] This legislation prohibits unfair discrimination, particularly on the grounds of gender, and bans traditional practices that undermine women’s dignity and perpetuate inequality.
JUDICIAL INTERPRETATION
The landmark case of S v Jezile[^19] highlighted the issue of ukuthwala, where the court ruled that custom cannot justify violating constitutional rights. Mvumeleni Jezile was convicted of rape, human trafficking, and assault for abducting and harming a 14-year-old girl, demonstrating that no cultural practice can supersede the Constitution and Bill of Rights.
In Bhe and Others v Magistrate, Khayelitsha,[^20] the Constitutional Court established that customary law must comply with the Constitution, reinforcing the principle of gender equality. This principle guides modern legal analysis of ukuthwala.
The silencing of women’s voices has been a persistent issue globally, with patriarchal systems often favoring men.[^21] As a result, women struggle to express their concerns and challenge the injustices they face, highlighting the need for greater empowerment and equality. Research indicates that the disempowerment of women in South African society is largely fueled by patriarchal systems, which often amplify the detrimental effects of harmful cultural customs. In many societies, patriarchy and cultural norms are deeply intertwined, with men typically expected to assume leadership roles in family and society, while women are expected to be submissive and obedient.[^22]
This entrenched system perpetuates the restriction of women’s agency and autonomy, often through cultural practices such as traditional marriage customs. As a result, women frequently find themselves trapped in situations where societal structures and cultural expectations disregard their needs, silence their voices, and systematically perpetuate human rights abuses, highlighting the need for transformative change to promote gender equality and empower women.[^23]
CONSTITUTIONAL CONCERNS
South Africa’s Constitution is widely admired and considered one of the best in the world, largely due to its inclusivity in promoting and protecting individual and community rights, including freedom of culture, religion, and language. This human rights-focused Constitution is a cornerstone of the country’s democracy. However, in reality, human rights observance is often lacking, particularly at the community level. The practice of ukuthwala has gained significant media attention, sparking intense debate. While some view it as a human rights abuse, others defend it as a cultural right.
This contested practice is perceived differently by various groups: some see it as a symbolic tradition, others as a customary practice, and many as a clear human rights violation. The differing perspectives highlight the complexities surrounding ukuthwala, making it a pressing issue that requires careful consideration and attention.[^24]
The Constitution acknowledges that South Africa is a diverse society, comprising various cultures and communities. It ensures that individuals have the right to engage in and enjoy their preferred culture, as well as participate in cultural activities of their choice. Nevertheless, these rights are not absolute and must be exercised in a manner consistent with the provisions of the Bill of Rights.[^25]
The right to cultural expression often conflicts with other rights, leading to tension and disputes. Since the Constitution does not provide clear guidance on whether certain rights take precedence over cultural rights, these conflicts can be challenging to resolve.[^26] The South African Law Reform Commission (SALRC) has examined the balance between individual and group rights, particularly in relation to children, and concluded that the Constitution acknowledges the significance of customary law for many South Africans. The Commission recognized the importance of customary law and practices for a substantial portion of the population but also notes that these practices must align with the Constitution’s principles.
Given the paramount importance of the best interests of the child principle and the individualistic nature of human rights protection, it is likely that an individual child’s rights would supersede cultural or religious rights in cases where they conflict. This approach prioritizes the well-being and protection of vulnerable individuals, particularly children, while still acknowledging the value of cultural and customary practices.[^27]
REFORM PROPOSALS
The aberrant form of ukuthwala is a pressing concern in South Africa and other African countries, perpetuating patriarchal ideologies that reinforce male dominance and female subjugation. This custom is often used to justify violence against women and children, violating their fundamental human rights and dignity. The social structure in many African rural areas concentrates power in the hands of adult men, relegating women and children to subordinate positions.[^28] This imbalance is perpetuated through institutions like family, religion, and cultural traditions, casting men as authoritative and rational while women are seen as weak and submissive.[^29]
This distorted version of ukuthwala should be subject to comprehensive reform, as it contravenes the Constitution and the Bill of Rights. It serves as a guise for perpetuating gender-based violence, discriminating against women’s rights, and perpetuating oppression. This practice is a stark reminder that without vigilant enforcement of constitutional protections, women’s equality remains vulnerable, their voices silenced, and their autonomy stifled.
CONCLUSION
The practice of ukuthwala in South Africa demands urgent attention and action. This practice, often shrouded in the guise of cultural tradition, has affected the lives of young girls, depriving them of their childhood, dignity, and fundamental human rights. The Constitution, a beacon of hope for equality and justice, unequivocally condemns such practices, yet they persist, perpetuating a cycle of violence, inequality, and injustice.
The courts have spoken, affirming that cultural practice cannot supersede the Bill of Rights. It is time for society to listen and act. We must dismantle the patriarchal structures that entrench inequality, silence women’s voices, and perpetuate harm. We must challenge the cultural norms that justify the exploitation and abuse of vulnerable individuals, and we must stand united in protecting the rights and dignity of every individual, particularly children and women.
The future of the nation depends on recognizing that cultural practices must evolve to align with constitutional values. The time for meaningful reform and robust enforcement is now.
BIBLIOGRAPHY
Primary Sources
Legislation
Constitution of the Republic of South Africa, 1996
Prevention and Combating of Trafficking in Persons Act 7 of 2013
Children’s Act 38 of 2005
Criminal Procedure Act 51 of 1977
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
South African Law Reform Commission Act 19 of 1973
Case Law
S v Jezile and Others (A 127/2014) [2015] ZAWCHC (WCC)
Bhe and Others v Khayelitsha Magistrate and Others (CCT49/03) [2004] ZACC (CC)
Secondary Sources
Journal Articles
Ahmed, S. and Khan, S. “Cultural Justifications for Female Genital Mutilation: A Human Rights Perspective” (2023) 15(3) International Journal of Women’s Studies 623-650
Ayanga, Hazel O. “Voice of the Voiceless: The Legacy of the Circle of Concerned African Women Theologians” (2016) 37(2) Verbum et Ecclesia 1-6
Bunting, L. and Stevenson, P. “Child Marriage and Its Impact on Women’s Education and Empowerment” (2024) 46(1) Human Rights Quarterly 25-48
Ifecholobi, J. “Feminism: Silence and Voicelessness as Tools of Patriarchy in Chimamanda Adichie’s Purple Hibiscus” (2014) 8(4) African Research Review 17-27
Jakel, F. “Cultural Practices and the Violation of Women’s Rights: A Cross-Cultural Comparison of Honor Killings and Their Legal Treatment” (2017) 21(2) International Journal of Human Rights 190-208
Kalra, Gurvinder and Dinesh Bhugra “Sexual Violence Against Women: Understanding Cross-Cultural Intersections” (2013) 55(3) Indian Journal of Psychiatry 244-249
Kisitu, G. and Siwila, L. “Whose Body, Whose Language? A Feminist Critique of the Construction of Discourses on a Woman’s Body in African Religious Spaces and Its Effect on Well-Being” (2016) 23(2) Alternation Journal 185-200
Korte, D. and Singh, P. “Cultural Justifications for Sexual Exploitation: A Human Rights Critique” (2023) 79(5) Journal of Social Issues 738-754
Rice, Kathleen “Understanding Ukuthwala: Bride Abduction in the Rural Eastern Cape, South Africa” (2018) 77(3) African Studies 394-411
Rice, Kate “Ukuthwala in Rural South Africa: Abduction Marriage as a Site of Negotiation About Gender, Rights and Generational Authority Among the Xhosa” (2014) 40(2) Journal of Southern African Studies 381-399
Sekweyiya, Y., Addo-Lartey, A. and Alangea “Patriarchy and Gender-Inequitable Attitudes as Drivers of Intimate Partner Violence Against Women in the Central Region of Ghana” (2020) 20(682) BMC Public Health 1-11
Books
Bennett, T.W. Human Rights and African Customary Law (Juta 1995)
Murphy, R. Rationality and Nature: A Sociological Inquiry into a Changing Relationship (Routledge 2018)
Reports and Other Materials
Condit, Sara “Child Marriage: Ukuthwala in South Africa” (2011) Genderacrossborders.com
Dixon, Robyn “Bride Abductions a ‘Distortion’ of South Africa’s Culture” Los Angeles Times (2012)
Karimakwenda, Nyasha “Rethinking Ukuthwala, the South African ‘Bride Abduction’ Custom” (2021)
Legal Resource Centre “Traditional Practices May Be Harmful: Xingwana” (2014)
South African Law Reform Commission Report on the Practice of Ukuthwala (2014)
South African Law Reform Commission Report on the Review of the Child Care Act (Project 110, 2002)
[^1]: Ifecholobi, J. “Feminism: Silence and Voicelessness as Tools of Patriarchy in Chimamanda Adichie’s Purple Hibiscus” (2014) 8(4) African Research Review 17-27.
[^2]: Condit, Sara “Child Marriage: Ukuthwala in South Africa” (2011) Genderacrossborders.com.
[^3]: Legal Resource Centre “Traditional Practices May Be Harmful: Xingwana” (2014).
[^4]: Karimakwenda, Nyasha “Rethinking Ukuthwala, the South African ‘Bride Abduction’ Custom” (2021).
[^5]: Dixon, Robyn “Bride Abductions a ‘Distortion’ of South Africa’s Culture” Los Angeles Times (2012).
[^6]: Kisitu, G. and Siwila, L. “Whose Body, Whose Language? A Feminist Critique of the Construction of Discourses on a Woman’s Body in African Religious Spaces and Its Effect on Well-Being” (2016) 23(2) Alternation Journal 185-200.
[^7]: Rice, Kathleen “Understanding Ukuthwala: Bride Abduction in the Rural Eastern Cape, South Africa” (2018) 77(3) African Studies 394-411.
[^8]: Rice, Kate “Ukuthwala in Rural South Africa: Abduction Marriage as a Site of Negotiation About Gender, Rights and Generational Authority Among the Xhosa” (2014) 40(2) Journal of Southern African Studies 381-399.
[^9]: South African Law Reform Commission Report on the Practice of Ukuthwala (2014).
[^10]: Jakel, F. “Cultural Practices and the Violation of Women’s Rights: A Cross-Cultural Comparison of Honor Killings and Their Legal Treatment” (2017) 21(2) International Journal of Human Rights 190-208.
[^11]: Ahmed, S. and Khan, S. “Cultural Justifications for Female Genital Mutilation: A Human Rights Perspective” (2023) 15(3) International Journal of Women’s Studies 623-650.
[^12]: Ayanga, Hazel O. “Voice of the Voiceless: The Legacy of the Circle of Concerned African Women Theologians” (2016) 37(2) Verbum et Ecclesia 1-6.
[^13]: South African Law Reform Commission Report on the Practice of Ukuthwala (2014).
[^14]: Constitution of the Republic of South Africa, 1996.
[^15]: Prevention and Combating of Trafficking in Persons Act 7 of 2013.
[^16]: Children’s Act 38 of 2005.
[^17]: Criminal Procedure Act 51 of 1977.
[^18]: Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
[^19]: S v Jezile and Others (A 127/2014) [2015] ZAWCHC (WCC).
[^20]: Bhe and Others v Khayelitsha Magistrate and Others (CCT49/03) [2004] ZACC (CC).
[^21]: Kalra, Gurvinder and Dinesh Bhugra “Sexual Violence Against Women: Understanding Cross-Cultural Intersections” (2013) 55(3) Indian Journal of Psychiatry 244-249.
[^22]: Korte, D. and Singh, P. “Cultural Justifications for Sexual Exploitation: A Human Rights Critique” (2023) 79(5) Journal of Social Issues 738-754.
[^23]: Bunting, L. and Stevenson, P. “Child Marriage and Its Impact on Women’s Education and Empowerment” (2024) 46(1) Human Rights Quarterly 25-48.
[^24]: South African Law Reform Commission Act 19 of 1973.
[^25]: South African Law Reform Commission Act 19 of 1973.
[^26]: Bennett, T.W. Human Rights and African Customary Law (Juta 1995) 28.
[^27]: South African Law Reform Commission Report on the Review of the Child Care Act (Project 110, 2002) 283.
[^28]: Sekweyiya, Y., Addo-Lartey, A. and Alangea “Patriarchy and Gender-Inequitable Attitudes as Drivers of Intimate Partner Violence Against Women in the Central Region of Ghana” (2020) 20(682) BMC Public Health 1-11.
[^29]: Murphy, R. Rationality and Nature: A Sociological Inquiry into a Changing Relationship (Routledge 2018).
