Too Young to Consent, but Old Enough to Marry? Reconciling the Legal Schism between SORMA and the Marriage Bill.

Abstract.

Globally, international law and the preservation of cultural heritage frequently find themselves at odds. This once led to the United Nations General Assembly calling upon states to abolish harmful customs, laws and practices. To achieve this, States were requested to eliminate Child Marriages and the betrothal of young girls before the age of puberty and establish penalties where necessary. The Republic of South Africa inherited it current minimum ages for marriage from Roman-Dutch common law and canonical traditions.

The minimum ages for marriage in the land have sparked controversy in the South African legal community so much so the South African Law Reform Commission drafted a Prohibition of Forced and Child Bill. The Bill forms part of a discussion paper published by the Commission. The Commission had been instructed by the Gender Directorate to investigate the impact of the practice of ukuthwala on the girl child when it formulated The Bill. The Bill was never enacted, but it has made a profound impact and found academic commentary.

As of 2026, the Legislature is in the process of enacting the Marriage Bill which seeks to remedy the issue of Child Marriages and forced marriages altogether. This article seeks to expose an inconsistency between the minimum ages required for marriage as set in the South African matrimonial law, and the age of sexual consent as set in the Criminal Law: The Sexual Offences and related Matters Amendment Act (SORMA). The Article will critically analyze the Marriage Bill as a remedy thereafter.

1. The Schism between SORMA and Matrimonial Law.

In South Africa, the minimum age required for a person to have the capacity to consent to sexual acts is 16 years of age.[1] Any sexual conduct with a child below the age of 16 is an offence.[2] This does not apply to instances where firstly, if the accused is above the age of 12 but under the age of 16, and secondly, if the ‘accused’ is 16 or 17 years of age and the age difference between him or her and the ‘victim’ is not more than 2 years at the time of commission.[3] While this is so, valid Child Marriages are provided for by the Marriage Act,[4] the Recognition of Customary Marriages Act,[5] and Children’s Act.[6] On the ground, the statistics regarding registered Child Marriages were confirmed by the Department of Social Development where it was said that Dr Seble Worku, Stats SA’s Director, recorded 207 child marriages. It was also said that of the 207 marriages, 188 were brides and 19 were grooms.[7]

The question that arises is then whether conduct that would constitute a crime in one instance, is legitimised in another instance. It is trite in our law that what flows from marriage is an ‘‘expectation’’ of sexual performance. Such performance accrues spouses at marriage in the consortium of their union. In Grobbelaar v Havenga, consortium is described as “an abstraction comprising the totality of a number of rights, duties and advantages accruing to spouses of a marriage.” And from it flows “Companionship, love… sexual intercourse.”[8] Though not an actionable right, sexual performance remains an expected consequence of marriage.[9] It is must be noted that marital rape is a recognised criminal offence, however not much is said with regards to marital statutory rape.[10] It can only be assumed that an offence follows its commission, but this highlights the essence of a faulty if not controversial protection of minors in our matrimonial law. Nevertheless, it is submitted that the current legislative framework renders the State, through the Minister of Home Affairs, effectively consenting to a union where the legally expected performance of marital rights constitutes a first-schedule criminal offense under the Department of Justice.

This article intends to explore this statutory incoherence and analyses the Marriage Bill the legislature has elected to enact in pursuit of bridging this gap. From here, a brief background on the legislation that allows the marriage of minor children before analysing the Marriage Bill.[11]

2. THE CURRENT LANDSCAPE: STATUTORY CONSENT TO MINORITY UNIONS.

For a child marriage to be valid, consent is crucial. Statutory provisions require parental consent, consent of the Minister of Home Affairs, and if both are unobtainable or refused, the consent of a judge of the High Court may substitute it.

• Parental Consent to Child Marriage.

According to Section 24(1) of the Marriage Act,

“No marriage officer shall solemnize a marriage between parties of whom one or both are minors unless the consent to the party or parties which is legally required for the purpose of contracting the marriage has been granted and furnished to him in writing.”[12]

Such consent includes that of both biological parents of a minor or a guardian as set in the Children’s Act.[13] In the RCMA, the Act nominally sets the minimum marriage age at 18.[14] However, it also stipulates that, “If either of the prospective spouses is a minor, both his or her parents, or if he or she has no parents, his or her legal guardian, must consent to the marriage.”[15]

•  Ministerial Consent to child marriages.

 Section 26(1) of the Marriage Act establishes that boys under 18 and girls under 16 must obtain the written consent of the Minister of Home Affairs in addition to parental consent.[16] The Minister will only grant these applications strictly if the union is “desirable” and protects the parties’ best interests.[17] Similarly, in the RCMA, the Minister (or an authorized public service officer) holds the discretion to grant written permission for a minor under 18 to enter a customary marriage if it is deemed desirable and in their best interests.[18] Furthermore, the RCMA uniquely permits this ministerial consent to have retrospective effect if it wasn’t secured prior to the marriage.[19]

• Judicial consent to Child Marriage.

According to the Marriage Act, if the required parental or ministerial consent is unobtainable or refused, a minor may apply directly to a judge of the High Court for intervention under Section 25(4).[20] The RCMA integrates this exact judicial override pathway by direct reference, stating that “If the consent of the parent or legal guardian cannot be obtained, section 25 of the Marriage Act, 1961, applies.”[21]

• Comments on the mentioned provisions.

Insofar as parental consent is concerned, it is submitted that the responsibility of a parent’s consent to a child marriage may be contrary to the best interests of a child standard set in Section 7 of the Children’s Act.[22] This provision mandates that whenever the best interests standard is applied, the child’s age, maturity, and stage of development must be taken into consideration. As contended by Maluleke, proponents of criminalisation argue that Child Marriages flowing from harmful cultural practices deprive girl children of opportunities to educate and develop themselves.[23]

This socio-economic impact of Child Marriage finds a compelling regional parallel in the Zimbabwean Constitutional Court case of Mudzuru, where it was reported by Chief Justice Malaba that married girls’ access to education is limited because of restrictions placed on mobility by domestic burdens, childbearing and societal norms that view marriage incompatible.[24] The court further noted that parents tend to underinvest in the education of their daughters because the benefits of that investment are lost once the child leaves the parental home.[25] It is precisely here where it must be submitted that treating the power to grant parental consent to a child marriage as a exercise of ‘‘parental responsibility’’ actively undermines the cogent development of the child.

Moreover, In Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development, the Apex Court of the land affirmed that:

“Children are precious members of our society and any law that affects them must have due regard to their vulnerability and their need for guidance. We have a duty to ensure that they receive the support and assistance that are necessary for their positive growth and development. Indeed, this court has recognized that children merit special protection through legislation that guards and enforces their rights and liberties.”[26]

Similarly, Sachs J clarified in S v M that, “while no constitutional injunction could in and of itself isolate children from the perils of harsh family and neighbourhood environments, the law could create conditions to protect children from abuse and maximise opportunities for them to lead productive and happy lives.”[27] The legislative and judicial focus must therefore always remain on actualizing the “special protection” that children merit, thereby maximising the opportunities for every child to lead a productive, fulfilled life free from the structural constraints of early marriage and educational deprivation.

With respect to Ministerial consent, it is submitted that what is deemed “desirable” for a minor prospective spouse is virtually impossible to ascertain, particularly within environments where the independent voice of the child is suppressed by overbearing parental authority. This legislative standard of “desirability” effectively disintegrates when subjected to the constitutional injunction of Section 28(2) of the Constitution, which mandates that “a child’s best interests are of paramount importance in every matter concerning the child.”[28]

By elevating the best interests of the child to a paramount principle, the Constitution establishes a threshold that child marriage, by its very nature, can never satisfy. As Himonga observes, child marriages and betrothals are inherently harmful cultural practices that negatively jeopardize a child’s life, health, dignity, and psychological development.[29] To suggest that such an institution could ever be “desirable” for a child of tender years ignores the underlying structural machinery of the practice. Black feminist theorists argue that the continuation of these practices is structurally tethered to patriarchy.[30] It is also averred that the patriarchal systems tend to exert control of women’s sexuality and marriageability.[31]

When the Minister exercises their discretion to consent to such a marriage under the guise of “desirability,” they inadvertently legitimise patriarchal subjugation under the law, resulting in a gross violation of fundamental human rights. The catastrophic disconnect between abstract legal “desirability” and the lived reality of the child is laid bare in our jurisprudence. In S v Jezile, the court confronted the brutal functional reality of these arrangements, dealing with a matter where a minor was subjected to severe physical assault by an older man attempting to force sexual intercourse under the banner of cultural practice.[32]

Consequently, the praxis of “desirability” is not merely too vague an administrative standard; it is a constitutionally untenable one. Under the weight of the paramountcy principle, any practice that structurally facilitates the exploitation and physical violation of a child can never be deemed desirable by the State.

To the end of judicial consent, it is submitted that our courts have traditionally been careful in granting consent and cannot be strictly faulted. For instance, in Kruger v Fourie, the court denied replacing the consent of the parents of a minor who sought to get married simply because she was pregnant at the time.[33]  In De Greeff v De Greeff refused to consent to a marriage of a minor who sought to marry a 32-year-old man who was receiving treatment for alcohol abuse.[34] These cases reflect the court’s willingness to always protect minors from a potentially predatory or unstable union, even if there is a push for the marriage to proceed.

In M NO v M, the defendant, promised to register the union as a civil marriage after the families of the pair had concluded a marriage on Hindu rites. This promise, according to the plaintiff, allowed her to surrender her virginity. The defendant contended that the plaintiff was prepared to submit to cohabitation and thus, the promise to register the union as a civil marriage was not the cause of her defloration and seduction had not taken place. The court rejected this, finding that the approval to cohabitate was a survival mechanism to avoid full abandonment.[35] The case highlights the possibility of the exploitation of minors under the guise of cultural or religious practices that the State must handle with care.

It must also be noted that, incidents of Child Marriage may never reach Courts. The provisions cited encompass the situation where a minor seeks a court’s consent for them to marry and thus does not comprise of the situation where a marriage is unwanted by the minor concerned. If the Minister of Home Affairs or an elected officer deems a marriage involving a minor “desirable,” the marriage will be validly concluded, provided that the parents of the minor consent to it as well. It is submitted that such a position exposes the minor to potential exploitation.

3. INTERNATIONAL OBLIGATIONS BINDING SOUTH AFRICA.

The International Community has pushed for the minimum age for marriage to be set as 18 universally.[36] South Africa is a member state to the African Charter on the Rights and Welfare of the Child. The treaty provides an obligation to member states to prohibit child betrothals and child marriages.[37] The question then becomes whether or not South Africa has breached an obligation of the treaty. To answer this, the Constitutional Court found:

“An international agreement that has been ratified by resolution of Parliament is binding on South Africa on the international plane. And failure to observe the provisions of this agreement may result in South Africa incurring responsibility towards other signatory States. An international agreement that has been ratified by Parliament under s 231(2), however, does not become part of our law, until and unless it is incorporated into our law by national legislation. An international agreement that has not been incorporated in our law cannot be a source of rights and obligations.”[38]

Therefore, Article 21(2) of the ACRWC cannot be the source of rights and obligations. However, even if not international obligations are not binding until they are “incorporated,” Section 39(1)(b) of the Constitution mandates that courts must consider international law when interpreting the Bill of Rights.[39] Fortunately, it is important to note that South Africa has since moved towards actualising its responsibilities and obligations in from the Charter. The Marriage Bill, currently in legislative processes, seeks to “to provide for the requirements for monogamous and polygamous marriages.”[40]

4. THE MARRIAGE BILL [B 43-2023]

• Walkthrough of some provisions of the Marriage Bill.

The most relevant provisions of the Bill in relation to this article concern the age requirement for a marriage, and the legal consequences of non-compliance with this requirement.

The concerned provisions are:

Section 5(1)(a) of the Bill which stipulates that:

“For a monogamous marriage, entered into after the commencement of this Act, the prospective spouses must both be 18 years of age or older on the date of entering into a marriage.”[41]

 Similarly, Section 6(1)(a) which stipulates:

“For a polygamous marriage, entered into after the commencement of this Act, the prospective spouses must both be 18 years of age or older on the date of entering into a marriage.”[42]

Section 17 (1) of the Bill which provides that:

“Any person who enters into a marriage with a person who is not at least 18 years of age, or any person, other than a child, who participates knowingly in such a marriage, shall be guilty of an offence and liable on conviction to a fine or in default of payment, to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment.”[43]

Lastly, Section 21 of the Bill provides that:

“The commencement of this Act shall not affect a marriage that was valid in terms of any prior law, and such marriage shall continue to be valid under this Act.”[44]

• Critical analysis of the above provisions.

• The new age of marriageability.

The Bill sets the minimum age for marriage at 18 years of age.[45] For monogamous marriages entered into after the commencement of the Bill that do not comply with this requirement, the position is they are void ab initio.[46] This is not the position for polygamous marriages. It is submitted that this oversight invokes the statutory interpretation principle expressio unius est exclusio alterius (the explicit mention of one thing implies the exclusion of the other).

Because the legislature explicitly penalizes non-compliant monogamous marriages, its silence implies that underage polygamous marriages are exempt from being voided. This opens the door to a wide array of complications. It stands to reason that an underage polygamous marriage concluded in terms of the Act would still be valid, leaving the age requirement entirely irrelevant to its existence. Consequently, the Act fails to achieve what it purports to achieve, namely, “to provide for the requirements for monogamous and polygamous marriages.”[47]

Moreover, a plausible consequence of this legislative position is that Section 6 of the Bill renders polygamous marriages concluded after its commencement voidable if the unions fail to comply with the statutory requirements. Because a voidable marriage remains valid until a court sets it aside, the onus rests primarily on the child to initiate an application for annulment.[48] It is important to note that the grounds for the annulment of a marriage include minority, material mistake, duress, and undue influence.[49] It is submitted that accessing courts to lodge such applications may prove exceptionally difficult in rural areas, where child marriages are most prevalent.[50] It is for this reason submitted that the legislature should explicitly render underage polygamous marriages null and void ab initio.

• The problem of retrospectivity.

Section 21 of the Bill provides that “the commencement of this Act shall not affect a marriage that was valid in terms of any prior law and such marriage shall continue to be valid under this Act.”[51] This limit on retrospective effect is consistent with a variety of constitutional provisions,[52] and the nullum crimen sine lege principle.[53] Unfortunately, the implication is that many child marriages are left as valid until a court voids them upon application. It is submitted that this approach places an unconscionable burden on the minor. Under the current framework, the onus is shifted entirely to the child to initiate an application for annulment, a process that is historically expensive, legally complex, and often inaccessible to those in rural environments.

The legislature may consider a few transitional protection mechanisms. The Bill should include a designated period, for example, three to five years post-enactment, during which any person married as a minor under the old regime can apply for a simplified, cost-free administrative annulment. A similar approach was followed in repealing of the Black Administration Act.[54] The Bill may also consider a position where rather than requiring a High Court order, the state could empower the Children’s Court or the Department of Social Development to facilitate the dissolution of these unions through an expedited process that does not require the minor to prove “material mistake” or “duress.” Also, considering the confirmed statistics of child marriages as shown above, the Act should mandate an automatic judicial review of the union’s validity, and annulment of child marriages, ensuring the State takes a proactive role in protection rather than waiting for a vulnerable complainant to step forward.

• The problem of enforcement.

The Division for the Advancement of Women (DAW), a part of the UN Department of Economic and Social Affairs (DESA), recommended that legislative measures should not only aim to criminalise child marriage, but to also identify appropriate rights and remedies of child marriage.[55] Conversely, the Bill is entirely silent on where children can report offences, making no provision for reporting procedures, arrests, or the designation of specific officers to assist complainants. Put differently, it fails to impose a statutory duty on police officials, child welfare organisations, or helplines like Childline to receive or act upon reports from minors. This legislative omission creates a precarious environment where a minor risks being shunted from one administrative office to another, ultimately deterring them from reporting entirely.[56]

According to Former Justice of the Constitutional Court of South Africa Edwin Cameron, “The major response to the crime wave in our country should be to recognise that the sole inhibiting institutional response to criminal conduct is the certainty of detection, the certainty of follow up, the certainty of arraignment, the certainty of prosecution and the certainty of punishment.”[57] Providing accessible, explicit pathways for children to report child marriages is vital to actualising what the former Justice terms the “sole inhibiting institutional response to criminal conduct.” Without express statutory provisions regulating where and how to report, detection cannot follow, and the procedural chain required to secure punishment inevitably collapses.

As a matter of comparison, the Children’s Act provides that “a child and youth care centre must offer a therapeutic safe care of trafficked individuals.”[58] The Act also provides for obligations on various sectors for reporting abused and neglected children in need of care and protection.[59] Hendriks explains that this framework compels professionals to report any suspected child abuse or neglect, where reasonable grounds exist, to a designated child protection organisation, the provincial Department of Social Development, or a police official.[60] Such an explicit framework ensures that protective redress is effectively and systematically mobilised.

Without an explicit statutory framework compelling professionals and law enforcement to act, the Bill’s protective intent remains procedurally toothless.

• The Living Law Challenge: Cultural Relativism versus the Paramountcy Principle.

Beyond these operational and procedural hurdles lies a more profound, ideological challenge: the localized perception of child marriage within rural spaces and the resilience of unofficial legal systems. As Karimakwenda points out, in certain traditional contexts, sexual violations are not always viewed as crimes in the modern-law sense, but as a sanctioned coercion.[61] The procedure for appropriating justice in such environments would prove difficult if no provision that outlines where to report incidents of child marriages.

This localized reality points to a more profound, unspoken challenge: the localized perception and understanding of these incidents as criminal offenses within rural spaces. In S v Jezile, for instance, a 28-year-old accused sought a 16-year-old bride, asserting that his actions conformed to cultural practices.[62] Read in conjunction with what was shown by Karimakwenda this case highlights a severe crisis of “wrongness detection” within specific rural communities.

To remedy this, An-Na’im suggests a human rights approach that prioritizes “internal cultural discourse and cross-cultural dialogue.”[63] However, Durojaye contends that it remains uncertain  how the balance between cultural relativism and universalism can be successfully achieved, particularly in an environment like Africa with deep-rooted patriarchal traditions where women’s voices are still suppressed.[64] This uncertainty is of paramount importance, given that children in these settings remain entirely subject to entrenched parental authority. Perhaps the key to actualising Section 17 of the Bill lies in what Mwambene and Kruuse term a “bottom-up” approach, one that engages local structures to build a more resonant and effective institutional response to these challenges.[65]

Because such a “bottom-up” approach requires the State to engage directly with rural communities, it inevitably confronts the ideological defense of cultural relativism. A cultural relativist might argue that a community must retain the liberty to practise customs native and relevant to its own social fabric, free from the imperialist imposition of external norms and beliefs.[66]

It is submitted however, that this position is incorrect. As Asomah contends, cultural preservation should be assessed solely on the basis of its usefulness, and not on the ground of preservation of cultural identity and traditions when, in fact, doing so would result in the erosion of the dignity, liberty and security of others.[67] While cultural identity is a protected right,[68] it should not override the Paramountcy Principle. As articulated in S v M, “while no constitutional injunction could in and of itself isolate children from the perils of harsh family and neighbourhood environments, the law could create conditions to protect children from abuse and maximise opportunities for them to lead productive and happy lives.”[69]

It is important to note that currently, the registration of customary marriages remains largely immaterial to the validity of the union in practice. Child marriages may persist as what Rautenbach identifies as “unofficial customary law,” a system applied by both official and unofficial institutions that bears witness to the “tenacity of customary law” despite state regulation.[70] This “living customary law” is often applied by informal dispute-settlement bodies, such as family councils, which adapt to social changes without losing their traditional character. Consequently, a legislative prohibition that fails to account for these local realities risks creating a “widening divergence” between the state courts’ official version of the law and the lived reality of the community, effectively rendering the statute what Himonga terms “paper law.”[71]

• The Objective Fault Imperative: The Mistake of Age Loophole.

Section 17(1) of the Bill provides that any person who enters a marriage with a minor is guilty of an offence. Unlike SORMA, which strictly curtails the mistake-of-age defence by demanding reasonable steps,[72]  Section 17(1) of the Bill risks creating a subjective loophole if courts read “knowingly” too narrowly.

The defence in SORMA is typically invoked in cases where the accused had not taken any steps to ascertain the age of the victim beyond visual observation.[73] Grant and Benedet argue that in such cases, the defence relies on stereotypical reasoning. Namely, that a young girl is ‘old enough’ based on appearance, attire, alcohol consumption, or prior sexual experience, thereby creating a loophole for acts for which offenders should be held accountable.[74]

This position departs from an objective fault standard, leaving room for offenders to evade liability. It is submitted that where minors are concerned, criminal liability should always hinge on what the accused ought to have known. As Cameron JA observed in Fourie v Minister of Home Affairs, at issue is access to “an institution that all agree is vital to society and central to social life and human relationships.”[75] Given the profound gravity of this institution, it is entirely cogent to hold offenders to an objective standard of negligence.

The Marriage Bill [B 43-2023] represents a significant and long-overdue stride toward rectifying the legislative fragmentation that has historically left South African children vulnerable to exploitation. By proposing a universal minimum marriage age of 18, the legislature finally attempts to bridge the schism between matrimonial law and the criminal protections afforded by SORMA. However, as this article has demonstrated, legislative intent without precise drafting and robust enforcement mechanisms remains a “paper law”.

The Bill’s failure to explicitly render underage polygamous marriages void ab initio creates a discriminatory loophole that places an unconscionable burden of litigation on the most vulnerable members of society. Furthermore, by importing a subjective “mistake of age” defence, the Bill risks perpetuating stereotypical reasoning that allows offenders to evade the accountability the state purports to demand.

Ultimately, the eradication of child marriage in South Africa requires more than a statutory prohibition; it requires a structural commitment to enforcement that mirrors the mandatory reporting duties of the Children’s Act. If the state fails to provide clear reporting pathways and continues to ignore the “living” realities of rural communities, Section 17 of the Bill will remain a dormant deterrent. For the Bill to truly satisfy the Paramountcy Principle, it must move beyond mere criminalization and toward a holistic, “bottom-up” framework that ensures no child is forced to choose between their cultural identity and their fundamental rights to dignity, education, and safety.

Bibliography

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• De Greeff v De Greeff En ‘N Ander 1982 (1) SA 882 (O).
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• African Charter on the Rights and Welfare of the Child 1999 (ACRWC)
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• Convention on the Elimination of All Forms of Discrimination Against Women 1979
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[1] Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA), at s15 and s16.

[2] SORMA supra, at s15(1)(a)(b).

[3] SORMA, at s15(1)(a)(b); see also Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 (1) SACR 327 (CC), where the court found that Sections 15 and 16 of SORMA are unconstitutional and invalid to the extent that they impose criminal liability for consensual sexual conduct on children under the age of 16. (It would be cogent to look specifically at paragraphs [58] at 346f, [63] at 348a, [79] at 352a–b and [101] at 357c.)

[4] Marriage Act 25 of 1961.

[5] Recognition of Customary Marriages Act 120 of 1998.

[6] Children’s Act 38 of 2005.

[7] https://www.dsd.gov.za/index.php/latest-news/21-latest-news/502-207-children-married-in-2021-stats-sa?hl=enGB#:~:text=Dr%20Seble%20Worku%2C%20Stats%20SA’s,marriages%20and%2019%20were%20customary.

[8] Grobbelaar v Havenga 1964 (3) SA 522 (N), at p525 at D-E

[9] Divorce Act 1979, at s14 states: “[I]t shall not be competent for a court to issue an order for the restitution of conjugal rights…”

[10] Prevention of Family Violence Act 1993, at s5 states, “[N]otwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife.” But was repealed by SORMA in Part 6 of the Act as the Act codifies rape in across all natural person statuses.

[11] Marriage Bill [B 43—2023]

[12] Marriage Act 1961 supra, at s24(1).

[13] Children’s Act 2005, at s18(3)(c)(i).

[14] RCMA 1998, at s3(1)(a)(i).

[15] RCMA 1998, at s3(3)(a).

[16] Marriage Act 1961, at s26(1).

[17] Ibid.

[18] RCMA 1998, at s3(4)(a).

[19] Ibid at s3(4)(c).

[20] Marriage Act 1961, at s25(4).

[21] RCMA 1998, at s3(3)(b).

[22] Children’s Act 2005, at s7(1)(g)(i).

[23] Maluleke “Culture, Tradition, Custom, Law and Gender Equality” 2012 PELJ 12.

[24] Mudzuru v Ministry of Justice, Legal and Parliamentary Affairs 2015 ZWCC 12 (20 January 2016) 41.

[25] Ibid.

[26] Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 (1) SACR 327 (CC), at [1].

[27] S v M 2007 (2) SACR 539 (CC), at [20].

[28] Constitution of the Republic of South Africa, at s28(2)

[29] Himonga “African Customary Law and Children’s Rights’’ 84. It reads: Practices that are likely to negatively affect the child’s life, health, social welfare, dignity, physical or psychological development, such as circumcision and other genital mutilations, virginity testing, child betrothals and child marriages.

[30] Diop, Stewart and Herr “Black African Feminist Theory to Examine FGM”, at 13

[31] Glover et al 2018 Journal of International Women’s Studies, at 58-59.

[32] S v Jezile 2015 (2) SACR 452 (WCC), at para [98]

[33] Kruger v Fourie En ‘N Ander 1969 (4) SA 469 (O): note this judgment is written in Afrikaans, but the headnote may be useful as it is in English.

[34] De Greeff v De Greeff En ‘N Ander 1982 (1) SA 882 (O) 1982 (1) SA: note this judgment is written in Afrikaans, but the headnote may be useful as it is in English.

[35] M NO v M 1991 (4) SA 587 (D).

[36] UN Declaration of Human Rights 1948, at art16(2); The Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages 1962, at art 1(1); International Covenant of Civil and Political Rights 1966 at art 23(3); The Convention on the Elimination of all forms of discrimination against women 1979 at art 16(1)(b); Protocol of African Charter on Human and People’s rights on the Rights of Women in Africa 2005, at art 6(a); The Southern African Community Gender Protocol 2008, at art 8(2)(b); African Charter on the Rights and Welfare of the Child 1999, at art 21(2).

[37] African Charter on the Rights and Welfare of the Child 1999, at art21(2).

[38] Glenister v President of the Republic of South Africa 2011 (3) SA, at para [92].

[39] The Constitution of South Africa 1996, at s39(1)(b).

[40] Marriage Bill [B 43—2023], at Preamble.

[41] Marriage Bill [B 43—2023], at s5(1)(a).

[42] Marriage Bill [B 43—2023], at s6(1)(a).

[43] Marriage Bill [B 43—2023], at s17(1).

[44] Marriage Bill [B 43—2023], at s21.

[45] Marriage Bill [B 43—2023], at s5(1)(a) and s6(1)(a).

[46] Marriage Bill [B 43—2023], at s5(5).

[47] Marriage Bill [B 43—2023], at Preamble.

[48] Heaton and Kruger, “South African Family Law 4^th edition (LexisNexis Durban 2015)”, at 33

[49] Heaton and Kruger, “South African Family Law 4^th edition (LexisNexis Durban 2015)”, at 33-38

[50] https://www.dsd.gov.za/index.php/latest-news/21-latest-news/502-207-children-married-in-2021-stats-sa?hl=enGB#:~:text=Dr%20Seble%20Worku%2C%20Stats%20SA’s,marriages%20and%2019%20were%20customary.

[51] Marriage Bill [B 43—2023], at s21.

[52] The Constitution of South Africa 1996, at s35(3)(i) and s35(3)(n).

[53] See Masiya v Director of Public Prosecutions 2007 (5) SA 30 (CC). Masiya represents the Constitutional Court’s cautious approach to extending criminal liability retroactively through judicial development, which justifies why the legislature chose a prospective model, even if it inadvertently leaves existing child marriages intact.

[54] See the Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005, particularly the Preamble and section 1, which mandated an “incremental approach” using transitional window periods to phase out old-regime provisions without disrupting legal certainty. See also section 1(8)(b), which utilized a cost-free administrative mechanism by requiring the Registrar of Deeds to remove historical restrictions “without charge.”

[55] UN Supplement to the DAW/DESA Handbook 2011, at 28-29.

[56] Mwambene and Mgidlana “Should South Africa Criminalise Ukuthwala Leading to Forced Marriages and Child Marriage?” PELJ 2021 (24).

[57] Cameron “The Crisis of Criminal Justice in South Africa,” 020 SALJ at 56-57.

[58] Children’s Act 2005, at s191(2)(f).

[59] Children’s Act 2005, at s110.

[60] Hendriks “Mandatory Reporting of Child Abuse in South Africa: Legislation Explored” 2014 SAMJ 551.

[61] Karimakwenda “Today It Would Be Called Rape: A Historical and Contextual Examination of Forced Marriage and Violence in the Eastern Cape,” 2013 AHRLJ 352.

[62] S v Jezile supra, at para [5].

[63] An-Na’im “Towards a Cross-Cultural Approach to Defining International Standards of Human Rights” (University of Pennsylvania Press Philadelphia 1992) 4.

[64] Durojaye “The Human Rights Implications of Virginity Testing in South Africa,” 2016 IJDL 235.

[65] Mwambene and Kruuse “The Thin Edge of the Wedge: Ukuthwala, Alienation and Consent,” 2017 SAJHR 3.

[66] Danial “Cultural Relativism vs Universalism: Female Genital Mutilation, Pragmatic Remedies” (Prandium: The Journal of Historical Studies), 2013 Prandium 2.

[67] Asomah “Cultural Rights Versus Human Rights: A Critical Analysis of the Trokosi Practice in Ghana and the Role of Civil Society” 2015 AHRLJ 133.

[68] The Constitution of the Republic of South Africa 1996, at s30 and s31.

[69] S v M 2007 (2) SACR 539 (CC), at para [20].

[70] Rautenbach, “Introduction to Legal Pluralism in South Africa.” 2021, at 14.

[71] Himonga, “African customary Law and Children’s Rights,” at 85.

[72] Criminal law, (Sexual Offences and Related Matters) Amendment Act 2007, at s56(2).

[73] S v Sheldon-Lakey 2016 2 SACR 632 (NWM); Mthimunye v S 2017 JOL 39057; Mohale v S 2019 2 SACR 666 (GP).

[74] Grant and Benedet “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” 2019 Can Bar Rev 6; also see Mohale v S 2019 2 SACR 666 (GP).

[75] Fourie v Minister of Home Affairs 2005 (3) SA, at para [14].