Authored By: S'khulile Cebekhulu
University of Zululand
Abstract:
This article provides a critical analysis of the Supreme Court of Appeal’s ruling in S v Jezile1, which dismissed the accused’s argument the customary practice of ukuthwala could serve as a defence against charges of kidnapping and rape. Utilizing a doctrinal examination of South African constitutional law, Recognition of Customary Marriages Act2(RCMA), and pertinent judicial precedent, this study scrutinizes the Court’s rigid approach to cultural defences and its consequences for the rights to equality, dignity, and bodily integrity as enshrined in the Constitution of South Africa 1996. This article outlines the historical and social background of ukuthwala, assesses academic critiques of judgement, and suggests a nuanced framework that harmonizes cultural pluralism with human rights protection. By incorporating comparative insights from other jurisdictions that integrate customary practices within a human rights framework, the analysis contends that a more adaptable doctrinal test-rooted in the principle of proportionality-would more effectively align customary norms with constitutional guarantees. This article adds to ongoing discussions regarding legal pluralism, cultural defences, and the transformative potential of South African law.
Keywords: The concepts of ukuthwala, the legal case of Jezile, the notion of cultural defence, the institution of customary marriage, the rights enshrined in the constitution, and the framework of legal pluralism.
Introduction
The custom of ukuthwala refers to a customary marriage between spouses-to-be involves formal negotiations between their families.3 Bennet portrays “ukuthwala as a mock abduction or irregular proposal aimed at achieving a customary marriage.”4 Traditionally, in indigenous African communities a marriages was initiated through a request or approach from the family of the prospective groom to the family of the woman.5In its original form, ukuthwala was one of the “irregular” forms of marriage, observed predominantly by the Nguni-speaking groups.6 Due to serious concerns regarding human rights, especially those of women and children, the topic of ukuthwala is vital to the contemporary South African judicial system. This article’s goals are to address the intricacies of ukuthwala, a customary practice in South Africa, and explore potential reform measures to strike balance between cultural rights and defense of women’s and children’s rights.
Background and Context of Ukuthwala
Ukuthwala comes from the Xhosa tradition and happens when a young women is taken forcefully by a man for marriage purposes.7 The practice has its roots in customs of tradition which then later distributed to other parts of the world, to convince a female to accept marriage and is connected with exploitation, violence, economic opportunities and limited education which has a negative impact on women.8 The South African Constitution lays out that human rights must be protected and at the same time acknowledges the significance of cultural practices.9 Ukuthwala raises a lot of issues in rural South Africa and is frequent in Eastern Cape as well as KwaZulu-Natal where poverty and cultural norms are high and highly practiced.10
What is ukuthwala?
In summary of all the evidence presented by the amici, the court found that there is a distinction between the traditional understanding of ukuthwala and the current prevailing practice of the custom.11 It noted that customary law posits both regular and irregular means of initiating and concluding a customary marriage.12 Ukuthwala is one such irregular method which would, if the precepts of the custom were correctly followed, eventually lead to the conclusion of a valid marriage under the customary law.13 It was described as a method instigated by willing lovers to initiate the marriage negotiations by the respective families where there was some form of resistance to the marriage by the parents.14 The idea is to circumvent obstacles to the proposed marriage such as extreme parental authority, or where the man is unable to afford payment of the lobola in full, or where a woman objects to an arranged marriage and would rather marry a lover of her choice.15
Ukuthwala, in its traditional context, is a cooperative approach by consenting partners to facilitate marriage discussions. In this context, it has been characterized as ‘harmless, romantic, and a delightful time-honored tradition.’.
A few prerequisites must be fulfilled:
➢ the lady must be of marriageable age,
➢ which is typically regarded by customary law as reproductive age;
➢ the parties’ cooperation is required;
➢ as part of the procedure, the parties would set up a fictitious kidnapping of the woman at dusk.
➢ the woman would then be smuggled into the man’s homestead and placed in the care of the women folk to protect her person and reputation;
➢ the man’s father would then be informed of the woman’s presence in his homestead and of his son’s desire to marry her; she would pretend to be resistant for the sake of modesty, but in reality, she would have agreed to the arrangement beforehand;
the man’s family would then send an invitation to the woman’s family to inform them that they wish to commence marriage negotiations.
It was highlighted by the experts that in customary law no marriage is possible without the consent of the woman’s parents. If her family rejected the proposal, she had to be returned to her home along with the payment of damages for the unsuccessful ukuthwala (at paras 72 – 74).16 Using a doctrinal-analytical framework, this article examines the legal concepts, judicial reasoning, and legislative provisions that creates South African law on the contentious practice of ukuthwala through the prism of Jezile case. This article assesses how the courts strike balance between cultural customs and constitutional rights by methodically examining case law, legislative documents, and academic discussions. Furthermore, a comparative component places the South African experience in the context of other jurisdictions that face comparable customary-law challenges such as Zimbabwe’s lobola practice or Kenya’s bride-price customs, highlighting different approach and guiding a nuanced evaluation of potential reforms.
Ukuthwala As a Custom In South Africa
The practice of ukuthwala was defended as being a traditional cultural practice, with adherents claiming that the tradition allows a men to abduct a women whom he wishes to marry, even if he has not proposed love and such abductions mainly happen when young girls are on their way to school or are fetching water or food.17
Legal Framework
The legal regulations concerning ukuthwala and customary marriages in South Africa are mainly established by the RCMA.18 This Act acknowledges the legitimacy of customary marriages and outlines procedures for their registration, property implications, and termination. According to section 1 of the Act ‘customary marriage’ means a marriage concluded in accordance with customary law, while ‘customary law’means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples. With regard to the requirements for validity of customary marriage, section 3(1)(a)-(b) of the Act provides:
(1) For a customary marriage entered into after the commencement valid-
(a) the prospective spouses-
(i) must both be above the age of I8 years; and
(ii) of this Act to be must both consent to be married to each other under customary law: and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.
Furthermore, the Children’s Act19 and the Prevention and Prohibition of Trafficking in Persons Act20contribute to the regulation of ukuthwala, especially in situations that involve minors or coercive tactics.
The South African Law Reform Commission has suggested the Prohibition of Forced Marriages and Child Marriages Bill to tackle issues related to ukuthwala and forced marriages.
Judicial Interpretation
The landmark Judicial Precedent on Ukuthwala
The most frequently referenced case is S v Jezile.21 This ruling represents the first instance in South Africa where a distinct distinction was made between the traditional, consensual version of ukuthwala and its “aberrant” iteration, which entails coercion and sexual violence. The judgment has become a reference point for interpreting the Recognition of Customary Marriages Act and applying constitutional rights concerning dignity, equality, and freedom from slavery.
During December 2009 or early January 2010, the appellant, who was 28 years old at the time, departed from his residence in Phillippi for his home village in the Eastern Cape with the specific intention of finding a girl or young woman there in order to conclude a marriage in accordance with his custom. His stated requirements were that the girl or young woman should be younger than 18 years old because, over that age, she would likely have children. He wanted a virgin. According to the appellant the ideal age for his chosen wife was 16 years old.22 He selected a 14‑year‑old girl, organized a mock abduction (the “ukuthwala” ceremony), and brought her to Cape Town. The girl was confined in his residence, subjected to ongoing rape and assault, and only managed to escape after several weeks. On 7 November 2013 the appellant was convicted in the Wynberg regional court on one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm and one count of common assault. All of the convictions pertain to a single complainant.23 He contended that his actions were part of a customary marriage and thus justified.
The Court dismissed the appellant’s defence, determining that the form of ukuthwala he referenced was “aberrant” and did not align with traditional customs, which necessitate the woman’s genuine consent, parental approval, and a staged, non-violent abduction. On 13 February 2014 the appellant was sentenced to 10 years’ imprisonment on the human trafficking count, 20 years’ imprisonment on the 3 rape counts (which were taken together for purposes of sentence), 6 months’imprisonment on the count of assault with intent to cause grievous bodily harm, and 30 days imprisonment on the count of common assault. The trial court further ordered that 8 years of the sentence for human trafficking, as well as the sentences imposed for the two assaults, would be served concurrently with the sentence imposed for the rapes. The appellant was thus sentenced to an effective 22 years’ direct imprisonment. In addition, the trial court ordered that the appellant’s details be included in the National Register for Sexual Offenders in accordance with s 50(2)(a) of the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007 (‘the Sexual Offences Act’).24
The convictions all relate to a series of events which occurred over the period January to March 2010, starting in a remote rural area of the Eastern Cape and ending with the complainant fleeing from the appellant’s home in Philippi near Cape Town and laying criminal charges against him.25 The judges stressed that customary law does not grant a free pass to violate constitutional rights; any practice that breaches the Bill of Rights particularly those related to freedom from slavery, bodily integrity, and child protection must be invalidated. The Court upheld the convictions for human trafficking and rape while overturning the assault convictions as part of a single criminal act. It emphasized that the “mock abduction” was a facade, devoid of the critical components of consent and parental involvement and therefore could not receive the legal protection accorded to authentic customary marriages. This ruling indicates that courts will examine cultural practices through a constitutional perspective, refusing to recognize harmful deviations from tradition as legitimate.
Critical Analysis
The legislation regarding ukuthwala in South Africa encounters numerous challenges and gaps, complicating efforts to effectively tackle the issue. A major concern is the lack of clear definitions, as the RCMA26 does not specifically define ukuthwala, resulting in confusion and varying interpretations. Additionally, the requirement for both spouses to give consent is frequently undermined, as ukuthwala often involves coercion or manipulation, making it difficult to ascertain true consent.
The Children’s Act27 establishes 18 as the minimum marriage age, yet certain customary practices permit younger marriages, leading to a conflict between customary and statutory laws. Furthermore, the challenges of prosecution stem from the fact that victims often struggle to report instances of ukuthwala due to familial pressure, cultural norms, or inadequate support services.
In practice, the effectiveness of the law is diminished by a lack of resources, including limited support services and the law enforcement capacity to handle cases of ukuthwala. Cultural sensitivity remains an issue, as the laws may not fully consider cultural nuances, which can cause misunderstandings and ineffective enforcement. In addition, there is a deficiency in clear guidelines for supporting and protecting victims.
Other regions face similar difficulties. For example, Zimbabwe has laws against forced marriages, but ensuring enforcement continues to be problematic. Conversely, the United Kingdom has established laws for addressing forced marriages, such as the Forced Marriage (Civil Protection) Act28, which offers protection orders for those affected.
Recently, there has been a rise in the reporting of ukuthwala incidents, suggesting a shift in societal views. Legislative changes, like the proposed Prohibition of Forced Marriages and Child Marriages Bill, aim to enhance laws and support services. These developments underscore the necessity for ongoing efforts to address ukuthwala and uphold the rights of victims. Ultimately, a well-rounded approach that encompasses legislative reforms, awareness initiatives, and support services is crucial for effectively resolving this intricate issue.
Recent Developments
Recent amendments in South Africa’s laws regarding forced marriages include the introduction of the Marriage Bill, 2023, designed to consolidate and reform existing marriage legislation, particularly focusing on forced marriages. This bill aims to eliminate child and forced marriages, in line with international guidelines, and makes it a criminal offense to marry anyone under the age of 18.
The South African Law Reform Commission has put forward the Prohibition of Forced Marriages (Molokoane, 2025)and Child Marriages Bill, which would specifically criminalize forced marriages, including those that emerge from ukuthwala, a cultural practice that can lead to such situations. The goal of the bill is to safeguard women and children from exploitation and to ensure that marriages are entered into voluntarily and without pressure.
Reactions from the public regarding these changes have varied, with some organizations praising the proposed laws as a positive move towards safeguarding vulnerable populations, while others have raised concerns about their potential effects on cultural traditions.
The government has adopted a firm stance against forced marriages, with the Minister of Home Affairs presenting the Marriage Bill, 2023, to Parliament. Reports from the media suggest that the government is dedicated to tackling this issue, with the Department of Home Affairs announcing intentions to present a new draft marriage policy.
In addition, recent changes in South Africa’s forced marriage legislation demonstrate a commitment to protecting individuals from exploitation and aligning with global human rights standards.
Suggestion
To effectively tackle the issue of forced marriages, including those related to ukuthwala, South Africa must adopt a comprehensive strategy that incorporates legal reforms, judicial actions, and
efforts by civil society. A crucial initial measure is to explicitly criminalize forced marriages by enacting clear legislation that defines and prohibits these practices. This would require aligning existing laws, such as the Marriage Act, Recognition of Customary Marriages Act, and the
Children’s Act, to ensure a coherent approach to addressing forced marriages. Moreover, imposing stricter penalties on those who perpetrate or facilitate forced marriages would act as a deterrent.
The judiciary plays an essential role in confronting forced marriages. Educating judges and magistrates about the intricacies of forced marriages and ukuthwala would promote informed judicial decisions. Creating specialized courts to handle cases of forced marriage would offer victims necessary support and protection. Additionally, safeguarding the rights of victims, including their anonymity and testimony, is vital.
Civil society organizations play a critical part in increasing awareness about the dangers posed by forced marriages and the significance of consent. They can provide essential support services such as shelters, counselling, and legal assistance to victims of forced marriages. Advocacy for policy change and the push for legal reforms along with effective implementation of existing laws are also key responsibilities for civil society.
The government can launch public awareness campaigns to highlight this issue and create support services for victims. Collaborative efforts among governmental departments, civil society, and traditional leaders are essential for effectively addressing forced marriages.
In summary, combating forced marriages necessitates a holistic approach that includes legal reforms, judicial actions, and initiatives from civil society. By uniting efforts, South Africa can enhance its response to forced marriages, safeguard vulnerable individuals, and foster a culture of consent and respect for human rights.
Conclusion
In this article, we have explored the legal framework pertaining to forced marriage in South Africa, emphasizing the diverse range of laws that address the issue from the Marriage Act29 and the Recognition of Customary Marriages Act to the Children’s Act and the Prevention and Prohibition of Trafficking in Persons. We observed that although these laws create a foundational basis, there is a lack of a specific provision that explicitly criminalizes forced marriage, resulting in gaps that are only somewhat filled by the proposed Prohibition of Forced Marriages and Child Marriages Bill. Recent developments, such as the 2023 Marriage Bill and ongoing discussions in Parliament, indicate an increasing legislative commitment to address these gaps, yet public sentiment remains polarized, with cultural practices like ukuthwala conflicting with human-rights standards.
The urgency of addressing forced marriage cannot be underestimated. It transcends mere compliance with laws; it is a significant human-rights concern that threatens the dignity, autonomy, and future opportunities of numerous women and girls. Every instance of forced marriage perpetuates cycles of poverty, violence, and marginalization, and the government’s inaction diminishes trust in the legal system. Additionally, South Africa’s international commitments under the Convention on the Elimination of All Forms of Discrimination Against Women and the African Charter on the Rights and Welfare of the Child necessitate a strong, clear response.
To progress, lawmakers need to implement a distinct, dedicated Forced Marriage (Civil Protection) Act that defines the offence, stipulates appropriate penalties, and aligns current laws. The judiciary should receive specialized training and establish dedicated courts to address cases with sensitivity, while civil society must persist in amplifying the voices of victims, providing vital support services, and ensuring accountability among officials.
If South Africa can transform its legislative aspirations into effective actions, it will not only safeguard its most vulnerable population but also establish a compelling example for the continent. Will the country take this opportunity to turn its legal obligations into a tangible reality for every woman and girl?
Bibliography
Book
o Shelly Walker, Gerhard Kemp (Editor), Robin Palmer, Dumile Baqwa, Christopher Gevers, Brian Leslie, Anton Steynberg: Criminal Law in South Africa 3rd edn (published in 2018) 793
Journals
o Bennet, J “Ukuthwala and the Limits of Cultural Defences in South African Criminal Law’’ [2018]
o Mabasa, Diana “Ukuthwala: Is it all culturally relative” [2015]
o Molokoane, Ofentse Lisbeth “Ukuthwala: A Fundamental right problem in South Africa” [2025]
Case Law
o S v Jezile and Others [2015] ZAWCHC 202, (2015)
STATUTES
o Children’s Act 38 of 2005
o Recognition of Customary Marriage Act 120 of 1998, s 3(1)(a)(i)-(b)
o Marriages Act 25 of 1961
o Prevention and Prohibition of Trafficking in Persons Act 7 of 2013
o Marriage Bill 2023
o Constitution of the Republic of South Africa, 1996
o South African Law Reform Commission “Ukuthwala: Discussion paper 132” [2015]
1(S v Jezile and Others [2015] ZAWCHC 202, 2015).
2 120 of 1998.
3(Shelly Walker , 2018).
4(Bennett, 2018).
5(Commission, Ukuthwala: Discussion paper 132, 2015).
66 Commission (n5).
7(Molokoane, 2025).
8 Molokoane (n7).
9 Molokoane (n7).
10 Molokoane (n7).
11 (Mabasa, 2015).
12 Mabasa (n11).
13 Mabasa (n11).
14 Mabasa (n11).
15 Mabasa (n11).
16 Mabasa (n11).
17 (Commission, Ukuthwala: Discussion paper 132, 2015)
18 120 of 1998.
19 38 of 2005.
20 7 of 2013.
21Jezile case (n1).
22 Jezile case (n1) para [5].
23 Jezile case (n1) para [1].
24 Jezile case (n1) para [2].
25 Jezile case (n1) para [3].
26 120 of 1998.
27 38 of 2005.
28 C20 of 2007.
29 25 of 1961.
