Abstract
The practice of “ukuthwalwa” has been described as a “mock abduction” or an “irregular proposal” aimed at achieving a customary law marriage. It has been said that ukuthwalwa may be used for a number of purposes, such as: (a) to force the father to give his consent; (b) to avoid the expense of a wedding; (c) to hasten matters if the woman is pregnant; (d) to persuade the woman of the seriousness of the suitor’s intent; and (e) to avoid payment of lobolo. At common law the courts have stated that ukuthwalwa should not be used “as a cloak for forcing unwelcome attentions on a patently unwilling girl”, and have held that abduction by way of ukuthwalwa is unlawful. However, it has been suggested that if there is a belief by the abductor that the custom of ukuthwalwa was lawful the abduction would lack fault, and that if the parents or guardians consented to the taking it would not be abduction, because abduction is a crime against parental authority. Where the parents or guardians consent to the abduction the crime may amount to assault or rape. Some of these potential lacunae in the law seem to have been addressed by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. There has recently been public outrage about the practice of ukuthwalwa in the Eastern Cape in which girls between the ages of 12 and 15 years of age were being abducted and forced into marriages against their consent. This aspect of ukuthwalwa is a breach of the common law and the repealed section of the Sexual Offences Act (s 9 of the SexualOffences Act 23 of 1957. It is also completely contrary to the Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa Act, 1996) and the Sexual Offences Amendment Act (Chapters 2 and 3 of the Sexual Offences Amendment Act). Part of the problem may be that some rural communities think that cultural practices trump constitutional rights, whereas according to the law the reverse applies.
Highlights
The practice of “ukuthwalwa” has been described as a “mock abduction” or an “irregular proposal” aimed at achieving a customary law marriage (Bennett Customary Law in South Africa (2004) 212; cf Burchell Principles of Criminal Law 3ed (2005) 763 fn 10; see Van Tromp Xhosa Law of Persons: A Treatise on the Legal Principles of Family Relations among the AmaXhosa (1947) 63ff; Whitfield South African Native Law 2ed (1948) 115116; and Simons African Women: Their Legal Status in South Africa (1968) 117-119)
It has been suggested that if there is a belief by the abductor that the custom of ukuthwalwa was lawful the abduction would lack fault, and that if the parents or guardians consented to the taking it would not be abduction, because abduction is a crime against parental authority (R v Sita supra 23; cf Burchell 762; Snyman Criminal Law 5ed (2008) 403; and Milton South African Criminal Law and Procedure Vol II: Common Law Crimes 3ed (1996) 553)
The reference to traditional health practitioners and traditional leaders means that when the Children’s Amendment Act comes into force there will be a specific duty on such persons to report aspects of the ukuthwalwa custom that constitute child abuse – no matter what their communities think – in addition to the duty imposed by the Sexual Offences Amendment Act. Those aspects of the ukuthwalwa custom that undermine fundamental rights in the Bill of Rights are clearly unlawful in terms of the Constitution and the Sexual Offences Amendment Act
Summary
The practice of “ukuthwalwa” has been described as a “mock abduction” or an “irregular proposal” aimed at achieving a customary law marriage (Bennett Customary Law in South Africa (2004) 212; cf Burchell Principles of Criminal Law 3ed (2005) 763 fn 10; see Van Tromp Xhosa Law of Persons: A Treatise on the Legal Principles of Family Relations among the AmaXhosa (1947) 63ff; Whitfield South African Native Law 2ed (1948) 115116; and Simons African Women: Their Legal Status in South Africa (1968) 117-119). NOTES/AANTEKENINGE (Address by Minister Manto Tshabalala-Msimang, Minister in the Presidency, during the Lusiksiki Imbizo on Girl Abduction, Forced and Early Marriages 24 March 2009 The Presidency http;//www.thepresidency.gov.za visited 200906-10; Sunday Tribune 31 May 2009 1; and Sunday Times 31 May 2009 3). This aspect of ukuthwalwa is a breach of the common law (R v Sita supra) and the repealed section of the Sexual Offences Act (s 9 of the Sexual Offences Act 23 of 1957 (hereinafter “the Sexual Offences Act”). Part of the problem may be that some rural communities think that cultural practices trump constitutional rights, whereas according to the law the reverse applies
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