THE REQUIREMENTS OF VALID CUSTOMARY PRACTICE OF UKUTHWALA

The customary practice of ukuthwala has come under the spotlight in recent times because of its connection to human rights violations. A series of cases in which young girls have been abducted and forcibly married off to much older men has captured national attention. One of these cases is Jezile v S and Others WCC (unreported case no 127/2014, 23-3-2015).

Ukuthwala in its traditional form is a collusive strategy by the willing lovers to secure marriage negotiations. In this form it has been described as ‘harmless, romantic and a charming age-old custom’.

Certain requirements must be met to qualify the custom as ukuthwala, namely:

  1. that there must be consent between the parties;
  2. sexual intercourse is prohibited during this period;
  3. the woman must of marriageable age;
  4. the father of the man must be informed of the presence of the woman in his home and of his son’s desire to marry her;
  5. the man’s family must then send an invitation to the woman’s family to inform them that they wish to commence marriage negotiations.

In the Jezile case, the court decided that all attempts at ukuthwala that did not satisfy these requirements were invalid and therefore constituted criminal acts.

The observance of customary law is important in the South African context and it is important that customary law be preserved, nurtured and respected. Public awareness of the requirements of valid ukuthwala must be stimulated in order to discourage criminal acts purporting to constitute ukuthwala.

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