It is suggested that instead of a prohibitionist stance towards customs that seem to violate human rights norms, a benign accommodation of aspects that promote the positive aspects of culture be adopted. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of consent of the ‘bride’ is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children’s Act are framed in this context. . Introduction The practice of ukuthwala in South Africa has recently received negative publicity, with numerous complaints being recorded. In the first and second quarter of 2009, the media reported that ‘more than 20 Eastern Cape girls are forced to drop out of school every month to follow the traditional custom of ukuthwala (forced marriage)’.  Girls as young as 12 years are forced to marry older men, in some cases with the consent of their parents or guardians.
Commenting on the matter, Congress of Traditional Leaders of South Africa (Contralesa) chairman, Chief Mwelo Nokonyana, said ukuthwala was ‘an old custom that was now being wrongly practiced in several parts of the eastern Transkei. ’ Dr Nokuzola Mdende of the Camagwini Institute also stated ‘that abducting a girl of 12 or 13 is not the cultural practice we know. This is not ukuthwala, this is child abuse. At 12, the child is not ready to be a wife.  At the SA Law Reform Commission ‘Roundtable Discussion on the practice of Ukuthwala’, which was held as part of its preliminary investigation to determine whether the proposal should be included in the Commission’s law reform programme and in an effort to gather information on the subject, it was observed that ukuthwala, like many other customary institutions, has changed radically.
The practice has now taken on other dimensions, including young girls forcibly being married to older men, relatives of the girl kidnapping and taking the girls themselves as wives, and abductions not being reported to the Traditional Authorities. 5] These changed practices around ukuthwala potentially increase the vulnerability of children’s’ rights violations. The main aim of this article is to evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Insofar as the recent media comments are pertinent to some of the conclusions reached in this article, a preliminary discussion of ukuthwala in its differing dimensions is important. For that reason in the second part of this article we trace the history of ukuthwala, and the traditional reasons for, and the different forms of, ukuthwala.
We further discuss the procedure of ukuthwala and the legal position of the practice under customary law. In the third part, we will contextualize the debate of ukuthwala within the constitutional and international rights to culture and equality paradigms. In the fourth part, we proceed by looking at the framework for the consideration of culture and custom in the Children’s Act before discussing the implications of the Children’s Act for ukuthwala. The last part contains some conclusions. 2. Ukuthwala 2. 1 What is ukuthwala?
In South Africa, the custom originated from the Xhosas.  However, although the custom is predominantly practiced among Xhosa speaking tribes, the practice has expanded into different ethnic groups. For example, the Mpondo clan has adopted ukuthwala from Xhosa clans such as the Mfengus.  Young Sotho men, through contact with other tribes, have also adopted the practice which was otherwise foreign amongst them.  Ukuthwala in South Africa enjoys popular support in the areas where it is still practiced. 10] According to a newspaper report, one Chief (a woman) in the region where ukuthwala is practiced said that the young girls who escape from the houses where they are detained whilst awaiting marriage were ‘embarrassing our village’.  The word ukuthwala means ‘to carry’.  It is a culturally legitimated abduction of a woman whereby, preliminary to a customary marriage, a young man will forcibly take a girl to his home.  Some authors have described ukuthwala as the act of ‘stealing the bride’.  Ukuthwala has also been described as a mock abduction or irregular proposal aimed at achieving a customary marriage. 17] From these definitions, we see that ukuthwala is in itself not a customary marriage or an engagement. The main aim of ukuthwala is to force the girl’s family to enter into negotiations for the conclusion of a customary marriage.  (Underlining supplied). The procedure for ukuthwala is as follows: The intending bridegroom, with the help of the one or two friends, will waylay the intended bride in the neighbourhood of her own home, quite often late in the day.  They will then ‘forcibly’ take her to the young man’s home. Sometimes the girl is caught unawares, but in many instances she is caught according to prior plan and agreement.
In either case, the girl will put up a show of resistance to suggest to onlookers that it is against her will, when in fact, it is seldom so. As Bekker explains: ‘The girl, to appear unwilling and to preserve her maidenly dignity, will usually put up strenuous but pretended resistance, for, more often than not, she is a willing party’.  Once the girl has been taken to the man’s village, her guardian or his messenger will then follow up on the same day or the next day and possibly take her back if one or more cattle are not handed to him as an earnest promise for a future marriage. 21] Consequently, if the guardian does not follow her up to take her back, tacit consent to the marriage at customary law can be assumed. After the girl has been carried to the man’s family hearth, negotiations for lobolo between the families of the bride and the groom would then follow. If the families cannot reach an agreement, the girl will return to her parental home, while the man’s family will be liable for damages.  As noted, the main aim of ukuthwala is to force the girl’s family to enter into negotiations for the conclusion of a customary marriage.
It follows, therefore, that if a man abducts a girl but fails to offer marriage, or if he does offer marriage but is deemed by the girl’s guardian to be unacceptable as a suitor, a fine of one beast is payable to the girl’s guardian, who, with his daughter, is said to have been insulted by the thwala without a consequent offer of a marriage, or having been thwala’d by undesirable suitor.  It is important to note that during the process of ukuthwala, it is contrary to custom to seduce a girl. 25] By custom, the suitor, after forcibly taking the girl to his home village, is required to report the thwala to his family head. The family head thereupon gives the girl into the care of the women of his family home, and sends a report to the girl’s guardian. A man who seduces a thwala’d girl is required to pay a seduction beast in addition to the number of lobolo cattle agreed upon and in addition to the thwala beast where no marriage has been proposed. 26] Other safeguards that were put in place for the protection of the thwala and the girl involved were that the parents of the girl were immediately notified after the thwala had occurred; if the thwala had not worked, a beast was supposed to be paid; and finally if a girl fell pregnant consequent upon her seduction, then further additional penalties were also supposed to be paid.  Numerous reasons exist for the practice of ukuthwala, some of which are arguably cogent and weighty.
They include: to force the father of the girl to give his consent; to avoid the expense of the wedding; to hasten matters if the woman is pregnant; to persuade the woman of the seriousness of the suitor’s intent; and to avoid the need to pay an immediate lobolo where the suitor and his or her family were unable to afford the bridewealth. From these reasons, it is apparent that ukuthwala can serve important cultural purposes in those South African communities which live their lives according to cultural norms. However, these reasons are also uggestive of the fact that the girl or the unmarried woman involved is, in some cases, thwala’d without her consent. This provides the link to forced marriage, which then calls into play constitutional and human rights standards. In addition, insofar as the girl who is thwala’d may be aged below 18, issues related to child marriage and early marriage arise which in turn calls for a consideration of some provisions of the Children’s Act 38 of 2005. 2. 2 Forms of Ukuthwala It is generally accepted that the traditional custom of ukuthwala is often carried out with the knowledge and consent of the girl or her guardian.