Benign Accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act

This article evaluates the implications of the Children’s Act 38 of 2005 for ukuthwala. As a preliminary procedure to a customary marriage, the ukuthwala is a practice whereby, a young man forcibly takes a girl to his home. The practice, in recent times, has taken on other dimensions, including very young girls being married to older men and charges of abduction being laid. Questions arise relating to the impact of constitutional principles upon this customary law and practice. It is suggested that, instead of adopting an a priori prohibitionist stance towards customs that seem to violate human rights norms, benign accommodation that promotes the positive aspects of culture should be sought. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of the 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 38 of 2005 are framed in this context.