THE PRACTICE OF “UKUTHWALWA”, THE CONSTITUTION AND THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT

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 This aspect of ukuthwalwa is a breach of the common law and the repealed section of the Sexual Offences Act (s 9 of the SexualOffences Act 23 of 1957.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.