Is the practise of Ukuthwala violating the rights of our women and children?
In a recent High Court case, S v Jezile, the Judge described Ukuthwala in its aberrant form as being sexual slavery at its best.
What is Ukuthwala?
Ukuthwala is a controversial Customary Law practice in terms of which a man kidnaps a woman and takes her to his homestead. It is not a marriage and may be considered a mock abduction or a staged kidnapping used to kick start the traditional marriage negotiations.
In Jezile the message was clear; Ukuthwala in its aberrant form should not legally be accepted and practiced.
What is the difference between the (harmful) aberrant and traditional form of Ukuthwala?
The aberrant form can be described as a practice that exploits young women, is abusive and has no concern for the wishes of the woman. In its aberrant form, the practice violates several rights of women and children, such as the rights to bodily integrity, human dignity, equality and the right to education.
The essential features of traditional Ukuthwala include the following:
a) The woman must be of marriageable age;
b) Consent of both parties is essential;
c) Consent of the woman’s parents, who also assist in arranging the mock abduction of a woman;
d) Sexual intercourse is strictly prohibited during this period;
e) The man’s family must send a letter to the woman’s homestead, either on the day of the mock abduction or the following morning, in order to notify the woman’s family that she is with him.
Uncertainty
Many will argue that both aberrant and traditional Ukuthwala is undermining and should be disallowed. The failure of the High Court, however, in the Jezile case, to clarify whether Ukuthwala is unconstitutional in both traditional and its aberrant form left somewhat of a gap in our law.
Even in its customary form as a ‘non-harmful’ cultural practice, it is unclear to which extent it can be reconciled with the promotion of the values that underpin a democratic and open society founded on human dignity, equality and freedom.