Forced marriages: Finally! An end to Ukuthwala

In a move set to close loopholes in four key branches of law, the SA Law Reform Commission on Tuesday proposed far-reaching changes involving the practice of ukuthwala, or forced marriages.

Other than the impact of forcefully taking a bribe, these changes also impact sexual offences, child pornography, the Prescriptions Act, legal fees and access to justice.

In accepting four reports from commission chair Justice Jody Kollapen in Pretoria, Justice and Correctional Services Minister Ronald Lamola said the proposed amendments would have “a significant impact on the lives of South Africans”.

Describing ukuthwala as “the act of taking a marriage partner in unconventional ways with the aim of forcing the girl’s family to enter into negotiations for the conclusion of a customary marriage”, the commission recommended the enactment of new legislation, the Prohibition of Forced Marriage and Regulation of Related Matters Bill.

This will make it:

• A criminal offence for anyone to attempt, conspire with any other person, aid, abet, induce, incite, instigate, instruct, command, counsel or procure another person to enter into a forced marriage or child marriage;
• Possible for victims of forced marriage and child marriage or any person to apply for a forced marriage protection order; and
• Mandatory for a person convicted of ukuthwala to pay compensation to the victim.
  

On sexual offences, pornography and children, the report sought to address gaps in the manner in which the law protected children from being exposed to pornography, child sexual abuse material or from being used to create child sexual abuse material.

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With government pushing for the empowerment of community advice offices to offer counsel to the public for free, Deputy Justice and Correctional Services Minister John Jeffery said the department planned to table legislation before the end of the year to ensure support for these offices.

The commission found that the cost of litigation was one of the main barriers to access to justice. On prescripts, it found anomalies in the law, which allowed creditors to recover prescribed debt in a manner contrary to the principle of extinction contained in Section 10(1) of the Prescription Act.