‘Ukuthwala’ is not forced marriage

THE cultural practice of ‘ukuthwala’ is often used to label the abduction, rape or forced marriage of young girls to older men as ‘tradition’.

Reports are widely received from local teachers and community workers about the abuse of even underage girls under the guise of ‘ukuthwala’, while they are in reality trafficked by parents or relatives for profit.

This form of ‘ukuthwala’ occurs when the family is paid ‘lobola’ in return for permission ‘to abduct their daughter’.

But State Advocate Dawn Coleman-Malinga of the KZN Human Trafficking, Harmful Traditional Practices, Pornography, Prostitution and Brothels Task Team, said ‘ukuthwala’ is a method by willing lovers to initiate marriage negotiations and not forced marriage.

This was clarified in the case of Nvumeleni Jezile versus the State, when the accused appealed to the Western Cape High Court Division against his conviction of trafficking, rape and assault of a 14-year-old victim.

The girl was asked to walk to a neighbouring village to run an errand for her uncle, but then discovered R8 000 had been paid as bridal prize for her and that she would be forced to marry an unknown man twice her age.

One day later she became Jezile’s ‘bride’ and he expected her to obey him, cook and clean for him. He also assaulted and raped her.

Jezile was arrested and prosecuted after her escape, but claimed ‘consent’ under the ‘ukuthwala’ system as defence.

True nature of ‘ukuthwala’

Various submissions were received by court to illustrate the real nature of ‘ukuthwala’:

• The woman must be of marriageable age – in customary law considered to be of child-bearing age·

• Consent of both parties is required

• If the woman does not agree, her father can institute civil action against the man’s guardian.

• The parties arrange a mock abduction of the woman at dusk and she puts up a show of resistance for modesty sake

• She is smuggled into the man’s homestead and placed in the custody of the womenfolk to safeguard her person and reputation.

• The man’s father is informed of her presence and his son’s desire to marry her

• Sexual intercourse between the couple is strictly prohibited. If it does occur unwillingly or by coercion, it is punishable by payment of a fine of one head of cattle to the woman’s father. ·

•The man’s family sends an invitation to the woman’s homestead on the day of the mock abduction or the following morning, signalling that the man’s family wished to commence marriage negotiations

• No marriage is possible without consent of the woman’s parents.

• If her family rejects the proposal, she must be returned home with payment of damages.

• If her family accepts, she is returned home to prepare for nuptials and regular ‘lobola’ negotiations.