Ukuthwala Case Study

The resurgence of ukuthwala in a warped form, involving the abduction, assault and rape of women and girl-children, has caused public outrage. There are calls for the abolishment of ukuthwala. Albeit these ‘abductions’ being criticized by traditional leaders and scholars for corrupting the original custom of ukuthwala; they are also unlawful. The purpose of this paper is: to dissect ukuthwala, both in its original and warped form; to deliberate the constitutionality of ukuthwala, and to discuss whether ukuthwala should be abolished.
Ukuthwala, in its original form, is an abnormal mode of initiating marriage negotiations in the Nguni tribe. It imitates a fake abduction whereby a suitor accompanied by his friends ‘kidnap’ a woman of a marriageable
Albeit the Constitution providing that people may partake in a cultural life of their choice and that people who are members of a cultural society may not be declined the right to enjoy their culture, it must be done in a way that is consistent with the Constitution. When the aforementioned rights are read with s 211(3) of the Constitution, which provides that courts are mandated to apply customary law where it is applicable, subject to the provisions of the Constitution and any statute that governs customary law, one may think that persons can practice their customs freely. However, due to the internal limitation clauses in these rights, the women’s and girls’ rights to equality , dignity , privacy , and freedom and security trump over cultural
According to various organisations, ‘ukuthwala’ and the brutality it imposes on women and girl-children contravene on their rights as above-mentioned and goes against concept of ubuntu. The abduction and rape of girl-children is heavily frowned upon by society and ‘ukuthwala’ cannot be used to justify such crimes. Therefore, they argue that ukuthwala should be abolished as it inconsistent with the Constitution and public policy and legislation. Conversely, others argue that warped ukuthwala, performed without the consent of the girl, should be abolished. Traditional leaders such as Mandla Mandela argue that ukuthwala should not be discerned through westernized eyes and that original ukuthwala should be permitted as the woman must actually consent to the act and does not involve any form of abuse. Perhaps, the prescribed ukuthwala should be codified in customary law codes and the adverse ukuthwala criminalized and abolished. Further, section 39(2) of the Constitution provides that courts, tribunals or forum must develop customary law in a manner that reflects the Bill of Rights - therefore courts may develop ukuthwala so that it is consistent with the Bill of Rights and public policy as the Constitutional Court did with regards to primogeniture in the Bhe