The implications of ukuthwala on South Africa's regional and international law obligations

Abstract

This study examined the South African legislative frameworks directly or indirectly dealing with the practice of ukuthwala. The focus was on cases of ukuthwala involving children under the age of 18 years and not on women who freely choose to be married through ukuthwala. The Constitution, Recognition of Customary Marriages Act, Children’s Act, Sexual Offences Act and the Trafficking Act were identified as relevant to this context. These frameworks were studied in order to determine whether South Africa has taken effective measures to combat ukuthwala in compliance with its obligations under the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). The CRC and the ACRWC find application in South Africa through section 39(1) of the Constitution. Under the CRC and the ACRWC, South Africa is obliged to take all appropriate measures, not limited to but including legislative measures, to ensure the rights protected in these instruments to every child within its jurisdiction. Upon an examination of both instruments, it was found that ukuthwala violates a number of rights enshrined therein, including the right to non-discrimination, life, survival and development, the best interests of the child and the right to be heard. It was also found that, although South Africa has legislative frameworks in place which prohibits ukuthwala, the practice remains prevalent despite the existence of such frameworks. In this regard, recommendations which could supplement the legislative measures were duly raised.