On-line version ISSN 1996-2096
Print version ISSN 1609-073X
Afr. hum. rights law j. vol.11 n.1 Pretoria Jan. 2011
AFRICAN HUMAN RIGHTS LAW JOURNAL
Lea MwambeneI; Julia Sloth-NielsenII
ILecturer, Faculty of Law, University of the Western Cape, South Africa
IIDean, Faculty of Law, University of the Western Cape, South Africa
In this article, the authors evaluate the implications of the Children's Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, as a preliminary procedure to a customary marriage, a young man forcibly takes a girl to his home. In recent times, the practice has taken on other dimensions, including very young girls being married to older men and charges of abduction being laid. Questions arise relating to the impact of constitutional principles upon this customary law and practice. It is suggested that, instead of adopting an a priori prohibitionist stance towards customs that seem to violate human rights norms, benign accommodation that promotes the positive aspects of culture should be sought. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of the consent of the 'bride' is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children's Act 38 of 2005 are framed in this context.
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* LLB (Hons) (Malawi), LLM, LLD (Western Cape); email@example.com
** BA LLB (Stellenbosch), LLM (Cape Town), LLD (Western Cape); firstname.lastname@example.org. The authors co-presented an earlier version of this article at a conference on 'Relocation, forced marriage and international child abduction' at London Metropolitan University, Centre for Family Law Practice on 30 June 2010.
1 The Herald 6 April 2009; Sunday Times 31 May 2009.
2 The Herald (n 1 above). See, too, 'The community of KwaCele, near Lusikisiki, has promised to end the practice of ukuthwala' Media 24.com 24 March 2011.
3 The Herald (n 1 above).
4 This was convened on 30 November 2009 as part of its preliminary investigation to determine whether the proposal should be included in the Commission's law reform programme and in an effort to gather information on the subject. Dr Mwambene attended this forum and short notes of the papers presented are on file.
5 D Ntsebeza 'Background to the investigation of ukuthwala' presented at the SA Law Reform Commission (n 4 above).
6 M Ngcobo Presentation to the Portfolio Committee on the role of the Department of Social Development on ukuthwala, 15 September 2009 http://www.pmg.org.za/files/docs/090915ukuthwala.ppt (accessed 9 June 2010).
7 JC Bekker et al Introduction to legal pluralism in South Africa (2006) 31.
8 Ngcobo (n 6 above).
9 JC Bekker Customary law in Southern Africa (1989) 98.
10 The prevalence of the custom nowadays can be depicted from what DS Koyana & JC Bekker 'The indomitable ukuthwala custom' (2007) De Jure 139 note: 'From enquiries that we made and on the basis of our own observations we are assured that the thwala custom is still widely practised in Nguni communities.'
11 This was a response to a report in Sunday Times 31 May 2009 3 that the current practice of ukuthwala also takes the form of detaining these girls against their will in guarded huts and forcing them to have sex with their 'husbands'. They allegedly get beaten and humiliated should they try to escape.
12 DS Koyana Customary law in a changing society (1980) 1.
13 A customary marriage is a relationship which concerns not only the husband and wife, but also the family groups to which they belonged before the marriage. It is also defined as a marriage which is validly concluded by a lobolo agreement.
14 Koyana (n 12 above).
15 E Curran & E Bonthuys 'Customary law and domestic violence in rural South African communities' (2005) 21 South African Journal on Human Rights 607 615.
16 It should be noted that 'irregular' did not mean 'unlawful'.
17 TW Bennett Customary law in South Africa (2004) 212.
18 Bekker et al (n 7 above) 31 (our emphasis). It should, however, be observed that ukuthwala can be distinguished from the common law abduction. At common law, the crime of abduction has been described as the unlawful removal of a minor from the control of her guardian with the intention of violating the guardian's potestas and of enabling somebody to marry her or have sexual intercourse with her. On the other hand, ukuthwala is lawful in the society that designed it; there is no ukuthwala of males; and lastly, the purpose of ukuthwala is to negotiate a marriage, not conclude it, and sexual intercourse is customarily not the intention.
19 Bekker (n 9 above) 98; Koyana & Bekker (n 10 above) 139.
20 Bekker (n 9 above) 98.
21 As above.
22 Curran & Bonthuys (n 15 above) 615.
23 Mostly, among the Pondo, the Fengu and the Bhaca, and possibly other Cape communities.
24 Bekker (n 9 above) 98.
25 As above.
26 Koyana & Bekker (n 10 above) 141.
27 F Mdumbe 'International and domestic legal frameworks impacting on ukuthwala' presented at the SA Law Reform Commission Roundtable (n 4 above).
28 It should be observed that before the Recognition of Customary Marriages Act 1998, consent of the girl's father was essential to the validity of the customary marriage. It is, moreover, argued that this requirement may still be necessary because sec 3(b) of the Recognition of Customary Marriages Act provides that 'the marriage must be negotiated ... in accordance with customary law'. Unless the last phrase is read as referring only to ceremonial aspects of customary law, and the payment of lobola, the requirement of parental consent (as at customary law) is also a requirement for a valid customary marriage under the Act. See further n 37 below.
29 Curran & Bonthuys (n 15 above) 615.
30 Nkupeni v Numunguny 1938 NAC (C&O) 77, as cited by Bennett (n 17 above) 213.
31 R v Swartbooi 1916 EDL 170; R v Sita 1954 4 SA 20 (E), as cited by D McQuoid-Mason 'The practice of ukuthwalwa: The Constitution and the Criminal Offences and Related Matters Act' (2009) 30 Obiter 716.
32 R v Sita (n 31 above). In the constitutional era, however, the common law crime of abduction might be unconstitutionally suspect, in that it focuses on a violation of parental authority and ignores the views and wishes of the child.
33 Bekker et al (n 7 above) 31.
34 LAWSA Indigenous law 32 (2009) para 89.
35 As above.
36 M Herbst & W Du Plessis 'Customary law v common law marriages: A hybrid approach in South Africa' (2008) 12 Electronic Journal of Comparative Law 6. [ Links ]
37 The 1998 Recognition of Customary Marriages Act does not make provision for ukuthwala. It has, however, put beyond doubt the necessity for the consent of the bride to a customary marriage. In terms of sec 3(1) of the Recognition of Customary Marriages Act, the consent of both spouses is necessary for the validity of a customary marriage. (The consent of the guardian is discussed in n 28 above).
38 Bekker et al (n 7 above) 31.
39 Bennett (n 17 above) 212.
40 K Woods 'Contextualising group rape in post-apartheid South Africa' (2005) 7 Culture, Health and Sexuality 303 313. [ Links ]
41 LAWSA (n 34 above) para 89; Bekker (n 9 above) 98.
42 Curran & Bonthuys (n 15 above) 616.
43 Art 1 UN Charter; art 2 Universal Declaration; art 2 ICESCR; art 2(1) ICCPR; art 2 CEDAW; arts 2 & 3 African Charter.
44 RJ Cook 'Women's international human rights law: The way forward' in RJ Cook (ed) Human rights of women: National and international perspectives (1994) 3. [ Links ]
45 Cook (n 44 above). See, eg, art 18 of the African Charter; art 1 of CEDAW; and art 24(3) of CRC.
46 Bhe & Others v Magistrate Khayelitsha (Commissioner for Gender Equality as Amicus Curiae) 2005 1 BCLR 1 (CC); 2005 1 SA 580 (CC).
47 General Recommendation 21 (13th session, 1994) http://www.un.org/women-watch/daw/cedaw/recommendations/recomm.htm (accessed 20 August 2010).
48 South Africa became a party to the African Children's Charter on 7 January 2000.
49 Art 1(1) African Children's Charter.
50 Art 2 African Children's Charter.
51 This significance is appreciated when the definition of a child under the African Children's Charter is contrasted with the definition of a child provided by CRC. CRC defines a child as 'every human being below the age of 18 years unless, under the laws applicable to the child, majority is attained earlier'. Marriage would typically result in majority status being attained.
52 B Mezmur 'The African Children's Charter versus the UN Convention on the Rights of the Child: A zero-sum game?' (2008) 23 South African Public Law 20.
53 The Protocol, which entered into force on 25 November 2005, is the first specialised gender-neutral instrument for the protection of women's rights in Africa. It was adopted by the Assembly of the Heads of State and Government of the African Union at its 2nd ordinary session, on 11th July 2003 in Maputo, Mozambique. It was promulgated out of concern by the AU that women in Africa continue to be victims of discrimination and harmful practices (see Preamble to the African Women's Protocol).
54 Art 6(a) African Women's Protocol.
55 Art 6(b) African Women's Protocol.
56 L Mwambene 'The impact of the Bill of Rights on African customary family laws: A study of women's rights in Malawi with some reference to developments in South Arica' unpublished LLD thesis, University of the Western Cape, 2009 165.
57 Secs 30 & 31 Constitution of the Republic of South Africa 1996.
58 TW Bennett 'Conflict of laws' in Bekker et al (n 7 above) 18.
59 G Devenish A commentary on the South African Bill of Rights (1999) 421.
60 Art 27 of the Universal Declaration states: '(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.' The right to culture is also an integral part of other fundamental rights enunciated in the Universal Declaration, such as freedom of conscience, expression and religion.
61 South Africa ratified this treaty in July 1996.
62 JR Levesque Culture and family violence: Fostering change through human rights law (2001) 95-96.
63 R Cook 'State accountability under the Convention on the Elimination of All Forms of Discrimination Against Women' in Cook (n 44 above) 228 234-235.
64 J Sloth-Nielsen & B Mezmur 'Surveying the research landscape to promote children's legal rights in an African context' (2007) 7 African Human Rights Law Journal 330 335-336 observe that '[h]uman rights documents continually recognise that culture is an area that must be protected. However, culture should be harnessed for the advancement of children's rights. But when it appears that children are disadvan-taged or disproportionately burdened by cultural practice, the benefits of the cultural practice and the harm of the human rights violation must be weighed against each other. How to strike a necessary balance between culture and children's rights is an issue that should continue to engage the minds of scholars.'
65 See also art 2 of CEDAW, which requires '[s]tate parties ... by all appropriate means and without delay ... [to] undertake ... (f) ... appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women'.
66 Arts 3, 9, 20, 21 & 40 CRC.
67 Arts 5, 12, 14 & 40 CRC.
68 Art 2 & Preamble CRC.
69 Arts 21, 28, 39, 40 & Preamble CRC.
70 Art 1(3) African Children's Charter.
71 Art 5 African Women's Protocol.
72 F Banda 'Building on a global movement: Violence against women in the African
context' (2008) 8 African Human Rights Law Journal 1 16.
73 C Nyamu-Musembi `Are local norms and practices fences or pathways? The example
of women's property rights', as cited by F Banda Women, law and human rights: An
African perspective (2005) 256.
74 B Ibhawoh 'Between culture and constitution: Evaluating the cultural legitimacy of
human rights in the African state' (2000) 22 Human Rights Quarterly 838 839.
75 At the discussion forum convened by the SA Law Reform Commission (n 4 above), most people were of the view that there was nothing wrong with ukuthwala as it was originally practised and that, despite the recent distortions of the practice, the custom should not be outlawed.
76 AA An-Na'im 'State responsibility under the international human rights law to change religious and customary laws' in Cook (n 44 above) 167 173-175 argues that, unless international human rights have sufficient legitimacy within particular cultures and traditions, their implementation will be thwarted, particularly at the domestic level, but also at the regional and international levels. Without such legitimacy, it will be nearly impossible to improve the status of women through the law or other agents of social change.
77 E Grant 'Human rights, cultural diversity and customary law in South Africa' (2006) 50 Journal of African Law 2 reflects on the difficulties of legal pluralism in relation to the Bhe case: 'As the judgment shows, on one level, reconciling equality and culture is simply a matter of identifying those aspects of customary laws which offend the constitutional guarantee of equality, and striking them down. On the other level, it required the striking down of the male primogeniture rule in customary laws as incompatible with the right to gender equality. What to put in its place is a far more complicated matter. It is complicated not merely because of practical problems which preoccupied the majority of the court in Bhe case, but because of potentially contradictory demands of equality and the maintenance of legal dualism.'
78 Christian Education of South Africa v Minister of Education 2000 4 SA 757 (SCA) 711 para 26.
79 See also T Maseko 'The constitutionality of the state's intervention with the practice of male traditional circumcision in South Africa' (2008) Obiter 192.
80 Our emphasis.
81 See J Sloth-Nielsen & B Mezmur 'A dutiful child: The implications of article 31 of the African Children's Charter' (2008) 52 journal of African Law 159.
82 See secs 12(4), (5), (6) & (7) in respect of virginity testing, and secs 12(8), (9) & (10) in respect of male circumcision. Regulations 3-6 elaborate these provisions further. A detailed consideration is beyond the scope of this article. Suffice it to mention that the provisions on virginity testing were particularly contested during parliamentary hearings, and led to a compromise provision which sees prohibitions in place for the practice where the child to be subjected to the practice is below the age of 16 years, accompanied by the enactment of regulations prescribing how virginity testing is to be performed to comply with the Act where the child is over 16 years and furnishes her consent. One of the authors of this article was a member of the team which drafted the regulations submitted to the Department of Social Development outlining the further requirements for the practice to be conducted in conformity with the Act.
83 See, eg, the prior work of Koyana & Bekker (n 10 above); Bennett (n 17 above).
84 See also art 12 of CRC.
85 Sec 305 is the overarching penalties clause of the Act.
86 As far as contravening the Act is concerned, there may well be criminal sanctions derived from other common law or statutory offences, however.
87 Art 21(2) of the African Children's Charter prohibiting both child marriage and betrothal.
88 Which in turn raises the potentially (indirectly) discriminatory application of this provision, since questions might arise as to which children are protected by which set of laws setting a minimum age for marriage.
89 Act 120 of 1998.
90 See the discussion of South African 'law' as including customary law in LAWSA (n 34 above).
91 Sec 17 of the Act.
92 As low as 12 years for girls and 14 years for boys, linked to the presumed age of puberty.
93 P Mahery & P Proudlock 'Legal ages in South African law' (2010) Children's Institute, University of Cape Town. Note that the Civil Unions Act 17 of 2006 sets a minimum age of 18 for the conclusion of a valid civil union.
94 The argument that sec 12(2)(a) refers to the minimum age for marriage set in the Marriage Act is reinforced if regard is had to the provisions of sec 12(2)(b) which refers to protections for persons above the minimum age of marriage. Since the Act as a whole applies to persons below the age of 18 only, 'persons above the age of marriage' referred to in sec 12(2)(b) must mean some other age, that is, one below the age of 18 years.
95 Under customary law, the consent of the father was a sine qua non, regardless of the age of the girl. Tacit consent can be inferred from the circumstances. Should the father, eg, accept lobolo or allow the couple to live together as man and wife, consent can be inferred.
96 Arranged marriages are not mentioned by name; there also the question of consent can be problematised when severe pressure is brought to bear on a would-be child bride, often over a period of time, and she ultimately does in fact furnish consent, but for fear of prejudicing family relationships.
97 See the UK Forced Marriage (Civil Protection) Act 2007 and the Multi-Agency Practice Guidelines Handling Cases of Forced Marriage of June 2009 issued by the Forced Marriage Unit of the Ministry of Justice. See further H Patel & A Guha 'Forced marriage' (2010) 1 journal of Family Law and Practice 41.
98 LAWSA (n 34 above) para 138.