A CRIMINAL LAW RESPONSE TO THE HARMFUL PRACTICES OF UKUTHWALA

Abstract

This article deals with the criminal consequences of the customary law practice of ukuthwala that has been in the news in the recent past in both print and electronic media, whereby elderly men forcibly take young girls for purposes of marriage. A distinction is drawn between ukuthwala, forced and early marriage in order to clarify the concept of ukuthwala. The article considers the question of whether additional legislation is needed to criminalise the thwala custom. The article concludes that forced and early marriages constitute crimes, are illegal, harmful and have no place in a modern constitutional order. It further provides a response to the legal challenges arising from the customary law practice by means of common law and legislation. In conclusion, it recommends that South Africa does not need separate legislation to criminalise ukuthwala and its variants.