“Back home in the Eastern Cape, ukuthwala is normal and has always been, so long as one has the means to pay lobola and if the girl’s family consent to have her married,” a man at the Clare Estate taxi rank at the busy Durban market tells me. Five other men on the taxi from Mbizana agree with him. The abduction of girls is commonplace in their village.
The practice of ukuthwala involves the abduction of a girl or a young woman by a man and his accomplices with the intention of forcing her family to agree to a marriage, and is prevalent in rural parts of South Africa. Ukuthwala is goes hand-in-hand with other offences like kidnapping, sexual assault, and human trafficking.
In its traditional form, ukuthwala is a collusive strategy used by willing lovers to secure marriage negotiations. But over the years the practice has mutated. It’s now often used to sexually exploit girls and young women, particularly in rural parts of the country.
Statistics show that child marriage, involving girls aged between 12 and 17, is rife in South Africa. In KwaZulu-Natal alone, over 25 000 young women have been married, divorced, separated, widowed or are living with a partner or a husband. KZN has the highest number recorded in the country, followed by Gauteng with 15 000 women.
According to the United Nations Children’s Fund (Unicef) Generation 2030: Africa 2.0 report, child marriage rates in Africa have decreased from 44% in 1990 to 35% in 2015. Despite these gains, one in three women were reportedly married before the age of 18. The empowerment of women and girls, especially protecting them against child marriage, is one of Unicef’s key issues of investment for African children.
In February 2014, a 28-year-old man from the Eastern Cape was sentenced to 22 years in prison for rape, human trafficking and assault linked to ukuthwala. Mvumeleni Jezile abducted and repeatedly raped his 14-year-old customary wife, who was sold to him by her family members for R8 000.
Although ukuthwala has been criminalised and has been incorporated into the Trafficking in Persons Act, some people still see it as a normal form of tradition and custom.
Professor Deirdre Byrne, chairperson of the Unisa-Africa Girl Development Programme, believes that the high rate of underage marriages, particularly in KwaZulu-Natal, is the result of poverty and traditional norms.
“The high rate of poverty and very strict traditions regarding gender roles play a huge role,” she said.
Byrne said although forced marriages through ukuthwala have been criminalised, there are still contradictions in the law. “Ukuthwala is illegal because it is statutory rape if the child is under the age of 16 but there’s also a legislation stating that a minor can get married if their parents consent,” she said.
Although KwaZulu Natal has the highest number of underage marriages, there are no task teams or special units designated to deal with it. SAPS spokesperson captain Nqobile Gwala said police deal with ukuthwala cases through with the Family Violence, Child Protection and Sexual Offences units. The police have appealed to community members to ensure that they report such cases to the police, she said.
But many people are still unaware that ukuthwala is against the law. Charlene May, an attorney at the Women’s Legal Centre, said prosecution is unlikely to change behaviour anyway. “It’s not enough that we have a law on paper if we haven’t innovated it in the form of educating people as we normally do with drugs and other things,” she said.
“We need to have education and training programmes that will make people understand that laws are in place in the Constitution, and that certain behaviours are criminal.”
Department of justice and constitutional development spokesperson Solomon Mahlangu told The Daily Vox the department is currently rolling out campaigns in provinces like KZN and the Eastern Cape to raise awareness about children’s rights and why ukuthwala is illegal.
Gender and feminism studies academic, Siphokazi Tau, said that we need to develop more policies that protect women and girl children. “When an issue is directly affecting women, you barely find agency taking place from policymakers, especially the legal side and ministry of women,” she said.
Tau said ukuthwala also carries health implications for children who are victims of the practice. “Often, these are young girls who would arguably be virgins, who would arguably not have access to healthcare, would not be conscious of sexually transmitted infections or sexually related implications. There a lot of of things that these young girls are exposed to, so it [ukuthwala] is problematic in that sense,” she added.
Additional reporting by Mihlali Ntsabo