[notice]A monthly column by Marcel van der Watt, lecturer in the Department of Police Practice at UNISA, former police detective, and current member of the Gauteng Rapid Response Task Team for Human Trafficking.[/notice]
The recent ukuthwala related conviction and sentence of Mvumeleni Jez ile to an effective 22 years in jail for three counts of rape, human trafficking and assault was welcomed by all working in the counter-human trafficking and social justice space. Wynberg Regional Court Magistrate Daleen Greyvensteyn highlighted that the 14-year old victim found herself in a situation of “modern day slavery” after she was sold for R 8000 and forced to marry the accused who held her captive and beat her for sex.
Ukuthwala remains a contentious issue as the challenge in the South African Constitution lies in the paradox between universal individual rights guaranteed in the Bill of Rights and long cherished traditional practices. For those who haven’t heard of ukuthwala or don’t entirely know what it entails, an understanding thereof is the first step towards addressing the criminal elements that may be present. Ukuthwala, as an ancient Xhosa practice means ‘to carry away’. The traditional form of ukuthwala is highlighted by Bekker (in Koyana & Bekker, 2007:139) who describes the practice as a “more romantic” procedure that was sometimes resorted to when an obstacle to marriage, not necessarily imposed by the girl’s guardian, presented itself. According to Koyana and Bekker (2007:141) the genuine formation of a marriage as the essence of ukuthwala was evidenced by the fact that the suitor was not always present when the thwala took place, but left the work in the hands of those who acted in his interest. Koyana and Bekker (2007:139) give a brief illustration of a case to show how the procedure for ukuthwala traditionally took place. They describe the practice as an acceptable custom where onlookers would refrain from any interference, even in the event of ‘crocodile’ tears being shed by the girl who attempted to veil her tacit consent. The tacit consent of the girl being thwalaed, allowed for the preservation of the girl’s maiden dignity and was the fundamental reason for her apparent reluctance and her strenuous, but pretended resistance. For this reason the authors argue that the girl was generally a willing party to the thwala, and therefore the practice of ukuthwala was not necessarily synonymous with a forced marriage (Koyana & Bekker, 2007:140).
Three forms of ukuthwala
Mwambene and Sloth-Nielson (2011: 6-7) distinguish between three forms of ukuthwala. The first form of ukuthwala is where the girl is cognisant of her abduction being planned by her suitor. The different parties are in cahoots with one another and the ‘force’ used basically serves as a veil for the girl’s implicit consent. Secondly, ukuthwala can occur where the families would agree on the anticipated marriage, but the girl is unaware of such an agreement. This type of ukuthwala might occur where the girl would possibly oppose her parent’s choice or where she attracts no suitors, despite the fact that the girl happens to be of high rank. Subsequent to the girl’s thwala and confirmation of both families’ consent to the anticipated marriage, the girl is watched until she gets used to the idea of marriage. With regards to this form of ukuthwala, Mwambene and Sloth-Nielson (2011:7) emphasises that “consent as understood in Western terms (that is, the consent of the bride and bridegroom only) might be more difficult to argue here”. The third form of ukuthwala as proposed by Mwambene and Sloth-Nielson (2011:7) occurs against the will of the girl. She is taken by force to the young man’s family home where after representatives are sent to the girl’s family to open marriage negotiations. The third form of ukuthwala can give way to crimes such as rape and intimidation as well as various human rights violations such as the infringement of the girl’s freedom and her security, and a violation of her dignity and bodily integrity.
The modern day practice of ukuthwala has increasingly been exposed as a mere criminal act which often results in the sexual exploitation and abuse of children. Although an unusual path to marriage, the condoned practice of ukuthwala was targeted at girls or women who were of a marriageable age (Maluleke, 2009:16). Since 2009 there has been a significant increase in reports of children falling victim to the criminal dynamics that underpins the current distorted practice of ukuthwala. Prince (2009:1) reported on some of the experiences communicated by victims after The Sunday Times spoke to dozens of young girls who became victims of ukuthwala. Some of these experiences were reported as follows:
“I screamed and told them to let me go, but they told me to shut up as my husband was waiting for me”
“I screamed until my voice went faint…my mother did not do a thing”
“It feels like I was sold like a slave and that my mother doesn’t love me”
“Elders shoved us (her and the man) into a hut and told me how this man was now going to make me his wife…It was painful. I cried for days”
“I cried; this man could have been my father and he was so frail and sickly”
“I didn’t want to marry a madala; I just wanted to go to school”
These reports had a cascading effect on both public opinion and governmental intervention. Interventions included multi-disciplinary meetings that were held between local government, non-governmental organisations and traditional leaders in the Eastern Cape on how to deal with this issue. In a previous matter related to ukuthwala, three men were sentenced to a total of 16 years imprisonment by the Lusikisiki Regional court in April 2011 after being convicted of the kidnapping of a 15 year old girl. The first accused, who was the suitor, was sentenced to 10 years imprisonment of which five years were suspended on condition that he does not commit the same offence. The remaining two accused were each sentenced to three years imprisonment because they assisted the first accused. Their sentences were suspended for five years on condition that they do not commit the same offence (Oorlog voer teen kriminele element van ukuthwala-praktyk, 2011:6).
The customary practice of ukuthwala will remain a contentious issue and will increasingly be weighed up against the provision of Section 39(3) of the Constitution which states that the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by customary law, as long as they are consistent with the Bill of Rights. The response by the Criminal Justice System in the cases explicated above are evidence that our Constitution has the capacity to address distorted cultural practices which results in the violation of rights and the exploitation of our most vulnerable.
Sources
- Anon. Oorlog voer teen die kriminele element van ukuthwala-praktyk. 2011. Die Burger, 30 August: 6.
- Koyana, D.S. & Bekker, J.C. 2007. The Indomitable Ukuthwala Custom. De Jure, 1:139-144
- Maluleke, J. 2009. Ukuthwala: Let’s protect our children. Justice Today Volume 5. Department of Justice and Constitutional Development.
- Man jailed for marrying, raping girl, 14. 2014. Cape Argus, 14 February. From: http://www.iol.co.za/news/crime-courts/man-jailed-for-marrying-raping-girl-14-1.1646973#.Uv3UQPmSyVM (Accessed 20 February 2014).
- Mwambene, L & Sloth-Nielsen, J. 2011. Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act. African Human Rights Law Journal, 11:1-22.
- Prince, C. 2009. Parents sell girls as child brides. Sunday Times, May 31:1.
* Sections extracted from a study by Van der Watt, M. & Ovens, M. 2012. Contextualizing the practice of Ukuthwala within South Africa. Child Abuse Research: A South African Journal, 13(1):11-26. ISSN 1562-1383.