Ukuthwala: structured for relevance

This article describes the custom of ukuthwala as a form of customary marriage in historical perspective. This is a practice in terms of which a young male would forcibly take a girl to his home with the ultimate aim of marrying her. Ukuthwala may occur in three forms: firstly where the girl consents to the actions of the male, secondly where an agreement is struck between the families of the girl and the boy and thirdly, where neither the girl nor her family has any knowledge of the intended taking. The article discusses each of these instances in turn. Ukuthwala has been likened to the common law crimes of abduction, kidnapping, assault and rape. The authors consider the presumed conflict between the custom and the common law by analysing the way in which courts have interpreted the custom. Thereafter they consider whether the practice conflicts with provisions of the Bill of Rights. They are of the opinion that the practice is not wholly unconstitutional and that there are portions which can be kept and developed. The last section of the article highlights the duty imposed upon courts to develop customary law in line with the constitution and considers possible ways in which ukuthwala could be developed.