What Are the Requirements for the Custom to Qualify as Ukuthwala?

Under South African law, a custom will qualify as ukuthwala — and not as a criminal forced marriage or abduction — only if four requirements are met: the bride consents (genuinely, not as a feigned cry), the abduction is a mock or formal act rather than a real forcible taking, the bride’s family is then approached to negotiate the customary marriage, and lobola is paid or offered to the bride’s father or guardian. The Constitutional Court protects the right to culture under section 31 of the Constitution, but that protection is expressly subject to the Bill of Rights — and section 12(1) of the Children’s Act 38 of 2005 makes any “social, cultural and religious practice” detrimental to a child’s wellbeing unlawful regardless of cultural origin. The Supreme Court of Appeal’s 2015 decision in Jezile v S confirmed that a ukuthwala defence to a criminal charge fails when the practice no longer matches the codified customary-law form, which required the bride’s consent.

What “Ukuthwala” Literally Means — and What It Is in Customary Law

The word ukuthwala in Nguni languages literally means “to carry.” The Southern Sotho equivalent is tjhobediso, and the practice is now broadly characterised as bride kidnapping or “marriage by capture” in mainstream reporting — though, as explained below, that characterisation only describes the modern abusive form. The custom originated among Xhosa-speaking tribes but has been reported across other ethnic groups, including the Mpondo and various Sotho groupings.

Ukuthwala is a preliminary procedure to a customary marriage, not a marriage in itself. Its main historical purpose was to compel the girl’s family to enter into marriage negotiations — the lobola discussions — by the social pressure of the carrying-away having already taken place. The substantive customary-law topic, once a marriage is concluded, is governed by the Recognition of Customary Marriages Act 120 of 1998. The preliminary procedure predates that codification.

The Three “Forms” of Ukuthwala That Customary Law Recognises

South African legal scholarship identifies three distinct versions of the custom. Only the first two have any defensible claim to be ukuthwala in the Constitutional Court’s sense of “living custom.”

Form	How it works	Legal status
Form 1 — Mock abduction / collusion form	The girl is aware of the intended carrying-away, and the “force” is for appearances only. The custom functions like elopement under customary law, and the bride’s consent is the operative element.	Defensible as ukuthwala where consent is genuine.
Form 2 — Joint family-arranged form	The bride is taken to the man’s family but both families have already given consent to the marriage. Lobola negotiations follow, and the girl is “watched” until she accedes.	Defensible as ukuthwala where the bride’s consent is confirmed.
Form 3 — Abduction against the bride’s will	The girl is taken forcibly; emissaries are then sent to open negotiations; the family may refuse, in which case a beast is payable to her guardian and she is returned.	Not ukuthwala; prosecuted under ordinary criminal law.

Forms 1 and 2 — the consent-bearing forms — are the only ones that engage any of the customary-law protections. Form 3 is the modern abusive practice that has prompted national attention, including the 2009 reporting that more than 20 Eastern Cape schoolgirls per month were being forced to leave school, and reports of abductees as young as twelve being matched with men in their fifties and sixties.

The Four Requirements for a Custom to Qualify as Ukuthwala

The following checklist is the practical answer to whether a given carrying-away is a valid ukuthwala. The four elements are cumulative — the absence of any one of them displaces the practice from the shelter of customary law.

1. Consent of the bride. The most frequently cited and most litigated element. Codified customary law required the bride’s consent; without it, the practice is forced marriage, not ukuthwala.
2. A “pretend” or mock abduction. The formal carrying-away is symbolic rather than a real forcible taking. A real abduction removes the custom from any legal shelter.
3. Family negotiation that follows. Emissaries are sent to the bride’s family to open marriage negotiations. Refusal by the family terminates the custom and triggers damages — one beast to the guardian under the traditional customary-law rule.
4. Lobola (bridewealth) paid or offered to the bride’s father or guardian. The traditional delictual and marriage-validating element. The abductor’s family remains liable for damages if lobola is not paid, even where the marriage does not proceed.

What Happens When One of the Requirements Is Missing

The consequences differ depending on which element is absent. The table below sets out the practical legal result for each missing element.

Missing element	Legal consequence
Bride’s consent	Criminal charges: abduction, kidnapping, rape where sexual contact occurs; the custom defence fails.
Mock character of the abduction	A real abduction is a criminal offence in itself; the statutory protection under the Recognition of Customary Marriages Act does not apply.
Family negotiation	The custom procedure is incomplete; no valid customary marriage can follow.
Lobola payment	Delictual liability to the girl’s guardian (one beast under the traditional rule); the family may pursue a civil damages claim.

The Constitutional Framework: Cultural Rights versus Children’s Rights

The Constitution protects cultural practice, but it does so on terms that the Children’s Act then limits.

• Section 30 and section 31 of the Constitution protect the right to participate in cultural life and to enjoy cultural rights — but section 31 expressly subjects those rights to the Bill of Rights.
• Section 12(1) of the Children’s Act 38 of 2005 gives every child the right “not to be subjected to social, cultural and religious practices which are detrimental to his or her wellbeing.” A practice that lacks the bride’s consent engages this provision directly.
• Section 12(2)(a) of the Children’s Act prohibits giving a child below the minimum age for marriage in marriage or engagement.
• Section 12(2)(b) prohibits giving a child above the minimum age in marriage or engagement “without her consent.”
• Section 305 of the Children’s Act creates the penal sanctions for these offences.

One complexity the statute leaves unresolved: the Marriage Act 25 of 1961 still permits marriage as young as fifteen with ministerial consent, which complicates the “minimum age” reference in section 12(2)(a). The Department of Justice and Constitutional Development has consistently treated any ukuthwala of a school-age child as falling outside the protective scope of the custom.

Jezile v S and the Codified Customary-Law Standard

Jezile v S (CCT 53/14) [2015] ZACC 31 is the Supreme Court of Appeal decision that tested the ukuthwala defence to criminal charges. The case arose from the Eastern Cape and is the operative authority for the proposition that ukuthwala is not a blanket defence to abduction and related crimes.

The court treated the codified customary-law form of ukuthwala — which required the bride’s consent — as the reference standard. Where the proven facts do not match that codified form, the cultural-practice defence to abduction and related charges fails and the accused is convicted on the ordinary criminal-law elements. Jezile remains the case practitioners cite when the cultural-practice defence is raised in a criminal prosecution.

The “Three Definitions of Custom” — Codified, Living, and Historical

South African law recognises three competing definitions of “custom,” and the validity of any claimed ukuthwala depends on which definition the practice matches.

Definition	What it covers	Application to ukuthwala
Codified custom	The version of customary law written down during the colonial and apartheid period.	This version, in the case of ukuthwala, “generally required young women’s consent” — and is the reference standard the courts apply.
Living custom	The version the Constitutional Court treats as the legally authoritative form, defined by current community practice and more flexible than the codified version.	Where the current community practice of the relevant group supports a consent-bearing ukuthwala, the living-custom analysis will recognise it.
Historical custom	The pre-colonial practice.	Carries moral authority but not the same legal weight as codified or living custom.

The modern abusive form — the carrying-away of girls as young as twelve to men several decades older — matches none of the three definitions. That is why it is consistently treated as a crime rather than a custom.

When the Custom Is Not a Custom — Criminal and Civil Consequences

Where one or more of the qualifying elements is missing, the conduct falls outside the custom and engages the ordinary criminal, civil, and statutory protection regimes.

Criminal charges available to the victim

• Abduction
• Kidnapping
• Rape (where sexual contact has occurred)
• Trafficking in persons, where the statutory elements are met

Civil remedies

• Annulment of the resulting marriage if one was concluded
• Damages for pain and suffering, lost educational opportunities, and long-term medical needs
• Maintenance claims

Statutory and social protection

• The Domestic Violence Act 116 of 1998 permits protection orders against family members involved in the abduction
• SASSA social grants are available in appropriate cases

The Department of Justice and Constitutional Development publishes a dedicated public-information brochure through its Gender Issues Directorate confirming each of these remedies.

What an Attorney Practising in This Area Tends to Look For

A practitioner advising on a ukuthwala-related matter — whether for the alleged victim, the accused, or a family member — will typically work through a structured set of threshold questions before advising on the merits.

• Whether the bride’s consent is genuinely present, or feigned or coerced. This is the threshold question in any ukuthwala-related police or prosecution matter.
• Whether the carrying-away is real or symbolic — the Jezile v S distinction.
• Whether the alleged customary-law requirements (mock abduction, family negotiation, lobola) are in fact engaged.
• Whether the matter is properly framed under the Children’s Act 38 of 2005 (sections 12 and 305), the Recognition of Customary Marriages Act 120 of 1998, or the general criminal law (abduction, kidnapping, rape).
• Whether a protection order under the Domestic Violence Act 116 of 1998 is appropriate, particularly where family members are complicit.

An experienced family-law or criminal-law practitioner will resolve these threshold questions before turning to remedies — because each one determines which statute and which forum the matter engages. Burger Huyser Attorneys’ family-law team routinely handles this kind of threshold analysis across its Gauteng branches, with the Bedfordview and Linden, Randburg offices most often fielding enquiries that involve customary-law and children’s-court overlap.

Local Resource: Where Ukuthwala Arises and How the Framework Applies Nationally

Frequently Asked Questions

Does ukuthwala still exist as a legally recognised custom in South Africa?

Yes, but only in the consent-bearing forms. The Constitutional Court recognises living custom as a source of legal authority, and codified customary law includes a form of ukuthwala that required the bride’s consent. The modern abusive form — abduction of a child without consent — is not recognised as a custom and is instead prosecuted as a criminal offence.

What is the most important requirement for a custom to qualify as ukuthwala?

The bride’s consent. Both the codified customary-law form and the Constitutional Court’s living custom analysis treat consent as the decisive element. Without it, the practice is forced marriage, not ukuthwala, and the cultural-practice defence to criminal charges is unavailable.

Is the consent of the bride’s parents also required?

Family consent is part of the post-ukuthwala procedure — the family’s role is to negotiate the marriage after the carrying-away. If the parents refuse, the traditional rule is that a beast is paid to the girl’s guardian and the girl is returned. The bride’s own consent, however, is treated as the threshold legal element at the level of the Constitutional Court and the Children’s Act.

How does the Jezile v S case affect ukuthwala today?

Jezile v S (CCT 53/14) [2015] ZACC 31 is the operative authority that the ukuthwala defence fails when the proven facts do not match the codified customary-law form — that form required the bride’s consent. The case is the standard reference when the cultural-practice defence is raised in a criminal prosecution.

At what age does ukuthwala become a criminal matter rather than a custom?

Where the bride is below the minimum age for a valid marriage under the Marriage Act 25 of 1961 (which still permits marriage from 15 with ministerial consent), the matter falls under section 12(2)(a) of the Children’s Act 38 of 2005 and is treated as a child-protection and criminal-law matter. Where the bride is above the minimum age but consent is absent, section 12(2)(b) of the Children’s Act applies.

Can a customary marriage that resulted from ukuthwala be declared invalid?

Yes. Where the consent or age requirements were not met, the marriage is vulnerable to annulment. The Recognition of Customary Marriages Act 120 of 1998 sets the validity requirements; the Children’s Act 38 of 2005 provides additional grounds for annulment where a child was given out in marriage without the protections the Act requires.

Is lobola required for a custom to qualify as ukuthwala?

Lobola is the traditional element that follows the carrying-away: under the codified customary-law form, if no marriage is concluded, the abductor’s family remains liable for one or more head of cattle to the bride’s father or guardian. It is not a validity requirement for the initial act of ukuthwala, but it is the customary-law marker that the carrying-away was the prelude to a marriage rather than a free-standing abduction.

What can a victim of forced ukuthwala do?

Open a criminal case (abduction, kidnapping, rape, trafficking in persons are all available charges where the elements are met); apply for a protection order under the Domestic Violence Act 116 of 1998 against family members involved; pursue civil damages for pain and suffering, lost educational opportunities, and long-term medical needs; seek annulment of the marriage if one was concluded; and apply for SASSA social grants where appropriate.

Need advice on a customary-law or children’s-court matter? The Family Law team at Burger Huyser Attorneys handles contested customary marriages, children’s-court applications, and related protection-order work across the firm’s Gauteng branches. Enquiries can be directed to the Bedfordview office on 011 201 7190 or the Linden, Randburg head office on 011 888 0246, Monday to Friday, 7:30am to 4:30pm.