What Is The Impact of Ukuthwala on Young Girls and Their Legal Rights?

Ukuthwala is a customary practice found in some Xhosa and Zulu communities in which a young girl is taken — typically with the involvement of her family — to become the wife of an older man, and in its modern form it is treated under South African law as a form of forced child marriage and, in many cases, kidnapping. The practice was formally investigated by the South African Law Reform Commission, and in 2009 the Department of Justice and Constitutional Development publicly stated that ukuthwala, as it is currently practised, constitutes a contravention of the Children’s Act 38 of 2005 and the Marriage Act 25 of 1961, exposes the participants to criminal liability under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, and violates the girl’s constitutional rights to dignity, equality, bodily integrity and the right to be protected from maltreatment, neglect, abuse and degradation. Parents or guardians cannot validly consent to a marriage that contravenes the law, and no cultural justification overrides a child’s right to consent and to the protection afforded by the best-interests standard.

What Ukuthwala Is, and How the Modern Practice Differs from the Customary Form

Ukuthwala has its origins in a customary form of marriage negotiation between families in some Xhosa and Zulu communities, but in its contemporary practice it has become associated with the taking of young girls — sometimes without their consent or the consent of their families — to be married to older men. The historical custom functioned as a preliminary step to a marriage negotiated between two families, with the carrying-away followed by lobola (bridewealth) discussion and the bride’s family approached to formalise the union. The modern, coercive version of the practice bears little resemblance to that template: the girl is usually below the age of majority, has not given free and full consent, and the arrangement is presented as a fait accompli rather than as a starting point for negotiation.

The Department of Justice’s 2009 statement and the South African Law Reform Commission’s subsequent investigation have distinguished the modern, coercive practice from the historical customary context, and have made clear that consent, age and the best interests of the child are the controlling legal considerations. Where a girl is below the age of 18 and is married off without her informed consent, the practice is treated by the law as forced child marriage regardless of whether it is presented by the family as a customary arrangement. The label attached to the conduct — cultural, traditional, or “consented to” by elders — does not change the legal characterisation when the statutory elements are present.

The Legal Framework That Applies

Several pieces of legislation and the Constitution itself bear on whether a particular arrangement is lawful. The framework is layered, with the Constitution at the top, the Children’s Act and the Marriage Act setting the age-and-consent floor, and the Sexual Offences Act and the common law attaching criminal consequences where the conduct crosses certain lines.

Statutes and provisions that govern the modern practice of ukuthwala

Source of law	Key provision	What it requires or prohibits
Constitution of the Republic of South Africa, 1996	Sections 9, 10, 12, 28	Right to equality (s 9), dignity (s 10), freedom and security of the person including the right not to be subjected to violence (s 12), and children’s rights including the right to be protected from maltreatment, neglect, abuse and degradation (s 28).
Children’s Act 38 of 2005	Sections 7 and 12	The child’s best interests are the paramount consideration in every matter concerning the child (s 7); a child may not be given in marriage or engagement below the minimum age, and a child above the minimum age may not be given in marriage without their own consent (s 12).
Marriage Act 25 of 1961	Sections 24, 26 and 31	No marriage is valid without the free and full consent of both parties; a minor under 18 may not marry without the written consent of a judge, and the consent of a parent or guardian is not a substitute for the child’s own consent where the Act requires it.
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007	Section 4 read with section 1	Creates the specific offence of “engaging in a forced marriage,” which includes forcing a person to marry without their free and full consent or through coercion.
Customary Marriages Act 120 of 1998	Sections 3 and 10	Governs the recognition of customary marriages but does not override the minimum-age, consent and best-interests protections of the Children’s Act and the Marriage Act.

Impact on the Girl: Education, Health, and Psychological Wellbeing

The harms of the modern practice are not abstract. Empirical work from KwaZulu-Natal and the Eastern Cape, together with the South African Law Reform Commission’s investigation and the Department of Justice’s 2009 statement, has documented recurring and measurable consequences for the girls affected.

• Education. Girls taken in ukuthwala arrangements commonly leave school, either permanently or for an extended period, with documented effects on their educational attainment and longer-term livelihood prospects. Educational disruption at the secondary-school level is the single most consistent finding in the empirical literature.
• Health. The practice has been associated in the academic literature with early pregnancy and the health risks that follow for adolescent girls, including obstetric complications linked to young maternal age.
• Psychological wellbeing. The psychological effects — loss of childhood, separation from family and peers, and the trauma of coercion — are well documented in the studies hosted on the academic repositories that rank for this query.
• Ongoing violence and inability to seek help. The power imbalance between the young girl and an older husband, combined with social pressure to remain in the marriage, increases the risk of ongoing domestic and sexual violence and limits the girl’s ability to seek help.

When the Practice Becomes a Criminal Matter

The civil-law framework (the Children’s Act, the Marriage Act, the Customary Marriages Act) governs whether a marriage is valid. The criminal-law framework governs whether the conduct that brought the marriage about is an offence. The two questions are separate, and the family cannot lawfully “fix” the criminality of how the girl was taken by afterwards registering a customary marriage.

• Where the girl is taken without her consent and without lawful parental involvement, the conduct may amount to kidnapping — a common-law offence and a statutory offence against the person.
• Engaging in or compelling a forced marriage is a specific statutory offence under section 4 of the Sexual Offences Act, with substantial penalties on conviction.
• Where the girl is below the age of 18, statutory sexual offences and the offences created to protect children under the Sexual Offences Act are engaged.
• A parent or guardian who “consents” to a forced child marriage does not cure the criminality of the conduct; nor does the existence of lobola (bridewealth) payment justify the arrangement in law.

What the Law Says About Consent and “Cultural Justification”

The cultural context in which an arrangement is made is not a licence to bypass the law. No parent, guardian or family member can validly consent to a marriage on behalf of a child in a way that overrides the child’s own consent where the Children’s Act and the Marriage Act require it. Section 31 of the Constitution protects cultural participation, but expressly subjects it to the rights in the Bill of Rights — a cultural context is not a defence to a charge of kidnapping, forced marriage or a statutory sexual offence.

The South African Law Reform Commission’s investigation has considered whether any reform is needed to clarify the law’s application and has not endorsed any customary-based exemption from the minimum-age or consent rules. Any reform that sought to lower protections on cultural grounds would be constitutionally vulnerable under section 28 of the Constitution and the best-interests standard in section 7 of the Children’s Act.

What a Family or Affected Girl Can Do

The legal routes available depend on how imminent the arrangement is, whether the girl has already been taken, and whether the conduct crosses into criminal territory. The options are not mutually exclusive; in practice, more than one of them is usually pursued in parallel.

1. Apply for a protection order under the Domestic Violence Act 116 of 1998. A child in, or at risk of, a ukuthwala arrangement can apply for a protection order, with the family-law practice area of an attorney able to assist with the application.
2. Report the matter to the South African Police Service (SAPS). A family member or community member can report the matter to SAPS, who have a duty to investigate the kidnapping and forced-marriage aspects.
3. Contact a designated child protection organisation or social worker. Where the girl is in immediate danger, urgent contact with the police or with a designated child protection organisation is the first step; the Children’s Court and designated social workers can also be approached to protect the child.
4. Consult a qualified family-law attorney. A family-law attorney can advise on the legal routes available — protection orders, criminal complaints, and where appropriate civil remedies — and on whether a marriage already entered into can be set aside.

South African Law Reform Commission Position and Current Reform Debate

The South African Law Reform Commission investigated ukuthwala and related customary marriage practices; the resulting reports have informed both public understanding and the government’s public condemnation of the coercive form of the practice. The legal framework as it stands already prohibits forced child marriage; reform debate has focused on whether additional statutory clarity is needed and on practical enforcement, rather than on creating a new exception to the age and consent rules. Any proposed reform that would lower protections on cultural grounds would be constitutionally vulnerable under section 28 of the Constitution and the best-interests standard in section 7 of the Children’s Act.

This is general information, not legal advice. If you or someone you know is facing a ukuthwala arrangement — as a child at risk, a parent, or a community member — Burger Huyser Attorneys’ Family Law team can advise on protection orders, setting aside an unlawful marriage, and reporting the matter to the South African Police Service, and the firm’s Criminal Law practice is positioned to assist where the conduct crosses into kidnapping or forced-marriage offences. The firm practises from its head office at 49 First Avenue, Linden, Randburg (011 888 0246) and from branches across Gauteng including Centurion, Pretoria (Menlyn), Bedfordview, Alberton, Sandton, Roodepoort and Midrand. Get in touch at the branch closest to you for a confidential first conversation.

Frequently Asked Questions

Is ukuthwala legal in South Africa?

No — where ukuthwala is practised as a forced child marriage, it is treated as unlawful under the Children’s Act 38 of 2005 and the Marriage Act 25 of 1961, and the participants may face criminal liability under the Sexual Offences Act. The Department of Justice has publicly condemned the modern practice. Cultural context does not justify a marriage that bypasses the law’s age and consent requirements.

Can a parent give consent to a ukuthwala marriage on behalf of their daughter?

No — a parent or guardian cannot validly consent to a marriage that contravenes the Children’s Act or the Marriage Act. Where the girl is under 18, only the High Court or a Children’s Court can authorise a marriage and only after considering the best-interests standard; the girl’s own free and full consent is required in any event.

What are the rights of a girl who has already been taken in a ukuthwala arrangement?

She retains all her constitutional and statutory rights, including the right to dignity, equality, freedom and security of the person, and the right to be protected from maltreatment, neglect, abuse and degradation. She can apply for a protection order under the Domestic Violence Act, report the matter to the police for investigation of kidnapping and forced-marriage offences, and approach a family-law attorney for advice on setting aside any marriage that was entered into unlawfully.

Does the cultural practice of ukuthwala affect a girl’s schooling?

Yes — empirical studies from KwaZulu-Natal and elsewhere document that girls taken in ukuthwala arrangements typically leave school, with material long-term effects on their education and livelihood prospects. The schooling impact is one of the recognised harms of the modern practice.

What is the difference between a customary marriage and ukuthwala as currently practised?

A valid customary marriage under the Customary Marriages Act 120 of 1998 requires the free and full consent of both parties and complies with the minimum-age and best-interests rules in the Children’s Act. Ukuthwala, as practised today, typically fails those requirements — the girl is below the age of majority, has not given free and full consent, and the arrangement is imposed on her without the safeguards the law requires.

What should a family do if a child is at risk of being taken in a ukuthwala arrangement?

Report the matter to the police and consult a family-law attorney urgently. A protection order under the Domestic Violence Act can be sought to prevent the arrangement from being carried out, and a designated child protection organisation or social worker can also be approached to safeguard the child. The sooner an attorney is involved, the easier it is to prevent the arrangement rather than having to undo it afterwards.