In view of the SALRC’s proposed Bill, our paper investigates whether South Africa should criminalise ukuthwala or not. The paper examines the advantages and disadvantages of criminalising breaches of ukuthwala by drawing upon the field research findings from the community where the Jezile case originated. It is, therefore, divided into five parts. We discuss South Africa’s existing legislation in the context of ukuthwala. These include, inter alia, the Constitution, the Criminal Law Amendment (Sexual Offences and Related Matters) Act, Children’s Act, Recognition of Customary Marriages Act and the Prevention and Combating of Trafficking in Persons Act. We also highlight the provisions of the Prohibition of Forced and Child Marriages Bill in order to assess the manner in which it seeks to criminalise forced and child marriages due to ukuthwala. Thereafter we discuss the elements associated with the practice with the aim of assessing the merits and demerits of criminalising breaches of ukuthwala. The last part is a conclusion in which we observe that there is a fundamental disjuncture between law reform and practice due to, inter alia, the communities’ lack of knowledge on the current legal framework that seeks to regulate customary marriages. Therefore, unless government prioritises awareness campaigns into the communities that are going to be affected by the proposed law reform, such law, will again be what Himonga calls ‘paper law’.
Presenter biography: Roberta Hlalisa Mgidlana, is a legal Research Assistant for Prof Lea Mwambene at UWC, also an LLM student under supervision of Professor Mwambene and co- supervision of Professor Sloth-Nielsen