CRW2603
Assignment 1 Semester 1 2026
Unique number:
Due Date: March 2026
UKUTHWALA AND THE LAW IN SOUTH AFRICA (2 ESSAYS PROVIDED)
Ukuthwala is a customary practice in South Africa that is related to marriage negotiations
and the crime of kidnapping and abduction, as well as possible rape and sexual assault. It is
traditionally understood as a process where a man and his family initiate marriage
negotiations by symbolically taking a woman to his home. In its original and accepted form,
this practice was not meant to involve violence or coercion, but rather formed part of cultural
processes that led to lobola negotiations and eventual marriage.1
However, over time, the practice has been misused. In some cases, young girls are taken
without their consent and forced into marriage. This distortion has raised serious legal and
human rights concerns. South African law recognises customary practices, but only to the
extent that they are consistent with the Constitution.1
Terms of use
By making use of this document you agree to:
Use this document as a guide for learning, comparison and reference purpose,
Terms of use
Not to duplicate, reproduce and/or misrepresent the contents of this document as your own work,
By making use of this document you agree to:
Use this document
Fully accept the consequences
solely as a guide forshould you plagiarise
learning, reference,or and
misuse this document.
comparison purposes,
Ensure originality of your own work, and fully accept the consequences should you plagiarise or misuse this document.
Comply with all relevant standards, guidelines, regulations, and legislation governing academic and written work.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is" without any express or
implied representations or warranties. The author accepts no responsibility or liability for any actions taken based on the
information contained within this document. This document is intended solely for comparison, research, and reference purposes.
Reproduction, resale, or transmission of any part of this document, in any form or by any means, is strictly prohibited.
, +27 81 278 3372
UKUTHWALA AND THE LAW IN SOUTH AFRICA (2 ESSAYS PROVIDED)
Ukuthwala is a customary practice in South Africa that is related to marriage
negotiations and the crime of kidnapping and abduction, as well as possible rape
and sexual assault. It is traditionally understood as a process where a man and his
family initiate marriage negotiations by symbolically taking a woman to his home. In
its original and accepted form, this practice was not meant to involve violence or
coercion, but rather formed part of cultural processes that led to lobola negotiations
and eventual marriage.1
However, over time, the practice has been misused. In some cases, young girls are
taken without their consent and forced into marriage. This distortion has raised
serious legal and human rights concerns. South African law recognises customary
practices, but only to the extent that they are consistent with the Constitution.2
Arguments against criminalisation
Some people argue that ukuthwala should not be criminalised because it is part of
African customary law, which is recognised by the Constitution. Section 211 of the
Constitution recognises customary law, provided it is consistent with the
Constitution.3 From this perspective, criminalising ukuthwala completely would
ignore cultural identity and traditions that have been practised for generations.
It is also argued that when ukuthwala is practised properly, it does not involve force
or abuse. Instead, it is seen as a symbolic act that forms part of marriage
negotiations between families. In such cases, the woman’s consent is present, and
the process is respectful and controlled.4 Supporters of this view believe that the
problem is not the custom itself, but the misuse of the custom by individuals who act
outside its original purpose.
Arguments for criminalisation
1
L Mwambene and RH Mqidlana, ‘Should South Africa Criminalise Ukuthwala Leading to Forced
Marriages and Child Marriages?’ (2021) Potchefstroom Electronic Law Journal s 5.
2
Constitution of the Republic of South Africa, 1996 s 2.
3
Constitution of the Republic of South Africa, 1996 s 211.
4
Mwambene and Mqidlana (n 1) sec 5.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is"
without any express or implied representations or warranties. The author accepts no responsibility or
liability for any actions taken based on the information contained within this document. This document is
intended solely for comparison, research, and reference purposes. Reproduction, resale, or transmission
of any part of this document, in any form or by any means, is strictly prohibited.
Assignment 1 Semester 1 2026
Unique number:
Due Date: March 2026
UKUTHWALA AND THE LAW IN SOUTH AFRICA (2 ESSAYS PROVIDED)
Ukuthwala is a customary practice in South Africa that is related to marriage negotiations
and the crime of kidnapping and abduction, as well as possible rape and sexual assault. It is
traditionally understood as a process where a man and his family initiate marriage
negotiations by symbolically taking a woman to his home. In its original and accepted form,
this practice was not meant to involve violence or coercion, but rather formed part of cultural
processes that led to lobola negotiations and eventual marriage.1
However, over time, the practice has been misused. In some cases, young girls are taken
without their consent and forced into marriage. This distortion has raised serious legal and
human rights concerns. South African law recognises customary practices, but only to the
extent that they are consistent with the Constitution.1
Terms of use
By making use of this document you agree to:
Use this document as a guide for learning, comparison and reference purpose,
Terms of use
Not to duplicate, reproduce and/or misrepresent the contents of this document as your own work,
By making use of this document you agree to:
Use this document
Fully accept the consequences
solely as a guide forshould you plagiarise
learning, reference,or and
misuse this document.
comparison purposes,
Ensure originality of your own work, and fully accept the consequences should you plagiarise or misuse this document.
Comply with all relevant standards, guidelines, regulations, and legislation governing academic and written work.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is" without any express or
implied representations or warranties. The author accepts no responsibility or liability for any actions taken based on the
information contained within this document. This document is intended solely for comparison, research, and reference purposes.
Reproduction, resale, or transmission of any part of this document, in any form or by any means, is strictly prohibited.
, +27 81 278 3372
UKUTHWALA AND THE LAW IN SOUTH AFRICA (2 ESSAYS PROVIDED)
Ukuthwala is a customary practice in South Africa that is related to marriage
negotiations and the crime of kidnapping and abduction, as well as possible rape
and sexual assault. It is traditionally understood as a process where a man and his
family initiate marriage negotiations by symbolically taking a woman to his home. In
its original and accepted form, this practice was not meant to involve violence or
coercion, but rather formed part of cultural processes that led to lobola negotiations
and eventual marriage.1
However, over time, the practice has been misused. In some cases, young girls are
taken without their consent and forced into marriage. This distortion has raised
serious legal and human rights concerns. South African law recognises customary
practices, but only to the extent that they are consistent with the Constitution.2
Arguments against criminalisation
Some people argue that ukuthwala should not be criminalised because it is part of
African customary law, which is recognised by the Constitution. Section 211 of the
Constitution recognises customary law, provided it is consistent with the
Constitution.3 From this perspective, criminalising ukuthwala completely would
ignore cultural identity and traditions that have been practised for generations.
It is also argued that when ukuthwala is practised properly, it does not involve force
or abuse. Instead, it is seen as a symbolic act that forms part of marriage
negotiations between families. In such cases, the woman’s consent is present, and
the process is respectful and controlled.4 Supporters of this view believe that the
problem is not the custom itself, but the misuse of the custom by individuals who act
outside its original purpose.
Arguments for criminalisation
1
L Mwambene and RH Mqidlana, ‘Should South Africa Criminalise Ukuthwala Leading to Forced
Marriages and Child Marriages?’ (2021) Potchefstroom Electronic Law Journal s 5.
2
Constitution of the Republic of South Africa, 1996 s 2.
3
Constitution of the Republic of South Africa, 1996 s 211.
4
Mwambene and Mqidlana (n 1) sec 5.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is"
without any express or implied representations or warranties. The author accepts no responsibility or
liability for any actions taken based on the information contained within this document. This document is
intended solely for comparison, research, and reference purposes. Reproduction, resale, or transmission
of any part of this document, in any form or by any means, is strictly prohibited.
