In the post-apartheid South Africa, the recognition of customary law within the context of human rights application remains a stern challenge. This is evident in the constitution of South Africa which entails the universal individual rights in its Bill of rights whilst simultaneously embracing the tradition practices that violates the rights contained in the indicated Bill. Ukuthwala custom is but one of such adverse practice that could be taken as an example of such a contradiction. In particular, section 30 and 31 respectively in the South African Constitution embed respect for cultural diversity.
This paper looks at the Ukuthwala custom which is a child marriage practice that the Nguni tribe in South Africa is notorious of. It further vigorously and expressively makes it clear that this practise remains a gross violation of human rights of girls in a free South Africa. According to this practice a bride is forcefully abducted and taken to the man's home. In recent cases as reported, this has been done without the girl's parent's concern unlike before. The practice of this custom could be attributed to various reasons. For instance, the Ukuthwala would be performed in cases where the father did not approve of such envisaged relationship. At times it was meant to expedite the marriage process if the girl was found to be pregnant. The dissertation further scrutinize numerous causes of child marriage practice inter alia, gender inequality, culture and tradition and poverty. The adverse effect that child marriage has on the enjoyment of the fundamental human rights, in particular, the right to Health and Education are also outlined. In essence, women and young girls in particular, are, in an African culture, construed to be properties of their parents and not right holders (without rights) and so it is expected of them to adhere to values and norms as prescribed. South Africa has ratified numerous International Human rights conventions that condemns the violation of women and children's rights and as a consequent it is obliged to ensure that these rights are upheld, respected and protected.
Mini Dissertation (MA)--University of Pretoria, 2016.