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Ukuthwala: structured for relevance

Citation

Oosthuizen, T and Ngema, NM, Ukuthwala: structured for relevance, Speculum Juris, 2 pp. 84-102. ISSN 0584-8652 (2010) [Refereed Article]

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Abstract

This article describes the custom of ukuthwala as a form of customary marriage in historical perspective. This is a practice in terms of which a young male would forcibly take a girl to his home with the ultimate aim of marrying her. Ukuthwala may occur in three forms: firstly where the girl consents to the actions of the male, secondly where an agreement is struck between the families of the girl and the boy and thirdly, where neither the girl nor her family has any knowledge of the intended taking. The article discusses each of these instances in turn. Ukuthwala has been likened to the common law crimes of abduction, kidnapping, assault and rape. The authors consider the presumed conflict between the custom and the common law by analysing the way in which courts have interpreted the custom. Thereafter they consider whether the practice conflicts with provisions of the Bill of Rights. They are of the opinion that the practice is not wholly unconstitutional and that there are portions which can be kept and developed. The last section of the article highlights the duty imposed upon courts to develop customary law in line with the constitution and considers possible ways in which ukuthwala could be developed.

Item Details

Item Type:Refereed Article
Keywords:customary law, Ukuthwala,
Research Division:Law and Legal Studies
Research Group:Law in context
Research Field:Law and society and socio-legal research
Objective Division:Law, Politics and Community Services
Objective Group:Justice and the law
Objective Field:Civil justice
UTAS Author:Oosthuizen, T (Mrs Tersia Oosthuizen)
ID Code:150127
Year Published:2010
Deposited By:Office of the School of Social Sciences
Deposited On:2022-05-26
Last Modified:2022-05-30
Downloads:0

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