DEFINITION OF CUSTOM WILL DETERMINE VALIDITY OF ‘ukuthwala’ ‘Custom is not timeless but – like all other forms of law – has evolved in response to social changes, and communities should not be forced to return to outdated practices that no longer suit their circumstances.’ So says By Dr Elizabeth Thornberry, a post-doctoral fellow at the Centre for Law and Society at UCT, in an analysis on the Custom Contested website – in response to a number of ‘ukuthwala’ cases in which young girls have been abducted and forcibly married to much older men. She says ‘living’ custom has been shaped by the official versions enforced over the past century and a half and that for many, the moral authority of living custom rests on its claim to a strong continuity with historical practice. She adds the co-existence of different ideas of custom ‘creates ambiguity in debates over ukuthwala and other supposedly customary practices’; that the recognition of a ‘custom’ by the apartheid state is no reason to continue to enforce that custom; and that the fact that a custom was practised a century or more ago does not mean that it should be recognised now. Thornberry says the status of ukuthwala as a valid custom depends on what definition of custom is being used. ‘Ukuthwala seems to qualify as living custom, at least in the sense of being an acceptable practice within some local communities. The forms of ukuthwala that were recognised in codified customary law, on the other hand, generally required young women’s consent to the marriage. Historically, the record shows that the practice of ukuthwala (including cases of violent abductions) extends at least a century into the past – but so do objections to the practice.’ She notes we need to question the weight given to definitions of what counts as custom, and what should be acceptable in a democratic SA.
Posted on: Wed, 24 Jul 2013 23:33:04 +0000
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