Page |1
TOPIC A CRITICAL LEGAL PERSPECTICE ON UKUTHWALA AS A GENDER-
BASED VIOLENT CRIME IN SOUTH AFRICA
, Page |2
ABSTRACT
This research paper critically examines the practice of ukuthwala in South Africa,
highlighting its implications as a gender-based violent crime. The study explores the
intersection of customary law and constitutional rights, particularly focusing on the
issues of consent, gender equality, and protection from violence. By analyzing recent
court cases such as S v Jezile (2015), S v Osabiya (2021), and Mbhamali v S
(2022), the paper evaluates how the judiciary has addressed the cultural defense of
ukuthwala and its alignment with the constitutional mandate to protect human rights.
The findings reveal that the incorrect application of ukuthwala reinforces gender
inequality and constitutes crimes like rape, kidnapping, and child trafficking, violating
multiple constitutional rights. The study underscores the importance of reevaluating
criminal law defenses in light of South Africa's constitutional values and calls for
greater judicial scrutiny of cultural practices that infringe upon individual rights.
These findings are crucial for advancing the legal discourse on gender-based
violence and ensuring that cultural practices do not undermine the rights and dignity
of women and children in South Africa.
TOPIC A CRITICAL LEGAL PERSPECTICE ON UKUTHWALA AS A GENDER-
BASED VIOLENT CRIME IN SOUTH AFRICA
, Page |2
ABSTRACT
This research paper critically examines the practice of ukuthwala in South Africa,
highlighting its implications as a gender-based violent crime. The study explores the
intersection of customary law and constitutional rights, particularly focusing on the
issues of consent, gender equality, and protection from violence. By analyzing recent
court cases such as S v Jezile (2015), S v Osabiya (2021), and Mbhamali v S
(2022), the paper evaluates how the judiciary has addressed the cultural defense of
ukuthwala and its alignment with the constitutional mandate to protect human rights.
The findings reveal that the incorrect application of ukuthwala reinforces gender
inequality and constitutes crimes like rape, kidnapping, and child trafficking, violating
multiple constitutional rights. The study underscores the importance of reevaluating
criminal law defenses in light of South Africa's constitutional values and calls for
greater judicial scrutiny of cultural practices that infringe upon individual rights.
These findings are crucial for advancing the legal discourse on gender-based
violence and ensuring that cultural practices do not undermine the rights and dignity
of women and children in South Africa.
