Gender equality and the South African customary law : issues of ukuthwala and its links to child marriage

LL.M.Abstract: This essay analyses the provisions of the Constitution of South Africa on gender equality, the issues of child marriage in South Africa, the conflict between the right to equality and the African customary law, and South Africa’s international and regional obligations in relation to the rights of girls. Some African customary laws are patriarchal in nature thereby violating the right to equality of girls such as in the case of child marriage. In South Africa, child marriage is facilitated through the customary practice of ukuthwala and the legislation regulating customary marriage allows a marriage to take place between girls younger than eighteen, thus enabling the practice of child marriage and violating international and regional obligations. In this essay I argue that the African customary practices that discriminate against girls on the basis of gender needs to be developed in line with the demands of the Constitution and this essay provides recommendations on how to do so