Current debates over ukuthwala invoke the idea of custom to both criticise and justify the practice. Participants on both sides of this debate use historical claims to justify their position. The legal status of custom is not determined by history, but for many observers the popular legitimacy of custom depends on a practice’s deep historical roots. What is, then, the history of ukuthwala in the Eastern Cape? Do current forms of the practice have a historical claim to legitimacy, or are they perversions of a more benign practice?
The historical record shows that something like ukuthwala has been practised in the Eastern Cape for well over a century. Disputes over “irregular forms” of marriage that took place without the consent of a woman’s parents appear in the earliest colonial court records, beginning in the 1860s. The term ukuthwala itself began to appear in public discussions of marriage during the 1880s. People used the word to refer to a variety of irregular forms of marriage that took place without the consent of a woman, or of her father, or both.
As an alternative route to marriage, the term encompassed both consensual and forced marriages. In some instances, women were active and willing participants; as one woman told the local magistrate, “he is my man, I term him my husband. I went away with him. I never received my father’s consent. I went with him of my own free will.” In 1891, a Nqamakwe headman explained that ukuthwala cases were frequent and the woman “is generally a consenting party.” In such cases, couples used ukuthwala to persuade a woman’s family to accept their marriage.
The term was also, however, applied to 19th century cases in which women were abducted against their will. In one, a father told the court that his daughter “was forced against her will to go to” the man who had taken her away, and that “the messengers did not ask my consent to let them have the girl.” In another case, a young woman’s family colluded with the man who abducted her, after she ran away from her home several times to avoid the marriage. In these cases, men used ukuthwala to force women into marriage, and fathers used it to reassert their will over daughters who were trying to avoid unwanted unions. The historical record does not support the claim that such abductions are distortions of the “true custom” of ukuthwala.
If violent forms of ukuthwala have a long lineage, however, it is also true that the customary status of the practice has been debated since the 19th century. While men accused of abduction sought to defend themselves by referencing the “custom of ukuthwala,” one father retorted that “I call it stealing a man’s child.” The defendant in an 1889 Nqamakwe civil case admitted to the court that, “I know it is wrong to twala a girl. [Although] it is a crime among us in Tembuland to twala a girl it is commonly done.” William Sigenu captured the ambiguous status of ukuthwala when he described the practice to an 1883 government as a “modern custom.” Since the term “custom” (isiko, in Xhosa) usually implied historical continuity, calling ukuthwala a “modern custom” underlined the practice’s contested legitimacy.
In the 19th century, Xhosa men and women agreed that ukuthwala happened frequently (and not always with a woman’s consent), but did not agree over whether it should be accepted as a custom. More than anything, it was the recognition of customary law by the colonial state that elevated ukuthwala to the status of a recognised custom. In the eyes of the state, ukuthwala either qualified as “custom” or did not, and its frequency in practice made its recognition as custom the path of lesser resistance for colonial magistrates. This elevation of practice to custom provides one way to understand the description of ukuthwala as a “modern custom.”
For participants in contemporary debates about ukuthwala, then, history provides an uncertain guide. The historical practice of ukuthwala was not limited to benign mock abductions, but nor were men free to abduct women without consequence. Most importantly, the question of whether ukuthwala is really a custom—and, if so, what practices are properly included in this custom—goes back as far as the practice of ukuthwala itself. From the historian’s perspective, debating ukuthwala is perhaps the most authentic custom of all. And, like all custom, these debates have evolved over time. It is only right that in the 21st century, the debates over ukuthwala should invoke not only past practice but also the rights and values expressed by the Constitution.