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.

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