Child Marriage in South Africa
by Dieter Lubbe
In this article, we are going to take an introductory look at child marriage in South Africa. The idea is to orientate ourselves with a few key ideas regarding the law and the number of children involved. We will also show that consent is not an isolated action that is independent of the larger context(and its complexities).
The South African Context of the Debate
By way of background information, Section 28(3) of the South African Constitution defines a child as a person under the age of 18 years. Most of the provisions in the South African (SA) sexual offences law keep within this definition of ‘child’. It is important to note, however, that in the case of statutory rape or statutory sexual assault, the crime can only be perpetrated against a child 12 years and older and younger than 16 years of age. Furthermore, the minimum legal age for marriage is 18 years for boys and 15 years for girls in SA. Subsection 12(2) of the Children’s Act protects children from being forced into marriage, ‘A child …. may not be given out in marriage or engagement without his or her consent.’ The SA Constitution recognises ‘marriage’ observances concluded under any system – as long as those observances follow rules made by the appropriate public authorities. The Minister of Home Affairs can grant an exception to the ‘15 years old’ minimum age for girls with a written permission. The Minister may also ‘authorise any officer in the public service to give written permission on his behalf’ to permit the marriage of a girl as young as 12 years old (See Ilizna Esterhuyse’s helpful summary here). The consent of child and parents or guardian is critical to this process. In cases of human trafficking (forced marriage), the Prevention and Combating of Trafficking in Persons Act 7 of 2013 points out that, consent of the child is a necessary prerequisite that makes a child marriage legal. Section 36 of the Bill of Rights points out that the rights, referred to in the Bill of Rights, may be limited only in terms of the law of general application to the extent that such limitations are ‘…reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom…’ The rights of children are restricted in this sense when it comes, for example, to alcohol, driving a car and marriage. In simplistic terms, Section 36 is justified because of the ‘relevant immaturity’ of a child. It is also an effort to support and assist what is necessary for the positive growth and development of children.
Prof Deirdre Byrne noted some time ago that, ‘Although the South African stats are lower compared to the rest of Africa, which represents 125 million of the 700 million world-wide child-brides (or 17 percent), the fact that child brides are a reality in South Africa, a country with one of the world’s best constitutions, is frightening.’ Indeed, it was Prof Deirdre Byrne that highlighted The Community Survey 2016 results released by Statistics SA, that ‘…more than 91000 girls in South Africa between the ages of 12 and 17 are married, divorced, separated, widowed, or living with a partner as husband and wife, with the latter forming the majority of the group’. This alleged ‘majority’ of children ‘living with a person as if married’ seems to me to be highly problematic. The room for abuse, human trafficking or even statutory rape is something that cannot be resolved with mere anecdotal assurances from parliament like, for example, that customary procedures have been followed.
Non-Harmful Cultural Practice
With this said, in the insightful article, Contextualizing the practice of Ukuthwala within South Africa By Marcel van der Watt and Michelle Ovens, a distinction is made between the ‘Ukuthwala’ in its traditional form and the harmful and somewhat distorted practice currently taking place in South African society.’ ‘Ukuthwala’, for those new to this subject, is the cultural practice of Xhosa marriage custom. It involves the ‘pretend abduction’ of the bride-to-be (12 years old in some cases) as part of the negotiation between the two families. What Van der Watt and Ovens explore, is the different expressions or practices of Ukuthwala with respect to the compatibility of such customs with the SA constitutional provision for customary law Section 29(3) of the Bill of Rights. Van der Watt and Ovens charitably imagine a practice of Ukuthwala that could possibly be constitutional, in contrast to what is actually the case in South Africa, more often than not. Van der Watt and Ovens suggest that the ‘non-harmful’ cultural practice cannot be outlawed on grounds of the SA constitution. The criteria for this, ‘ non-harmful’ relationship, as they imagine it, is based on considerations of the role players’ consent and willingness. It seems at least cogent to argue, as Van der Watt and Ovens do, that adults may be given such concessions in law, if such a thing as a “non-harmful” cultural practice exists. Yet, when it comes to children under 18, the growing consensus is that it should be illegal.
Consent and willingness, as it applies to the child, is not always straightforward. Still, what Van der Watt and Ovens call ‘a distorted practice’ certainly applies to cases where the child did not give consent. For example, the Court held in Nvumeleni Jezile v. The State, the Appellant could not rely on the traditional practice of Ukuthwala to justify his criminal conduct and was duly found guilty of human trafficking.
‘Private’ Acts and Consent
With the challenge of poverty in mind, I cannot help but think at this point of SA Criminal Law Section 17, which leaves no doubt that any child involved in ‘transactional sex’ is being sexually exploited, irrespective of consent. It is therefore not a private matter between consenting persons. In S v Jordan and Others, the minority judgment found that there are a range of factors relevant to distinguishing the core of privacy from its penumbra: ‘One of the considerations is the nature of the relationship concerned: an invasion of the relationship between partners, or parent and child, or other intimate, meaningful and intensely personal relationships will be a strong indication of a violation close to the core of privacy.’ Following this reasoning, the commercial nature of prostitution removed it from the inner sanctum of privacy. Furthermore, in the Teddy Bear Clinic for Abused Children and Another v Minister of Justice judgement, the court took note of the ‘age gap’ between the participants in sexual conduct, precisely because of the potential for undue influence of the older person over the younger child. Yet, in the case of child marriages, the power imbalance between adults and children rests on a government official’s judgment of what is legal ‘culture’ in terms of the marriage act. The potential for children being unduly influenced seems to be very relevant in the case of child brides, given both the age of the child and the quasi-commercial nature of the proceedings. Even if this sense of the quasi-commercial nature could be overlooked somehow, in Section 15 of the Sexual Offences Act we see that ‘a person who commits an act of sexual penetration with a child who is 12 years of age or older but under the age of 16 years is, despite the consent to the commission of such an act, is guilty of the offense of having committed an act of nonconsensual sexual penetration with a child.’ It is then difficult to see how a child’s consent is sufficient in child marriage law.
The Demand for Child Prostitution
The demand for child prostitution (transactional sex), which is known as the ‘new’ sugar daddy or so-called ‘blessers’ behavior, is hard to overlook. Again, for those new to the subject, in SA ‘blessers’ buy sex from children via gifts etc. The economic vulnerability of girls cannot, we believe, be used as justification for preserving the status quo in cases of transactional sex or child brides. The same drivers that lead young women towards having sexual relationships – many of which are transactional in nature – with men much older than they are, is an abuse of human dignity The body of the child is ultimately being used for merely instrumental purposes. It is also of great concern that this trend in transactional sex exposes girls to a multitude of health issues. Also, it exposes their vulnerability to being coerced into accepting the dangerous social narrative that sexual abuse is legitimate work (blessing).
The Families Consent
Cultural adaptation and urbanisation are likewise challenges to consider in the light of globalization. The idea, that all communities in question are ‘positive agents’ in such negotiations, seems problematic. Furthermore, one might for example think of how many children have lost both parents and hence may be very vulnerable. A Situation Analysis of Children in South Africa April 2009 estimated, ‘…a total number of children with one or both dead parents in 2006 was almost 3.8 million, or 21% of the child population. While the majority are, in all likelihood, receiving the support of a surviving parent, grandparent or other family member, the impact on families and communities that care for such a huge number of orphans should not be underestimated’. The best interest of the child cannot be decided and based on the mere cost benefit to these families.
In conclusion, we would do well to note that The African Charter on the Rights and Welfare of the Child echoes this sentiment in, Article 21: ‘Governments should do what they can to stop harmful social and cultural practices, such as child marriage, that affect the welfare and dignity of children’. In the Context of Africa, UNICEF found in a study in 2015, ‘…that more than one in three of these African women and girls (over 40 million) entered into marriage or union before age 15. If current trends continue, almost half of the world’s child brides in 2050 will be African.’ We believe that SA, as a gateway nation to Africa, should take the lead in putting our children first by criminalising this behaviour.