Draft SADC Parliamentary Forum Report on protection against child marriages: Committee Deliberations in preparation for caucus on 25 March

Women, Youth and Persons with Disabilities

24 March 2015
Chairperson: Ms R Morutoa (ANC)
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Meeting Summary

The Parliamentary Research Office presented a draft Report on the protection of children against child marriages in South Africa, which had been compiled for tabling to the SADC-Parliamentary Forum (PF) Plenary Assembly. The Plenary was trying to understand the implications of child marriages in the SADC region, to address such marriages holistically at this level. For South Africa, the main focus of the Report would be the practice of ukuthwala which, since late 2009, has been regarded as abuse. The document presented therefore focused on the concept of ukuthwala, and other legislative and constitutional provisions, as well as South Africa's obligations to protect the rights of children and women in light of its signature of various conventions internationally and in the region.

The Department of Justice and Constitutional Development (the Department) and the South African Law Reform Commission (SALRC) had conducted research and ukuthwala had been defined as a form of kidnapping of young girls or women, in order to force their families into marriage negotiations. The SALRC had identified a number of loopholes in other legislation, particularly the Recognition of Customary Marriages Act, which did not set any minimum age for marriage, but referred to consent for marriages of girls between 12 and 17, but for boys aged 14 to 17. There was concerned that recognition of customary law and traditions might be allowing for the practice of ukuthwala to be abused. The SALRC was compiling a report which would make recommendations whether there was a need for specific legislation to cover the issues, although no draft legislation had yet been formulated.

Members were not at all happy that the draft Report be publicised. They shared the view that the Report was based on the perspective of a person with no in-depth knowledge of the practices, and several commented that the definition of ukuthwala was incorrect, although there was also a comment that those from different backgrounds and ages might well see the concept differently. They felt that the Report failed to include other perspectives, as well as failing to consider what the NCOP had reported a few years ago when it conducted extensive oversight, and felt that it was disrespectful to black women. Members also commented that there was a real need for this Committee to engage with all the legislation that was keeping women unempowered, and that should be a focus for the next term. One Member commented that she thought she knew the main source of the information but that far more research and other views were required, to avoid a one-sided interpretation being regarded as authentic. The Committee felt that the SALRC should be asked to come and account to the Committee for the Discussion Paper on which this report was largely based.

Members briefly discussed the planning for the following day's meeting and discussed the minutes of a previous meeting, sending them back for clarity.

Meeting report

Draft South African Country Report to SADC Parliamentary Forum
Ms Natalie Leibrandt, Parliamentary Researcher noted that she would present an overview of the South African country reports to the SADC Parliamentary Forum (SADC-PF). This Parliament would be hosting the 37th SADC-PF plenary Assembly in July. According to practice, for each Plenary Assembly, national parliaments are expected to present country reports on a theme that is decided by the SADC-PF’s executive committee. The theme for the upcoming Plenary Assembly will be the constitutional and legislative provision enacted to protect children against child marriages.

She explained that the Forum had a Plenary Assembly, the main organ for delivery and policy. The Forum had no legislative powers, but was a forum of parliaments in the SADC set up to discuss issues of mutual concern. It also had a Standing Committee of Human Development and Special Programmes. The Regional Women's Parliamentary Forum was set up to hear issues from representatives of national Parliaments and the Women's Caucus.  is one and regional women parliamentary forum which is basically a committee where the representative of national parliaments and women’s caucus are represented to voice out issues.

This report would be presented to the Plenary Committee on Women and Social Development. The committee is trying to understand the implications of child marriages in the SADC region, to try to address such marriages holistically at this level. For South Africa, the main focus of the report would be the practice of ukuthwala which, since late 2009, has been regarded as abuse.

She noted that the Department of Justice and Constitutional Development defined ukuthwala as a form of abduction that involves the kidnapping of a girl or young woman, to force her families into a marriage negotiation. No marriage was actually concluded under the traditional practice; it was used as leverage. However, what had been happening recently was that very young girls were being abducted and forced into marrying much older men. This had been recorded in the Eastern Cape and KwaZulu Natal (KZN) and reports had been verified by the Gender Directorate of the Department of Justice and Constitutional Development (DOJ&CD) as well as the South African Law Reform Commission (SALRC). However, lack of fully accurate data made it difficult to record exactly how widespread it was. This form of abuse generally happened when men working in he cities returned home during holiday periods. Rationales for using ukuthwala included poverty, it being bandied as a cure for HIV and to "cure" gender stereotypes. It was necessary to judge the impact against the aims of goals of human development, gender equality, poverty and development in the general community.

She noted that from page 4, this Report specifically looked at South Africa's international obligations around the protection and prevention of child marriages, and all the international conventions and regional and African institutions that it was party to, but also at national legislation relevant to the topic. The South African Law Reform Commission (SALRC), in its reports, had highlighted various loopholes in the legislation that allowed for ukuthwala to be abused. Amongst others, the Recognition of Customary Marriages Act, although it provided for consent to marriage at age 18, did not refer to the minimum age for marriage. In terms of the common law, consent for girls related to those aged 12 to 17, but for boys, 14 to 17. Another loophole in that was the section dealing with social, cultural and religious practices. Although the Act specifically mentioned male circumcision, and virginity testing and female genital mutilation, it did not speak of ukuthwala.

The Report recognised that although South Africa did prioritise the well being of children throughout its National Development Plan, there was a challenge because various pieces of legislation did not always speak to each other, and were often contradictory. The Department of Social Development, as the lead department for child protection, with the Departments of Health, Basic Education, and Justice also provided services to children and families but there had been challenges with the coordination of these different activities.

She noted that the SALRC had conducted various provincial workshops and consultations on the topic. Presently, it was busy collecting all the relevant information in order to determine if there was a need to prepare the Report for the Ministry of Justice. If the DOJ&CD were to find that there was need to legislate on ukuthwala specifically, it would submit legislation to Parliament. The SALRC had recommended new legislation to deal with ukuthwala and how it was being abused. Any new legislation might also be able to consolidate all the different child protection legislation into one instrument. So far, from Parliament's point of view, it had made reports to the SADC Parliamentary Forum. There was information gathered from discussions in NA and NCOP committees during meetings, but none had specifically suggested legislation. She suggested that it would be useful to wait for the outcome of the SALRC engagement with the DOJ&CD.

She added that this was a draft Report, due to be submitted on the following day. More engagement from the delegations and members of the SADC-PF executive was awaited. She asked that any comments from Members be submitted to her as well.


Ms M Chueu (ANC) asked who wrote the report and from which references was the information sourced.

Ms Leibrandt responded that she did, and her sources were the DOJ&CD, and the SALRC discussion paper of the last year, on gender directives, that it was using to investigate whether draft legislation on ukuthwala was warranted.

Ms Chueu noted that the definition of ukuthwala, and the Report presented, had not correctly portrayed the woman's perspective. She quoted part of paragraph 3 on page 1, and said that this misconstrued the African culture. She pointed out that when conclusions are drawn from something that was incorrect to begin with, the solution would also be incorrect. She was saddened that when people were writing for academic purposes, they may not truly understand the culture. There were various gender stereotypes expressed in the Report that really oppressed women, and although she had not read the whole Report in depth, there was much that was negative. It was a sad point that even the people who were responsible for presenting to the SADC had limited understanding of the subject and apparently no passion of keeping women out of their oppression. 

She questioned whether the customary marriages legislation was still in force or had been repealed, noting that the Act that came into force in 1961 and at that stage women were not allowed to go to school, and if this legislation had not been repealed it implied that all privileges from which women were deprived at that time were possibly still embedded in the Act. She also had a serious problem with the assertion that girls could be married at a younger age than boys, pointing out that a child is a child, and she would regard it as a real problem bordering on paedophilia should a teenager be married to a much older man, old enough to be her father, and the man should recognise that essentially he is marrying a child. Even if a girl was over 18, the large age gap could still mean that she was subservient to the older partner, and he would still be acting, in her view, similar to a paedophile, and it was even more of a problem that he was probably not regarded as such, quite possibly because he had money, or was lonely, but the point was that the girl probably had not made the decision on her own. Nobody could know whether a girl was being forced into a relationship, because discussions would happen behind closed doors.  She wondered why women in general were still allowing things that were restricting women from rising out of oppression. Why was South Africa still allowing the Recognition of Customary Marriages Act to stand with the recognition that a girl as young as 12 could be married? and especially when a boy would only marry at an older age. She insisted that the country could not continue in this way. This Committee must review these policies, and any Acts with any connotation of oppression. Here she cited principles such as women not being able to dispose of property without the consent of her husband, which was equally oppressive. Academics who were making the law should also be helping women to escape oppression and must fully understand all the laws of the country, and align them to affect also the way in which people live their lives.

Ms B Dlulane (ANC) also wanted to express her dissatisfaction, pointing out that these theories affected the lives of black women, and inflicted more pain on them, and could not be allowed to continue. She wanted to correct the earlier statements, and said that the draft Report could not be allowed to go forward with incorrect information. When she had been Deputy Chairperson of the NCOP, which House had gone on oversight to the Eastern Cape, visiting an area under the leadership of an ikumkani. Traditional leaders, church representatives and community members had attended. There had been 12 girls who managed to run away from the households, and were taken to a safe-house. One of the girls, of 14 years old, who had been abducted by a 45 year old man, ended up having to have a hysterectomy. Their parents, the perpetrators of ukuthwala and the go-betweens were all charged and she believed had been imprisoned. The Stakeholders Forum continued to exist and there was a report to the NCOP. There was nothing in this Report however on that matter. She was insistent that wrong information had been conveyed in this current Report.

Ms S Nkomo (ANC) agreed that the information contained in the current Report would be "stirring up a hornet's nest". She pointed out that Members here were becoming upset by the information, but did not even have information on where the statements had been captured. She knew the presenter, but also recognised that some of the research seemed to have emanated from a researcher in KwaZulu Natal, who had fed her research through the Commission for Gender Equality. There were some good points in the report, which could be debated and discussed, but other information was missing. There was also the point that different recommendations had come from different committees of Parliament. She believed that additional information should have been sourced to compile the Report, and possibly a central source for reporting should be found. She thought, for instance, reports from the NCOP's visit mentioned earlier would be important. If the Report was delivered in its current format, with the critical missing links, it would be assumed to be an authentic portrayal of ukuthwala. She noted the short time frames, and said she thought it was important for this Committee to seriously recommend how the process should unfold, who needed to be present, and with whom there should be engagement to get the document right.

Ms N Khunou (ANC) asked who one of the people in the meeting was.

Ms Natasha Paulsen introduced herself, at the request of the Chairperson, explaining that she was representing the Griqua Rural and other constituencies in Western Cape. She was sitting in on proceedings of various committees to find out what was going on, to be able to then report back to communities on who Parliamentary representatives were and what they were doing for communities.

The Chairperson asked if she had come with someone else.

Ms Paulsen explained that she was part of a group in Parliament, for the whole session, until 2 April.

The Chairperson, said that, from the point of view of protocol, somebody should have brought Ms Paulsen. She said that "this is a Committee in Parliament and it is not attended by people (from) outside". If Ms Paulsen wanted to know the proceedings of Parliament there was another way to find that out.

Ms Paulsen said that she had been understood that her group was invited by Parliament to all the sittings.

The Chairperson commented that nobody had approached this Committee. This was a closed meeting. From a protocol point of view, anyone else to be attending should have contacted the Chairperson, as this was essentially a meeting making preparations, and was not a public and open hearing. She suggested that Ms Paulsen inform the right people and request permission to attend the meeting on the following day.

Ms Khunou agreed with comments of other Members. If this Report was presented to the SADCPF, it was suggesting that South Africa was not doing anything, implied that it was not a caring society, and that it was oppressing women. She thought that the research had to be broadened. Much had been done by this government since 1994, as far as women and children were concerned. She recalled having attended a summit on termination of pregnancy, where it was agreed that "child" would be one under 21 years old, and prior to that the child was not able to consent - meaning that this person would be regarded as an adult only after 21. She was not sure when that notion had changed, and why this did not form part of the document. She felt that the problem was that the country was trying to follow a Western path, and losing its own ways and being unable to track what it was doing.  She felt that more people with sound knowledge had to be engaged on the definition of ukuthwala. She agreed that this Report should not be presented and far more input was needed. She wondered who had given this topic to this Committee in the first place, and why it was only being told now that the deadline was the following day. She felt that a full report had to be prepared that all South Africans must agree on as the country report. This Parliament was "not NGOs who go in there to lie about South Africans, we cannot do that". She agreed with the views of other Members. She believed that this Committee had a duty now to check all the policies, and needed to correct them. The Department of Women in the Presidency must ensure that the legislation was repealed or revised, because women were still being oppressed. She was not intending to attack the presenter, but was insistent that the Report needed further work, and Members here would be able to go and look at some of the literature mentioned. She suggested that this should be the priority of this Committee for the forthcoming term.

Ms Tumi Morogwe, Parliamentary Researcher, pointed out that the Report was supposed to focus on legislation and that was perhaps the reason why so much of what Parliament had done by way of public hearings and oversight was not mentioned in the Report.

The Chairperson suggested that Ms Morogwe was out of order. She said that the reason she had asked for these Reports to be brought to the steering committee was because this steering committee was leading the Multi-Party. Other people would be commenting in a broader meeting on the following day. She also had a concern about this matter coming back; the issues were raised when dealing with the Millennium Development Goals (MDGs) and it had helped South Africa when preparing the report for the Convention on the Status of Women in New York, two years previously. She wondered if the report on ukuthwala that was used for the MDG meetings was available. She felt, with no disrespect to the presenter personally, that the Department of International Relations and Cooperation was taking this Committee for granted; Members remembered what they had done in the past. This Report was not acceptable, left out a lot of information and misinterpreted ukuthwala - something that she was well aware of personally, because of her age, although she pointed out that her Xhosa secretary understood it differently. People had been through ukuthwala in different ways, but Parliament was not happy about presenting this Report.

Ms Leibrandt confirmed that the Report was based on the findings of the SALRC, as published in a Discussion Paper in the previous year. Up to January 2015, the SALRC had been holding provincial consultations. The SALRC fell under the DOJ&CD and its reports were considered to be a government publication.

The Chairperson said that the Committee would be calling in the SALRC to account.

Ms Leibrandt explained further that because she had used a government publication as her main source, which was the most recent publication, she had assumed that it would be reliable. She was grateful for the comments of the Committee, which were pointing out inaccuracies in the definition. She asked that the Committee help her to compile a proper definition, because was now placed in a difficult situation; what was said in the literature and what the Committee Members were saying was contradictory.  She also added that the Report was focusing on the legislative and constitutional provisions, and she could do nothing to change laws already in place, but could only provide an overview.

Ms N Majeke (IFP) agreed with the recommendation to call in the SALRC. The presenter had noted that she had merely extracted information from a government public report, but if this was to be a comprehensive report, it had to encompass every detail and deal with what South African women were talking about.

Ms Nkomo wanted to outline the powers and duties of the Committee. It had the right to call anybody to come and account to it. The Committee would be looking at other legislation. Since it was clear that the Report was drawn on the basis of the SALRC documentation only, the Committee wanted to look at broader sources, including other reports mentioned earlier. All the relevant information must be given. She had mentioned a researcher in KwaZulu Natal and suspected that the SALRC's information had come from her. This Committee could not compromise on its role, knew that it must oversee diligently, and whoever the information came from, that body should be called in (even subpoenaed). She thought that the proper definition of ukuthwala could be obtained from all the documents and suggested that "we will not be defining ukuthwala for you". Whilst she appreciated the preliminary work done, it had to be taken further for the Committee would not give its support to the current draft Report being released.

Ms Dlulane questioned whether any research was obtained from the NCOP.

Ms Leibrandt confirmed that she had received information from an NCOP researcher, Tasneem Matthews, and that information had also informed the draft Report.

Ms Dlulane thought that further information could be given by the Committee, if the Chairperson was agreeable, because it seemed that the scope of the research was not broad enough. The Committee was not hiding anything and was quoting facts.

The Chairperson suggested that the information given today by Members should be noted, and their concerns highlighted when the presenter reported back.

Minutes of previous Committee meeting
The Committee discussed the minutes of the previous meeting, but raised problems and issues with the construction of the paragraphs and the information. Members highlighted paragraph 3, and said it was unclear whether the topics were discussed or agreed upon.

Members decided that in future the minutes must clearly record the details and decisions.

Other business: Planning
The Committee broadly discussed the planning for the following day's meeting, and agreed to raise the following issues;
- Hosting of Women's Parliament
- Programming and time allocation
- Budget
- Allocations to other committees
- Infrastructure, training and capacity building
- Summary on Beijing Report to be delivered by Committee Researcher

The meeting was adjourned.

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