Child marriages in South Africa – when wedlock turns to padlock
The horrible reality is that 207 children were married off in 2021, and without a unified legal framework, the number of child marriages in South Africa could be much higher than official statistics indicate.
“The numbers should be of concern for us, as a country. This number represents children in our communities and it is not just a number, these are the lives of children, our children, and our future,” said Margaret Zulu, child protection thematic programme manager at Save the Children South Africa.
Zulu was referring to recent statistics indicating that more than 200 children were married in South Africa in 2021. According to Dr Seble Worku, Stats SA director for education and child statistics, 207 children were married off in 2021 – 188 of them were brides and 19 were grooms. Of these marriages, 37 were registered as civil marriages and 19 were customary.
“The first one to get married as a child is one too many; it is against the essence of the right for a child to survive, to learn, be protected, and also to develop to reach their full potential,” said Zulu.
Understanding child marriage
Child marriage is any formal marriage or informal union where one or both parties are under 18 years of age, said Zanele Ncwane, KwaZulu-Natal provincial manager at the Commission for Gender Equality (CGE)
From a legal perspective, some inconsistencies and loopholes exist throughout the legislation allowing child marriages, she said. Under the Children’s Act 38 of 2005, the minimum legal age of marriage is 18 years for girls and boys. The Marriage Act 25 of 1961 sets different minimum ages, with girls able to be married at 15 years old and boys at 18. The act also allows for parents, guardians, a commissioner of child welfare or a judge of the Supreme Court to provide permission should one of the spouses be younger than the required number of years.
The Recognition of Customary Marriages Act 120 of 1998 further allows minors to enter into customary marriages with parental consent, without specifying a minimum age limit for boys or girls. This Act also allows parents, guardians, a commissioner of child welfare or a court to provide consent for marriage should one of the spouses be too young to provide consent. If both spouses are younger than 18 years, the Minister of Home Affairs can provide permission for the marriage to proceed.
The only South African law that sets 18 years as the minimum age of marriage for both boys and girls and does not grant any exceptions is the Civil Unions Act. Ncwane said it was important not to assign blame to a specific culture when discussing child marriages.
“We have seen marriages of minors across different cultures – Muslim marriages, Hindu, [the] same applying to Sotho, Tshwana, and Xhosa. It comes down to getting around the law that allows this, and then it also comes to guardians and parents who are eager for their girl child to be married for different reasons,” she said.
There is a possibility that the number of child marriages in the country could be higher, as not all customary marriages are officially registered, Ncwane said. According to her, Stats SA relies on different stakeholders to collect such statistics.
“Some of this information from the Department of Education when they look into dropout rates, or the Department of Social Development, but most of the stats come from the Department of Health, where we find these young women then coming in for antenatal clinic and then when they record their marital status,” she said. There are no avaliable statistics on child marriage in 2022 and 2023.
“I always look at child marriage numbers like we do when we look at gender-based violence (GBV) statistics. When we count GBV statistics, we are counting cases that have been reported either to the police stations or maybe we found those numbers through health centres. But we know many cases of GBV do not get reported in those official structures.”
It is not uncommon to hear of child marriage in a community but find no official recognition of that marriage. “From our engagements with civil society and our work in the communities, you will hear that a child is married but if you go to the traditional counsel in that area, you won’t get anything from their records that [indicate] the recognition of that marriage. So, the numbers are not really reflecting the true story,” Ncwane said.
The current statistics show that child marriages are prevalent in the Eastern Cape and KwaZulu-Natal. “The numbers are more cluttered in predominantly rural provinces, in this case, Eastern Cape and KwaZulu-Natal. Though it is unreported, there are also cases in Limpopo,” she said.
A family’s response to crisis: marry their children
Child marriages are a cause for concern as they constitute a violation of children’s human rights and are a form of GBV that robs children of childhood, said Lumka Oliphant, spokesperson for the Department of Social Development.
“This high number also means more children will have their education disrupted thus compromising their future work lives. In most cases, children are expected to get pregnant, when in fact their anatomy has not developed adequately, thus increasing the health-related risks to both the young mother and their unborn children. So, the main concerns are that these marriages drive vulnerability to violence, a stable future, discrimination, and abuse,” she said.
Child marriage has different causes in different places, but there are often commonalities linked to cultural reasons, religious purposes, poverty, and limited opportunities for girls.
“Poverty and economic factors play some role in driving child marriages – in cases where lobola needs to be paid, parents may be keen to give their young children to marriage with the hope of securing lobola funds,” Oliphant said. Because of tradition and the status accorded to being married, some rural communities still favour the practice of child marriages, she added.
“To an extent, the patriarchal society – where there are unequal power dynamics – perpetuates child marriages as there is no or uninformed consultation with the girl child,” she said.
Read more in Daily Maverick: Activists point to climate crisis and Covid-19 as critical factors pushing more young girls towards child marriage
Ncwane said that in some cases in which the CGE has been involved, grooms alleged that they were practising their cultural rights of ukuthwala. Originally, ukuthwala involved kidnapping a girl or a young woman by a man and his friends or peers to compel the girl or young woman’s family to endorse marriage negotiations.
In ancient Africa, the practice was a condoned, albeit an abnormal, path to marriage targeted at certain girls or women of marriageable age. However, it has been abused and young girls are being abducted and kidnapped in the name of ukuthwala.
Ukuthwala is illegal in South Africa, and the department advocates against its perpetuation, Oliphant said. “Ukuthwala occurs without the consent of the victim and violates the right to dignity. This practice is associated with the kidnapping, assault and rape of young girls by older men, who force them into customary marriages. So, one has reason to believe that the figure of 207 could be higher if cases of ukuthwala were included,” she said.
There are also cultural and religious beliefs about the so-called “illegitimate child”. According to this belief system, children who are born out of wedlock are considered illegitimate, and teenagers who fall pregnant may be rushed to marry to avoid “birth of an illegitimate child”, Oliphant said.
Poverty is a key driver for child marriages as dowries offer a welcome, if brief, respite for struggling families. Ncwane explained that if you had the means to take care of your daughter who was impregnated by an old man, you would be in a position to refuse the lobola that is offered.
“When we engage with the parents, they say to us ‘What was I supposed to do? Because I can’t take care of her and a grandchild as well’; so there is that element of financial dependency that leads to child marriages,” Ncwane said.
Especially in the rural areas, the belief that marriage is the end goal for young girls is still there, and also contributes to child marriages, she said.
Zulu explained that child marriage is a form of violence against children. “We hear the horror stories of what’s happening to these children in these so-called marriages, number one is the violence; number two, they would end up with unplanned pregnancies; and number three … poverty and gender inequality are drivers for child marriages,” she said. “What then happens to this girl child, is that she’s exposed to further violence, not being able to make decisions about her future, and not being able to reach her full potential as a human being.”
Putting an end to child marriages
The Draft Marriage Bill could assist in reducing child marriages, but will not lead to their eradication, Ncwane said. “In cultural practices, a marriage does not have to be a completed marriage in the sense that there is a marriage certificate. The minute the groom’s family pays dowry or lobola, already that is considered marriage.”
Parents will no longer be able to consent to their minor children getting married, should the Draft Marriage Bill be passed as it will scrap underage marriages. Section 7 of the bill states that “any person who wishes to enter into a marriage must be 18 years or older”.
It further states that for monogamous and polygamous marriages to be valid, they have to be between two people aged above 18 who both give free consent to enter into the marriage and have the legal capacity to do so.
Zulu said the Bill has the potential of addressing and curbing child marriages. “We are hoping it’s now going to be in line with the Children’s Act, but it is also the fact that we are having conversations, it’s a space for us to engage further to say, what can be done about these marriages and why is this happening,” she said.
Ensuring that relevant information reaches communities is also key to addressing the issue. “How do we ensure that this information trickles down to our communities – how does a young girl use the legal instruments to claim her rights to her parents and say no to child marriage?” Zulu asked.
“I think besides just having conversations on the Bill, we would like to see implementation and an improved child rights governance system.” The Draft Marriages Bill is open for public opinion until 31 August.
Oliphant described child marriages as “a cross-cutting issue” and fighting it required collaboration with other departments. “The department partners with other departments and social partners in advocating against harmful cultural practices with a focus on protecting our girls against child marriages and ukuthwala, as well as our boys against attending unregistered initiation schools,” she said.
The Justice Cluster departments have been encouraged to view such cases as part of trafficking in persons, statutory rape and kidnapping – to further deter those who practise such customs.
“There is also a need to raise awareness across various communities that are involved in this practice and awareness should focus on teaching about the harmful effects of child marriages,” she said.
Ncwane said the CGE’s legal department is gathering more information from relevant stakeholders and engages frequently with relevant stakeholders to address the issue.
“Different provinces have different approaches as to what is working for that province within the CGE system. In Limpopo and Mpumalanga, they have signed a memorandum of understanding with the house of traditional leaders, where it is then giving us and traditional leaders a seat at one table to discuss and engage in this discussion,” she said. Education and awareness campaigns that popularise the rights of young children are also important.
Zulu explained that Save the Children South Africa runs an economic empowerment programme, which supports young girls and boys to be able to start businesses and link them to corporate organisations and different business initiatives.
“We are here to support the child rights governance system. We know that it can be strengthened, and we know that there can be better coordination of different departments to ensure that the child rights governance system is not only well funded, but the policies are speaking to each other and there are no loopholes.”
“There is also the implementation of these policies and there is accountability, not only to ourselves but to the children that we serve because they are now holding us accountable. We cannot continue to fail our children.” DM