48 performed, the parties thereto must either be above the age of eighteen or have acquired parental consent (who may also ratify the arrangement ex post facto). Nhlapo claimed that this comported with the position at customary law that if the ukuthwala did not lead to the commencement of marriage negotiations, absent the consent of the woman’s parents, then damages for the unsuccessful attempt would become payable. It should be noted though that during the course of oral argument the amici raised what appeared to be a measure of uncertainty about the minimum age, inasmuch as there was a lack of clarity with regard to whether a child below the age of sixteen years old but above twelve could lawfully be handed into marriage by her parents.16 Needless to say, these concerns should be addressed in the pending law reform process. Pending such process the provisions of the RCMA and the Marriage Act No 25 of 1961 remain prescriptive. Evaluation [85] It is in the context of the evidence with regard to the content of ukuthwala as it is traditionally practiced and the practice in its “aberrant” form that the defences raised by the appellant on appeal must be considered. It appeared that the appellant conceived of ukuthwala as a form of marriage contrary to the opinions of the experts and the amici (that it is no more than a portal that commenced the process of marriage negotiations). In his evidence at the trial the appellant claimed that he had specifically travelled to the Eastern Cape to 16 Nhlapo’s affidavit p 10 para 19.2; Inkosi Mahlangu’s affidavit p 296 para 44.1.