The South African legal system is dualistic in nature with the one part
consisting of the Western common law and the other consisting of African
customary law. Although these two legal systems enjoy equal recognition,
they regularly come into conflict with each other due to their divergent value
systems. It is especially within the context of the South African criminal law
that this conflict becomes apparent, because an accused's conduct can be
viewed as lawful in terms of African customary law, but unlawful in terms of
the South African common law. In such cases the accused may attempt to
raise a cultural defence by putting forth evidence of his cultural background
or values to convince the court that his prima facie unlawful conduct is
actually lawful and that he should escape criminal liability. Alternatively, an
accused may put forth evidence of his cultural background or values in an
attempt to receive a lighter sentence. The question which therefore arises is
whether a so-called "cultural defence" exists in the South African criminal
law, and if so, what the influence of such a defence on the South African
criminal law is.
The conflict between African Customary law and the South African common
law in the context of the criminal law arises due to the fact that the indigenous
belief in witchcraft, (including witch-killings), the indigenous belief in the
tokoloshe and the use of muti-medicine (including muti-murders), as well as
the phenomenon of "necklacing" and the custom of ukuthwala can result in
the commission of various common law crimes. In the case of witch-killings,
the perpetrators can be charged with the common law crimes of murder or,
if the victim survives, attempted murder, common assault or assault with
intent to do grievous bodily harm. Similarly, necklacing, as a method used
for killing witches, can also result in the commission of these common law
crimes. What is more, the perpetrators of witch-killings can also be charged
with the statutory crimes of accusing someone of witchcraft, pointing the
victim out as being a witch or wizard or injuring a person based on
information received from a traditional healer, or similar person. The indigenous belief in the tokoloshe can lead to the commission of the
common law crimes of murder or, if the victim survives, common assault or
assault with intent to do grievous bodily harm. The perpetrators of mutimurders
can also face charges of murder or attempted murder, if the victim
survives. The indigenous custom of ukuthwala can result in the commission
of common law crimes such as abduction, kidnapping and common assault,
as well as the statutory crime of rape.
A perusal of South African case law dealing with the indigenous beliefs and
customs above reveals that the accused in such cases have indeed
attempted to put forth evidence of their indigenous beliefs or customs to
persuade the criminal courts that they should escape criminal liability for a
particular crime. In fact, these arguments were raised within the context of
the existing common law defences such as private defence, necessity,
involuntary conduct and a lack of criminal capacity. However, the South
African criminal courts have up till now in general been unwilling to accept
arguments of indigenous beliefs and customs to serve as a defence, either
alone or within the context of the existing defences above, for the
commission of a common law or statutory crime.
They have, however, been more willing to accept evidence of an accused's
indigenous belief or custom to serve as a mitigating factor during sentencing.
The extent to which an accused's cultural background will serve as a
mitigating factor will, of course, depend on the facts and circumstances of
each case. As a result an accused who is charged with the commission of a
culturally motivated crime has no guarantee that his cultural background and
values will in fact be considered as a mitigating factor during his criminal trial.
It is thus ultimately concluded that a so-called "cultural defence" does not
exist in the South African Criminal law.
The indigenous beliefs and customs above not only result in the commission
of common law or statutory crimes, but also in the infringement of various
fundamental human rights in the Constitution. Witch-killings result in the
infringement of the constitutional right to life and the right to freedom and
security of the person. However, witches and wizards who are persecuted for practising witchcraft are also denied their right to a fair trial entrenched in
the Constitution. Similarly, muti-murders and necklacing also result in the
infringement of the right to life and the right to freedom and security of the
person entrenched in the Constitution. The custom of ukuthwala results in
the infringement of the right to equality, the right to freedom and security of
the person, the right to live in an environment that is not harmful to health or
well-being, the right not to be subjected to slavery, servitude or forced labour,
the right to basic education and other constitutional safeguards aimed at
protecting children.
In light of the constitutional right to freedom of culture and the right to freely
participate in a cultural life of one's choosing the question can be asked
whether the time has come to formally recognise a cultural defence in the
South African criminal law. In this study it is argued that these constitutional
rights do not warrant the formal recognition of a cultural defence. Instead, it
is recommended that the conflict between African customary law and the
South African common law can be resolved by bringing indigenous beliefs
and customs in line with the values that underpin the Constitution as the
supreme law of South Africa. Of course, this does not mean that the courts
should ignore cultural considerations during a criminal trial if and when they
arise. In fact, as pointed out in this study, the courts have a constitutional
duty to apply African customary law when that law is applicable. It goes
without saying that, when an accused attempts to escape criminal liability for
his unlawful conduct by raising arguments of his cultural background, African
customary law will be applicable and must be considered by the court. This
in turn raises the question as to how the criminal courts can ensure that they
give enough consideration to the possibility that an accused's criminal
conduct was culturally motivated so as to comply with their constitutional
mandate referred to above. Although it would be nearly impossible to
formulate a perfect or flawless approach according to which a judicial officer
can adjudicate criminal matters involving culturally motivated crimes, the
author suggests the following practical approach which may provide some
guidance to judicial officers in dealing with cases involving culturally
motivated crimes: • Step 1: Consider whether the commission of the crime was culturally
motivated or not. If it seems as though the accused did not commit a
culturally motivated crime, the trial can continue on that basis. If,
however, it is evident that the accused indeed committed a culturally
motivated crime, step 2 follows.
• Step 2: Once it has been determined that the commission of the crime
was culturally motivated, the next step is to determine which indigenous
belief or custom led to the commission of the crime. Once the relevant
indigenous belief or custom has been identified, step 3 follows.
• Step 3: When it is clear which indigenous belief or custom led to the
accused's commission of the crime, the next step is to determine
whether arguments pertaining to that particular indigenous belief or
custom may be raised within the context of the existing defences in the
South African Criminal law in order to exclude the accused's criminal
liability. If an accused relies on one of the existing defences in the South
African criminal law, he will have to lay a proper evidential foundation
for his defence before the court. In assessing the evidence put forth by
the accused, the judicial officer must consider the judgment and
reasoning in previous cases dealing with the particular indigenous
belief or custom. A judicial officer must also consider the values
underpinning the Constitution when conducting such an assessment. If
a judicial officer upholds an accused's defence, the accused is
acquitted. However, if the judicial officer rejects an accused's defence,
the accused must be convicted and step 4 follows.
• Step 4: Once an accused has been convicted, a court should consider
whether arguments of his cultural background can serve as an
extenuating circumstance, mitigating the punishment to be imposed on
him.
However, the practical approach above merely serves as a suggestion to
judicial officers in dealing with culturally motivated crimes and ultimately it
will be up to the judiciary to develop both the Western common law and African customary law to resolve the criminal law conflicts between these two
legal systems.
The research for this study was concluded in November 2013. / LLD, North-West University, Potchefstroom Campus, 2014
| Identifer | oai:union.ndltd.org:NWUBOLOKA1/oai:dspace.nwu.ac.za:10394/13362 |
| Date | January 2014 |
| Creators | Matthee, Jacques Louis |
| Source Sets | North-West University |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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