A Cultural Defence in South African Law?

One Person's Culture is another Person's Crime: A Cultural Defence in South African law? JL Matthee 12998095 LLB, LLM Thesis submitted for the degree Doctor Legum in Perspectives on Law at the Potchefstroom Campus of the North-West University Supervisor: Prof C Rautenbach Co-supervisor: Prof WMJ van Genugten SEPTEMBER 2014 If there are rituals performed ... that do not pass the test of constitutionality they should not prevail merely because they are part of a religion [or culture]. Neither should the followers of a religious [or cultural] belief regard themselves as outside the law merely because they have a constitutional right to practise their religion [or culture] together with other members of their religious [or cultural] community. - Prof Christa Rautenbach i ACKNOWLEDGEMENTS The writing of a thesis is a demanding task that can test one to the utmost. It is also not a task that one takes on alone. Although it is only my name that appears on the cover, there are various people that played a key role, whether directly or indirectly, in the writing of this thesis. In light hereof it is fitting to acknowledge these key role players for their valuable contribution in the realisation of this thesis. First and foremost, I wish to voice my utmost gratitude to my promoter, Prof Christa Rautenbach. Without her invaluable advice, input, patience and guidance this thesis would have never seen the light. Being able to work with her side-by-side for the last number of years has been a tremendous honour. I have learned so much from her and can only hope to one day be as good an academic, mentor and colleague as she is. Second, I wish to thank my co-promoter, Prof Willem van Genugten. It was truly an honour to have an internationally renowned scholar who was willing to provide his input and guidance in the writing of this thesis. Next I wish to thank my family and friends. With each page of this thesis I could always rely on your support and encouragement. You indeed made the difficult academic times more manageable. I also want to thank the Tilburg University in the Netherlands and the Justus-Liebig-Universität Gießen in Germany for hosting my research visits abroad. Lastly I would like to thank the following institutions and projects for their financial support: • National Research Foundation; • Transboundary protection of biodiversity (project funded by DAAD with two partners: Justus-Liebig-Universität Gießen and North-West University); • Faculty of Law (North-West University, Potchefstroom Campus); and • NWU-Postgraduate Bursary scheme. ii SUMMARY 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. iii 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 muti- murders 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 iv 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: v • 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.

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