Cultural Defence in Criminal Law: South African Perspectives

• NCJ Number: 202432
• Author(s): Pieter A. Carstens
• Date Published: 2003
• Length: 25 pages
• Sale Source: University of Pretoria
• Publication Format: Document
• Publication Type: Survey (Cross-Cultural)
• Language: English
• Country: South Africa

Annotation

This report explores the use and validity of the cultural defense in South Africa.

Abstract

South Africa is a country in transition between its traditional roots involving customary law and its emerging, rationalized policies involving national (or Western) law. The two are at odds on many levels, and the author explores these contrasts throughout the report. After an introduction, the report provides an overview of traditional cultural practices in South Africa, including concepts and definitions of witchcraft, cultural belief systems, sex and age distribution of witchcraft, and some legal aspects concerning witchcraft. The author explains that in recent years a belief in witchcraft has been construed as a cultural defense. With the emergence of the national system of law, witchcraft killings have proliferated, perhaps in response to this more Western system of law and thought. However, in conflict with this national (or Western) law, the argument of a cultural defense is often put forth. In this argument, the offender, who espouses a belief in witchcraft, claims not to have had criminal intention during the crime because their cultural beliefs and ritualistic practices led them to think they were doing the correct thing. The author illustrates the use of this cultural defense through a case of a person accused of murdering a young child. The defense was that the accused believed he was murdering an evil spirit and did not realize until later that he had murdered his young nephew. Next, the report moves into a discussion of criminal investigation practices in South Africa and looks closely at Muti (ritualistic) killings, including the belief system that supports such killings and the legal aspects surrounding such killings. Finally, the report offers an analysis of the cultural defense in South African criminal law and shows how Western law and systems of thought are often in sharp contrast to South African customary law and systems of thought. References