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'13 School of Basic Sciences Colloquium

One Person's Culture is Another Person's Crime: A Cultural Defence in South African law?

Jacques Matthee

on 15 October 2015

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Transcript of '13 School of Basic Sciences Colloquium

One Person's Culture is Another Person's Crime: A Cultural Defence in South African law?
Adv JL Matthee
School of Basic Sciences
North-West University
Vaal Triangle Campus
What is the meaning of the
term 'cultural defence'?
Key elements of a
cultural defence
Distinguishing between dominant and minority cultures
Pinning down the term 'culture'
The problem of acculturation (or assimilation)
Determining whether the minority culture required, condoned, endorsed, promoted or regards the accused's act as obligatory
Accused's conduct must meet the requirements of the minority culture
Direct relation between the accused's act and the minority culture
Arguments against the formal recognition of a cultural defence
The deterrence theory of punishment would be undermined.
Every person should be held accountable to the same standards.
Undermine rehabilitation as a goal of punishment
Promotes the establishment of stereotypes.
Culture is all too often based on prejudice.
The concept of 'culture' is too vague.
Difficulties in the implementation of the cultural defence.
"Slippery Slope"/"Pandora's Box" effect.
Culture is more appropriately considered during the sentencing phase.
Substantive definition:
A cultural defense is a defense asserted by immigrants, refugees, and in-digenous people based on their customs or customary law. A successful cultural defense would permit the reduction (and possible elimination) of a charge, with a concomitant reduction in punishment. The rationale behind such a claim is that an individual’s behaviour is influenced to such a large extent by his or her culture that either (i) the individual simply did not believe that his or her actions contravened any laws (cognitive case), or (ii) the individual was compelled to act the way he or she did (volitional case). In both cases the individual’s culpability is lessened.

Formal definition:
The cultural defence is a specific doctrine which, during a criminal trial, recognises that the accused's cultural background can serve as either an excuse or a factor mitigating punishment for the crime committed by the offender.
Arguments in favour of the formal recognition of a cultural defence
Individual's perceptions are shaped, and actions influenced by, enculturation
Individualised justice
Rights entrenched in the Constitution of the Republic of South Africa, 1996
International human rights law: All states have the obligation to protect the right to culture
Any questions, comments and/or suggestions ... ?
Is there a so-called "cultural defence" in the South African law, and if so, what is the influence of such a defence on the South African criminal law?
Why is it necessary to consider the recognition and/or effect of a cultural defence in a criminal legal system?
African Customary law
Western Common law
South African legal system before 1996
South African legal system after 1996
Western Common law
African Customary law
Official legal system
Not a true reflection of the social reality in South Africa
Various other non-officially recognised legal systems present in South Africa
Diverse Social Field in South Africa
Different value systems!
"... in the dominant Western view individuality defines the person. A consequence of this is that society is defined by the collective will of individual persons. By contrast, traditional Africans think that the social group defines the person; what is central to the human person is not individuality but membership in a community."
What is the result of this conflict in the context of the South African criminal law?

One Person's Culture is another Person's Crime -

First ever clear and comprehensive definition of culture was given in 1871 by the British anthropologist Sir Edward Burnett Tylor who defined culture as:

... that complex whole which includes knowledge, belief, art, law, morals, custom and any other capabilities and habits acquired by man as a member of society.
Today, well over 100 definitions of culture have been recorded!
There are two schools of thought on the topic of witchcraft:

"… those who say that witches do not exist and those who say that witches do exist. This difference of opinion extends to the present system of justice in the courts. Traditional courts agree that witches exist, whilst formal courts say that witches do not exist."
Two elderly women were killed in Gengqe, a rural village in the Eastern Cape, following the deaths of four boys who were struck by lightning in December 2005. The women were killed because of suspicions and rumours in the community that they had “sent” the lightning to kill the boys.
In a village near the town of Port St Johns in the Eastern Cape, three people died after drinking traditional African beer at a social gathering. Although the same beer was drunk by most of those who attended the gathering, these three “victims” were the only ones affected by the beer. This led to suspicions that they were killed by witchcraft.
In a village in the town of Mqanduli, a young woman committed suicide for no apparent reason. Again, witchcraft was suspected to be the cause.
Statutory offence to:
both accuse a person of practising witchcraft and to point someone out as being a witch or wizard;
injure and kill of a person based on information received from a traditional healer, witchdoctor or similar person;
to profess or to pretend to use witchcraft;
to solicit a witchdoctor or witchfinder to point out a witch or wizard; and
use pretended witchcraft for financial gain.

South African Law Reform Commission: Project 135 - Review of Witchcraft Legislation
Director of security for Zimbabwean parliament claimed he was assaulted by an invisible tokoloshe.
Elementary school learners confused a tokoloshe with an alien:
Human race was destroying planet through pollution.
Six female school teachers accused a male colleague of using a tokoloshe to cast a spell on them so that he could have sex with them in their sleep.
Security officer claimed he was being harassed by strange creatures that looked like small human beings but who also had the ability to turn into a snake.

"short, hairy, baboon-like being, with vicious teeth and a huge penis"
"fabulous, short and hairy-looking elf said to be mischievous and fond of women and sour milk"
"dwarf, a gremlin, or a hairy creature resembling a monkey"
R v Ngang 1960 3 SA 363 (T)
Accused dreamt he was being attached by a tokoloshe.
To defend himself he got up and stabbed at the "thing".
Not a tokoloshe, but the complainant.
Originally convicted, but acquitted on appeal based on the defence of automatism.
S v Ngema 1992 2 All SA 436 (D)
Accused dreamt that a tokoloshe was "throttling" him.
To defend himself he woke up, grabbed a cane knife and struck three fatal blows to the "thing" - a two-year old toddler.
Conduct found to be unreasonable.
Convicted of culpable homicide.
R v Mbombela 1933 AD 269
Accused used a hatchet to strike at a "form" who was frightening children.
Turned out to be his younger nephew.
Defence that he believed he was killing an evil spirit rejected.
“The killing of humans for body parts (Cannibalism)”
“Muti murders South Africa”
South African criminal law would not be benefited by the establishment of a separate, distinct cultural defence.
The road ahead ...
Rely on existing rules and the constitutional right to cultural freedom when dealing with criminal matters involving cultural practices and/or indigenous beliefs.
The Cultural Defence: Taking the World by Storm!
Rationale: Women brought stain of dishonour to family that can only be removed by her death (extermination)
Family’s honour depends on women’s behaviour and chastity
Man’s honour rests upon ability to control wife/sister/other female relatives’ sexual behaviour
Who carries it out? Husbands/close relatives
“Offences” for which women are killed
Any behaviour through which woman expresses autonomy and contrary to social order;
Pre-marital/extra-marital sex;
Refusal to marry man chosen by family;
Demanding divorce;
Continue education; and
Work outside home.
Why relevant?
± 5000-10 000 women worldwide victims/year
Pakistan, Jordan, Afghanistan, Turkey, Palestine, UK, Canada

Banaz Mahmod
Murdered by family for falling in love with a man her family did not approve of.
"Killed for falling in love with the wrong man"
"Honour Killings"
Du’a Khalil
Iraqi girl stoned to death for having been seen with a boy from the wrong sect.
“Honor Killing – Iraqi Girl Stoned”
Female genital mutilation (Female Circumcision)
Honour Killings
Digging up of Indian graves
Oyako-Shinju (parent-child suicide)
Sacrificial scarring
Burning man, burning nation
Zimbabwe and South Africa
African necklacing
S v Mgedeze 1989 1 SA 687 (A)
Necklacing of Maki Sikhosana
Xenophobic violence against foreigners in South Africa
Xenophobic attacks against illegal immigrants
Other Laws
Full transcript