South Africa is a multi-cultural country priding itself on the fact that its Constitution protects the vulnerable, minorities, and all those who do not have a voice to speak for themselves. The right to participate in, and enjoy, the culture of one’s choice is specifically protected in sections 30 and 31 of the Constitution, and the law of the land has a duty to fulfil this obligation.
The protection of cultural rights stems from the fact that the cultural identity of a person plays an integral part in every person’s life. Culture shapes the way a person thinks and acts. Certain crimes can be committed as a result of the cultural beliefs of a person. One of the most prominent, culturally-motivated crimes that take place in South Africa is witchcraft-related killing. The belief in witchcraft is used throughout this study to illustrate the need for, and use of, the cultural defence.
The legal culture that currently dominates criminal law was shaped by colonialism and Apartheid. During the analysis of the legal responses in criminal cases, and, specifically, witchcraft-related crimes, society did not deal with the cases in the light of the Constitutional duty to protect the right to culture. Cultural rights within criminal law need still to be explored.
In order to bridge the gap in criminal law between the right to participate in, and enjoy, the cultural life of one’s choice, and the fact that culture influences the way an individual thinks and acts, it is submitted that the cultural defence should be formalised. The cultural defence can be defined simply as a legal strategy that will enable a court to consider how the cultural background of an accused person has affected his or her behaviour.
The cultural defence, if formalised, will be a multiple defence, striking at the elements of capacity and fault. When a person is confronted with a dangerous or threatening situation, he or she will act instinctively. The roots of the unconscious behaviour in dangerous situations are culturally shaped. Culture can, therefore, be a great driving force, and, as a result, influence the capacity of a person to act.
With regard to intention, the court will need to take cognisance of the cultural beliefs of the person and how they influenced the state of mind of the accused at the time the crime was committed. This study takes an in-depth look at the elements of capacity and fault and how cultural beliefs should be incorporated within these elements.
The cultural defence does not, however, cater for any common and garden variety of criminal and, therefore, specific guidelines need to be set in place to prevent any abuse. This study will illuminate all the possible problems and solutions relative to the defence to determine whether the formalisation of the defence will be the best manner to develop criminal law in line with the Constitution. It is submitted that the cultural defence, if properly applied within the parameters set out in the study, should be formalised as its advantages will outweigh its disadvantages.