Cultural defences in an open and democratic South Africa with specific reference to the custom of ukuthwala and belief in Witchcraft.

Abstract

The Constitution of the Republic of South Africa guarantees the right to culture for all its citizens and guarantees non-discrimination on account of religion, conscience, belief and culture. Culture shapes our identity; influence our reasoning, perception and behaviour therefore culture should be a crucial consideration when determining a person’s criminal liability. This paper is based on a notion that conduct of an individual can be seen as an indigenous belief or custom in terms of African customary law but at the same time be considered a crime in terms of our common law and statutory law. This paper will be dealing with the controversial custom of ukuthwala and the belief in witchcraft. This paper will seek to demonstrate that conduct of an accused who thwalas a girl with the honest and bona fide intention to secure a wife under the custom of ukuthwala, where the accused had a genuine yet mistaken belief that his conduct was justified under the custom of ukuthwala his mistaken yet genuine belief may exclude the element of mens era. This paper will further seek to demonstrate that in witchcraft related offences where the belief in witchcraft and the belief in the supernatural is the motivation for the commission of the offence such belief have the potential of excluding the perpetrator criminal liability. Therefore this paper seeks to demonstrate the importance of the recognition of a cultural defence in an open and democratic South Africa.