(2010) JLP 61: 109-144
Christa Rautenbach and Jacques Matthee
This article examines the so-called 'cultural defence' in South African criminal law. The expression 'cultural defence' refers to the phenomenon where indigenous customs are taken into account in the processes of a criminal trial and may have an effect on the outcome. In South Africa they may play such a role in two respects: first during the process of inquiry to ascertain if the requirements for a particular crime have been met; and secondly when a suitable punishment for a convicted accused must be determined. By making use of case law, illuminated by some comparisons with the role of Aboriginal customs in criminal trials in Australia, it is shown that culture played a definite role in South African cases prior to 1994, albeit not strictly in the sense of a true cultural defence.
The paper then examines whether the South African Constitution and, in particular, its human rights provisions, brought about a new approach to be taken in matters where custom has been an element in the motivation for an act which would normally be a crime. Making particular reference to the examples of the twala custom (a form of abduction, with or without the consent of the girl or her parents, as a preliminary to a customary marriage) and belief in tokoloshe spirits, it is shown that South African courts have sometimes, although often reluctantly, given attention to these customs, although sometimes showing little understanding of them. The major question which emerges today is whether the constitutional provisions demand a formalisation of the cultural defence or whether the existing principles used in the evaluation and punishment of crimes could continue to be applied.