Christa Rautenbach

Common Law Crimes and Indigenous Customs: Dealing with the Issues in South African Law

Abstract 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.

Deep legal pluralism in South Africa: Judicial accommodation of non-state law

Abstract South Africa has a diverse society where individuals and groups have different backgrounds, religions, cultures, preferences, customs and usages. The mixed character of the South African legal system allows for a limited form of legal pluralism where either the common law or the African customary law is applied depending on the circumstances. Although the South African Constitution creates the possibility for legislative recognition of other cultural or religious systems of personal and family law, such recognition has not happened. For various historical and other reasons South African society remains splintered along cultural and religious lines, a situation which creates the ideal breeding-ground for deep legal pluralism in South Africa. The phenomenon of deep legal pluralism gives rise to unique legal challenges, most notably in the area of human rights. From time to time, individuals from cultural and religious communities living under their own legal systems, approach the South African courts for human rights protection. This contribution focuses on the way in which the South African courts have been dealing with the claims of the Muslim community to have aspects of their family law recognised or protected and attempts to draw a parallel between the cases delivered during the apartheid era and those after it. It is argued that the judiciary’s accommodation of religious and cultural diversity is contributing to the phenomenon of deep legal pluralism in South Africa.

Gender Equality, Constitutional Values and Religious Family Laws in South Africa

South Africa has a pluralistic society in which various religious and cultural groups, such as Muslims and Hindus, live according to their own customs and usages. At present the law of South Africa generally does not recognise the validity of some of these customs and usages, for example marriages concluded in terms of Islamic law or Hindu law are not recognised as valid marriages. The consequences of non-recognition have been particularly unfair to women. There have been calls for the recognition of other family law systems and, in particular, for the recognition of Islamic family law. The Constitution of the Republic of South Africa, 1996 recognises the cultural diversity of South Africa and provides for the enactment of legislation recognising other systems of law based on religion or culture. However, such legislative recognition must be consistent with the Bill of Rights and other provisions of the 1996 Constitution. All inequalities between men and women should therefore be dealt with before legislative recognition is given to family law systems that discriminate against women. In this paper the obvious tension between gender-equality and freedom of religion within the new constitutional dispensation is discussed. In doing so, the focus will be on Islamic law and the position of Muslim women with respect to inheritance laws.

South Africa: Legal Recognition of Traditional Courts - Legal Pluralism in Action

South Africa has a mixed or pluralistic legal system. It comprises of a number of distinct legal traditions: transplanted European laws (the core being Roman-Dutch law, subsequently influenced by English common law), collectively known as the common law of South Africa,1 as well as inherited indigenous laws, referred to as African customary law.2 With the commencement of the Constitution of the Republic of South Africa 200 of 1993 (the interim Constitution) 1994 followed by the final Constitution of the Republic of South Africa (the Constitution) in 1996, two more pieces had been added to this puzzle, mixing the pot even further.3 The Constitution is supreme law (Constitution: Section 2) and all other law and conduct, including the common law and customary law, are subject to it. Contemporary South African law is a fascinating blend of Western4 and African5 laws interspersed with constitutional ideals and principles. The relationship between these laws is likely to present a challenge to someone not accustomed to the South African legal system.6

The Modern-Day Impact of Cultural and Religious Diversity: 'Managing Family Justice in Diverse Societies'

This contribution deals with the modern-day impact of cultural and religious diversity and comments on some of the viewpoints to be found in Managing Family Justice in Diverse Societies. The topics dealt with in this publication create a greater awareness of the challenges family diversity presents, and illustrate that an attempt to adopt a single definite strategy to manage diversity would not be the right approach; rather that each and every situation should be managed according to its unique context.