African Customary Law Chapter 12 PDF

Chapter 12 Criminal law 12.1 Introduction 12.2 The theory of customary criminal law 12.2.1 The distinction between customary criminal law and the customary law of delict 12.2.2 Punishment and co-liability 12.3 Specific customary law offences 12.3.1 Witchcraft 12.3.2 Contempt or defiance of the head...

Chapter 12 Criminal law 12.1 Introduction 12.2 The theory of customary criminal law 12.2.1 The distinction between customary criminal law and the customary law of delict 12.2.2 Punishment and co-liability 12.3 Specific customary law offences 12.3.1 Witchcraft 12.3.2 Contempt or defiance of the head of a group 12.3.3 Other crimes under the Natal Code of Zulu Law 12.4 Examples where the ordinary courts have applied customary criminal law This chapter in essence 12.1 Introduction In its Report on Conflict of Laws, the South African Law Commission (SALC) warned about the dangers of allowing all courts to apply the customary law of crime. The SALC noted the following: It is a different matter to require other courts to apply the customary law of crime. Although it has always been assumed, since colonial times, that the common law should provide an overall framework for government and control of the population, this assumption has never been seriously considered in South Africa. To broaden the scope of customary criminal law now would pose a major question of policy … In the circumstances, there seems to be good reason for not changing the existing position.1 The SALC further highlighted the turmoil that may result from the application of customary law of crime parallel to the criminal law under the common law and legislation in the following terms: Criminal law, like other branches of public law, tends to be identified with state sovereignty. Hence, it will be readily accepted that everyone in the country should be subject to the same system of public law. Moreover, because the commission of crimes affects the public weal, a strong argument can be made for not allowing offenders to plead innocence on the ground that their acts were condoned by a particular cultural tradition. When laws involve not individual or narrow community interests, but wider interests of the society as a whole, the right to equal treatment will outweigh any freedom to pursue a culture of choice.2 This chapter deals with the distinctive aspects of customary criminal law. In particular, it considers the theory of customary criminal law, specific customary law offences and examples where the ordinary courts have applied customary criminal law. 12.2 The theory of customary criminal law Considering all the difficulties associated with the question of whether ordinary courts should apply customary criminal law alongside criminal law under the common law and legislation, it is necessary to discuss the African customary concept of criminal law with regard to the structure or nature of African dispute resolution, the distinction between customary criminal law and the customary law of delict, and punishment and co-liability. 12.2.1 The distinction between customary criminal law and the customary law of delict Customary law is not homogeneous and it is not, generally, a penal system. It is a system based on principles of restorative and healing justice. By comparison, with criminal law under the common law and legislation, all crimes are committed against the state rather than the victim. Therefore, it is only the state that may punish the offender. Under customary law, some crimes are committed against private individuals (or a group of individuals) or the state or both. As a result, many lawyers have been unable to distinguish customary criminal law from the customary law of delict. The most obvious distinctions between customary criminal law and delict relate mainly to legal procedures.3 According to Labuschagne and Van den Heever, the two main procedural differences are as follows: • First, the parties in a civil matter must personally present their case while in criminal matters the responsible member of the tribal court must present the factual details of the offence and lead the evidence. • Second, customary law requires that the parties in civil matters attempt to negotiate and settle their dispute extrajudicially through a group leader before approaching the court. With criminal matters, however, the traditional leader has the discretion to allow negotiations and extrajudicial settlement.4 Other differences relate to the penalties imposed for violations of law. For civil matters, damages paid to the plaintiff are not necessarily assessed according to the actual loss suffered by the plaintiff.5 In most situations, damages are fixed for delictual wrongs.6 In criminal matters, the penalties imposed by the traditional court in the form of fines are paid primarily to the traditional leader or, at the traditional leader’s discretion, to both the traditional leader and the victim of the crime. Traditionally, damages and criminal penalties were paid in livestock. In modern times, however, customs have evolved and damages and penalties are now paid in money or a combination of livestock and money. PAUSE FOR REFLECTION Distinguishing crime from delict in customary law Is the perception that customary law did not distinguish between crimes and delicts incorrect? The perception may have been created by a combination of factors, but it seems that the main contributing factor is that the system allows for punishment and reparation or compensation in the same action,7 and that customary law does not recognise detention or imprisonment. The fact that criminal penalties and delictual compensation are meted out in the same action is not unique to customary law. Similar rules have been codified in South Africa under sections 297, 300 and 301 of the Criminal Procedure Act.8 These provisions of the Criminal Procedure Act allow the courts, having convicted the offender, to order him or her: • to pay compensation to the complainant for pecuniary loss resulting from the offence • to suspend or postpone the sentence and release the offender on condition that he or she pays compensation to the complainant • to render specific benefit or service in lieu of such compensation for damage or pecuniary loss.9 These provisions of the Criminal Procedure Act also reflect the customary law theory of criminal punishment. That is, the purpose of punishment is not only to punish the offender, but also to ensure that the victim is properly compensated through summary procedures. 12.2.2 Punishment and co-liability African customary law principles of punishment are based on restorative justice, reconciliation and ubuntu. In S v Maluleke, the Court said that restorative justice: emphasises the need for reparation, healing and rehabilitation rather than harsher sentences, longer terms of imprisonment, adding to overcrowding in jails and creating greater risks of recidivism ... In addition, restorative justice, seen in the context of an innovative approach to sentencing, may become an important tool in reconciling the victim and the offender, and the community and the offender.10 Consequently, African customary law did not provide for punishment in the form of detention, imprisonment, torture, brutal punishment and hard labour. The most common forms of punishment were confiscation of property, fines and loss of status,11 and in particular, loss of social status.12 Traditionally, if the offender was too poor to afford a fine, ‘his father or nearest relative was held responsible for its payment’.13 Thus, elements of co-liability in criminal punishment were common and, generally, criminal penalties were not fixed by custom. It may be argued that customary law did not provide for minimum and mandatory penalties, and that the traditional leader had the discretion to impose any punishment for any offence. Consequently, the assessment of the appropriate sentence was usually not an issue for dispute. In modern times, appropriate penalties imposed by courts are determined in accordance with clearly defined rules of punishment and sentencing. Further, the powers of courts of traditional leaders are also legally restricted in so far as punishments for both customary and statutory law offences are concerned. Section 20(2) of the Black Administration Act (BAA)14 provides as follows: … a chief, headman or chief’s deputy may not inflict any punishment involving death, mutilation, grievous bodily harm or imprisonment or impose a fine in excess of R100 or two head of large stock or ten head of small stock or impose corporal punishment. Note that although customary law may not be strictly classified as a divine system of law as punishment for certain serious offences was carried out by humans, it was and still is considered to be supernatural. People therefore voluntarily observe the rules of customary law out of fear of supernatural punishment. According to Hammond-Tooke: None of the South African Bantu have the concept of chance in their worldview. Apart from death from extreme age and minor illnesses such as chills and stomach upsets, all deaths and occasions of misfortune are believed to be caused (‘sent’) by some external agent. This agent may be a supernatural being in its own right, or a human being using supernatural means. In the first case it is the ancestors who are sending the misfortune, in punishment for some breach of custom: in the latter the agent is human, a witch or sorcerer.15 Traditionally, the punishments for more serious crimes were banishment or exile,16 and execution.17 Only the paramount chief or king could impose these punishments. In S v Makwanyane, Sachs J noted that in the 1850s, the absence of the death penalty in Zulu customary law angered Shepstone, Lieutenant Governor of Natal.18 He quoted Donald Morris who wrote: Hearken to Shepstone on November 25, 1850, substituting capital punishment for the native system of cattle fines in the case of murder ... Know ye all ... a man’s life has no price: no cattle can pay for it. He who intentionally kills another, whether for Witchcraft or otherwise, shall die himself.19 The British colonial government of the Cape seemed to hold the same view in the early 1800s after taking over the Cape Colony from the Dutch. As Terblanche observes: The British found the existing criminal procedure to be of little substance and started the process of replacing it with the British system from 1828 onwards.20 In modern times, fines21 and loss of status22 are the most common punishments, while corporal punishment,23 banishment24 and execution25 have been outlawed in South African law. 12.3 Specific customary law offences 12.3.1 Witchcraft Terminology buloyi witchcraft in the Sesotho and Setswana languages muthi commonly used to refer to umuthi, which means medicine (good or bad) in the Nguni languages ukubhula an isiZulu word meaning either to consult a diviner or what a diviner does when he or she ‘diagnoses’ or identifies a problem ukuphengula another word for ukubhula, used mostly among emaSwati ukunuka an isiZulu word, literally ‘to smell’, meaning to divine or smell out ukuthakatha to practise witchcraft Being a wizard is not a crime, but casting a spell on another person is a criminal offence, particularly if this leads to the death of another person. In addition, making any statement claiming that another person is a wizard is defamatory and actionable in the customary law of delict, but may not be punished criminally. In Simanga Mankayi v Nosawusi Mbi-Maselana,26 the Court said: In Native law and custom the most serious charge that can be made against anyone, and the gravest crime that anyone could be accused of, was that of causing the death of any person by means of witchcraft, and in Native law the only action that could be entertained for defamation was if a person was said to have practised witchcraft. According to traditional customary law, wizards were not criminally punished by the ruling authority, but were frowned upon and sometimes attacked by members of the public and traditional doctors. Such incidents are still reported in South Africa today.27 Customary law did, however, punish any conduct associated with witchcraft where such conduct resulted in death, injury or damage to the property of another person. Essentially, this meant that by comparison, killings caused by acts of witchcraft were considered to be more serious than other cases of murder.28 Whitfield recorded the seriousness of the crime of witchcraft among the Tsonga as follows: … witchcraft (buloyi) is one of the greatest crimes which a man can commit. It is equivalent to assassination, even worse than murder, as a dim idea of anthropology is added to the simple charge of killing. A wizard kills human beings to eat their flesh.29 South African legislation also criminalises ‘the practice of witchcraft and similar practices’.30 The Witchcraft Suppression Act31 does not define witchcraft, but lists offences relating to the practice of witchcraft. Section 1 outlines the following criminally punishable witchcraft practices: Any person who imputes to any other person the causing, by supernatural means, of any disease in or injury or damage to any person or thing, or who names or indicates any other person as a wizard … is guilty of an offence. In S v Latha, the Court held that: Section 1(a) of the Witchcraft Suppression Act 3 of 1957 was promulgated in order to provide for the situation where persons accused another person of being a witch or a wizard in circumstances where they would not have been criminally liable at common law, but whose imputations led to the death or injury of the person imputed to be a witch. The primary purpose of the section is to punish people whose utterances have resulted in other people killing or injuring another.32 In assessing sentence for contravening section 1(a) of the Witchcraft Suppression Act, the interest of society requires that the sentence must not only deter the offender and others from naming a person as a witch or wizard, but must also reflect some sympathy for the subjective beliefs and motive of the accused.33 Further, the following practices constitute offences under section 1 of the Witchcraft Suppression Act: Any person who – (b) in circumstances indicating that he professes or pretends to use any supernatural power, witchcraft, sorcery, enchantment or conjuration, imputes the cause of death of, injury or grief to, disease in, damage to or disappearance of any person or thing to any other person is guilty of an offence. (c) employs or solicits any witchdoctor, witch-finder or any other person to name or indicate any person as a wizard; (d) professes a knowledge of witchcraft, or the use of charms, and advises any person how to bewitch, injure or damage any person or thing, or supplies any person with any pretended means of witchcraft; (e) on the advice of any witchdoctor, witch-finder or other person or on the ground of any pretended knowledge of witchcraft, uses or causes to be put into operation any means or process which, in accordance with such advice or his own belief, is calculated to injure or damage any person or thing; (f) for gain pretends to exercise or use any supernatural power, witchcraft, sorcery, enchantment or conjuration, or undertakes to tell fortunes, or pretends from his skill in or knowledge of any occult science to discover where and in what manner anything supposed to have been stolen or lost may be found, shall be guilty of an offence ...34 Considering the practices associated with witchcraft as outlined above, it may be concluded that the practice of witchcraft is evident in South Africa. Whether or not such practices lead to the alleged consequences is questionable. For instance, it has been reported that striking miners used witchcraft muthi (traditional medicines) during the 2012 Marikana strike that resulted in the shooting of some strikers by police. It was further reported that some of the 34 miners killed during that strike may have believed that the traditional healer’s muthi had made them invincible and that they could survive the shooting.35 The most recent legal matters involving the practice of witchcraft are indicative of the extent to which such practices and people’s belief in witchcraft has affected them. In Metal and Electrical Workers Union of SA obo Sibuyi and Wireforce Steelbar (Pty) Ltd,36 the workers refused to come near or to work near a machine which was operated by one of their colleagues (the applicant in the matter). They had apparently observed the applicant sprinkling muthi near and around the machine. As a result, the employer dismissed the applicant on the grounds of ‘sabotage’ because his colleagues believed that they would die if they came near the machine. At the CCMA hearing, it was found that the applicant had merely sprinkled sand over spilled oil. Despite this finding, the CCMA ruled that the workers’ unreasonable beliefs in witchcraft would make it inappropriate and difficult for the applicant to be reinstated. The employer was required to compensate the applicant for an amount equal to one year’s salary. In S v Alam,37 a traditional healer told the accused to obtain human blood, which the healer wanted in order to perform a ritual, in return for financial compensation. The accused then raped a woman and obtained her blood after fatally stabbing her. Where the practice of witchcraft as contemplated in section 1(a) to (e) of the Witchcraft Suppression Act results in the death of a human being, the court must impose a compulsory sentence of life imprisonment unless the court is persuaded that compelling circumstances justify a lesser sentence.38 Compelling circumstances were found to exist in S v Latha39 where two young accused were convicted of the murder of a person whom they believed was bewitching their family. The Court found that the accused were labouring under a serious delusion which, ‘though impotent in any way to alter their guilt legally, does in some measure palliate the horror of the crime and thus provide an extenuating circumstance’.40 The Court imposed a sentence of 20 years’ imprisonment for the first accused and 15 years’ imprisonment for the second accused. Five years’ imprisonment was conditionally suspended for both accused. PAUSE FOR REFLECTION Does the Witchcraft Suppression Act address the real issues of witchcraft in South Africa? The Witchcraft Suppression Act may not be regarded as a source of customary law concerning the prohibition against witchcraft. The Act applies to and prohibits conduct specified in the Act as witchcraft and makes no mention of customary law. Thus, there may be conduct that is not covered by the Act but that would constitute a crime of witchcraft under customary law. 12.3.2 Contempt or defiance of the head of a group Terminology inhlonipho or hlompho respect in the Nguni and Sesotho languages ex curiae outside of court proceedings in facie curiae during court proceedings Customary law is a system of law that is premised on and seeks to protect group interests. The group functions properly if it has a leader. It is for this reason that customary law devised rules that prohibit the defiance of the group leader, whether that person is a king, chief or simply a family head. The offence is based on the African values of inhlonipho or hlompho (respect). This implies that any conduct that a leader considers to be disrespectful is punishable as an offence. With most African communities, a variety of factors, including conduct, speech and physical appearance, determines inhlonipho. Further, where the leader has made a particular order, defiance of such order amounts to an offence. Again, this is based on the custom of inhlonipho. Thus, the problem with this offence is that it is not clearly defined by customary law and, in its original form, the offence depends almost entirely on what the leader considers to be defiance or contempt. The problem was highlighted in R v Dumezweni where the Court referred to R v Sibiya41 and said: In a less developed system of law the outlines of legal concepts tend to be less rigid and are often not clearly defined. Such concepts are attended by disadvantages which it is difficult to eliminate with immediate effect without disturbing the natural development of such a system of law, but their elimination in criminal law is a matter of more pressing concern. It is eminently desirable that there should be a precise definition of an offence, and that its elements should not be uncertain … That is more particularly the case where it is an offence against the person called upon to pronounce upon the guilt of the accused in the first instance, who may be naturally inclined to extend the confines of the offence, if they are flexible.42 The prohibition against any conduct in defiance of traditional leaders’ orders was first codified in the repealed provisions of the BAA.43 The offences still form part of customary law despite the repeal of the relevant provisions of the BAA. This is because the Chiefs’ Courts still exist and they can punish offenders for contempt of court, that is, the orders of the chief while presiding over a case. Further, in KwaZulu-Natal, section 7(1) of the Natal Code of Zulu Law still provides that: Chiefs have the authority to require compliance by the people under their jurisdiction with their duties under Zulu law and may give orders for the purpose. Defiance of a chief’s order occurs where a person refuses to carry out the chief’s orders or does something in violation of the order or rule made by a chief. For instance, in S v Moshesh,44 the appellant appealed against his conviction for disobeying the chief’s order on the basis that the chief’s order was unlawful. He had refused to assist in the removal of school furniture from one site to another. The Court ruled that the chief had the authority to give the order he did and dismissed the appeal. To punish the offender for this offence, the chief must be a legally recognised chief.45 Contempt of a chief’s court occurs where a person fails to obey the order of a chief ex curiae (outside of court proceedings)46 or in facie curiae (during court proceedings).47 In Makapan v Khope,48 the Court held that a chief has the power summarily to convict and punish for contempt of his court committed in facie curiae while exercising civil jurisdiction. Depending on the circumstances, contempt of a chief was considered in the same way as high treason. As stated, customary law rules for contempt are deeply rooted in the custom of inhlonipho (respect) and the higher the status and authority of a leader are, the harsher the sentence is. Consequently, acts of insubordination towards a chief are considered to be criminal and punishable.49 If the same offence is directed at a king or a supreme chief, the sentence could, in the olden days, be the death penalty.50 In Mokhatle v Union Government,51 Solomon Plaatje said the following when giving evidence: In the olden days, if the chief found men undermining his position, he would get the people before him and fine or flog them. They would be killed. Defiance of the family head seems to be no longer enforced criminally in South Africa. There are no recent reported cases dealing with this offence. However, in KwaZulu-Natal, the offence remains in the law books as provided for in section 115 of the Natal Code of Zulu Law which reads as follows: any person who defies the authority of a family head, or enters a family home when permission to do so has been refused, remains in or about any family home after being requested to withdraw ... shall be guilty of an offence. 12.3.3 Other crimes under the Natal Code of Zulu Law In KwaZulu-Natal, the Natal Code of Zulu Law (the ‘Natal Code’) prescribes several offences. Some of these offences were known under traditional customary law and were codified with some amendments during the colonial, Union and apartheid eras.52 In this section, we discuss only those offences which we have not discussed elsewhere in this chapter. At least two chapters of the Natal Code have general provisions entitled ‘offence and penalties’ which are intended to punish ‘any Black who contravenes or fails to comply with any provision of [the said] Chapter’ or any ‘Black who disregards or fails to comply with any duty, obligation, direction or prohibition imposed upon him by this Code’.53 In addition to these provisions, the Natal Code specifically criminalises the following types