Criminal Law PDF

CRIMINAL LAW - Customary law is generally not a penal system Based on principles of restorative and healing justice Crimes under common law are committed against state not individuals Under customary law crimes are committed against individuals The distinction between customary criminal law and t...

CRIMINAL LAW - Customary law is generally not a penal system Based on principles of restorative and healing justice Crimes under common law are committed against state not individuals Under customary law crimes are committed against individuals 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. • The most obvious distinctions between customary criminal law and delict relate mainly to legal procedures. According to Labuschagne and Van den Heever, the two main procedural differences are as follows: 1. 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. 2. 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 Law of Delict vs Criminal law - Parties in civil matters personally present their case - In criminal matters members of the tribal court present the factual details and lead the evidence - In civil matters parties must try extrajudicial negotiations - In criminal matters only a traditional leaders may allow extrajudicial settlements 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 → → → → → The most common forms of punishment were confiscation of property, fines and loss of status, and in particular, loss of social status appropriate penalties imposed by courts are determined in accordance with clearly defined rules of punishment and sentencing. Criminal co-liability exists under customary law Forms of punishment include: confiscation of property, fines and loss of status Loss of status: s 30 of the Natal Codes of Zulu Law Traditionally criminal penalties were not fixed Changed by s 20(2) of the Black Administration Act: - A chief, headman or chief’s deputy may not inflict any punishment involving death, mutilation, grievous bodily harm or imprisonment or impose fines in excess of R100 or two head of large stock or ten head of small stock or impose corporal punishment Specific customary law offences 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 Witchcraft - Accusations of witchcraft may lead to a delictual claim Practising witchcraft is a criminal offence One of the greatest crime under customary law Regulated by the Witchcraft Suppression Act 3 of 1957 See offences listed in section 1 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. Contempt or defiance of the head of a group 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 Customary law prohibits 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. • • • • Customary law protects group interests Groups function properly if it has a leader Defiance of the leader is a criminal offence Based on the custom of inhlonipo Other crimes under the Natal Code of Zulu Law The Natal and KwaZulu Codes and the BAA prescribe offences, some of which were known in customary law. First, it is an offence for any member of the tribal community to disregard customs or ‘regulations’ regulating the duly defined tribal boundaries or, without authority, to move his family from their own area to that of another presumably for permanent residential purposes. Second, section contains a scale of the maximum amounts or size of lobolo property that may be delivered in respect of marriages to women in certain categories. In the case of doubt, ‘the lobolo shall not exceed ten head of cattle or their equivalent’.Under section 62, it is an offence for any person to receive ‘lobolo in excess of the scale prescribed in section Third, any person who coerces or attempts to coerce a woman to enter into a marriage commits an offence. The Natal Code also prohibits the guardian of a woman from permitting the celebration of a customary marriage after the official witness has stopped or directed the suspension of such celebration. Fourth, there are miscellaneous offences listed under section 117. The following persons shall be guilty of an offence: failure by those who have a natural duty to provide the necessities of life for any other person to do so knowingly omitting to give proper warning to neighbours and other interested parties concerning the presence of a contagious or infectious disease among livestock carrying traditional weapons without the written authorisation of the district officer failure by the family head to report to the chief any serious crime committed or the death of any person at or near his family home. Examples where the ordinary courts have applied customary criminal law - There are cases where the courts have accepted defences based on customary law even though the offender was charged and tried in terms of criminal law under the common law and legislation. - Generally, customary law places most emphasis on group rights, interests and duties. Similarly, a crime is committed if the perpetrator’s conduct violates the interests of the group, for example the family, clan or tribal community, as represented by an individual, for example the family head, chief or king. - Similarly, based on the principle of co-liability, if any member of the group commits a crime, he or she is punished together with the head of the group, for example the family head, because the head of the group is generally liable for crimes committed by individual members of the group