Influence of the Cultural Defence on Unlawfulness in South African Criminal Law

Abstract

South African criminal law does not formally recognise a separate or distinct cultural defence despite the courts having had ample opportunity to consider doing so. A formal cultural defence could negate an accused’s liability for a so-called “culturally motivated crime” or, at the very least, mitigate the accused’s sentence. The desirability of recognising such a defence in South Africa’s criminal law necessitates understanding its possible influence on the requirements for criminal liability. This article evaluates the influence of the cultural defence on the element of unlawfulness. The first part outlines unlawfulness in South African criminal law. The subsequent parts consider whether private defence, necessity, obedience to superior orders and consent as grounds of justification in South Africa can accommodate arguments that an accused’s indigenous belief or custom resulted in a culturally motivated crime. The aim is to determine whether South African criminal law on unlawfulness has a gap that only a separate and distinct cultural defence can fill. The article concludes that South Africa’s principles of unlawfulness are already broad enough to accommodate arguments of an accused’s indigenous belief or custom to negate this element of criminal liability without the need for a separate or distinct cultural defence.