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HomeInsightThe Criminal Law and the Customary Law conflict: Adv. Thenjwa Sellem

The Criminal Law and the Customary Law conflict: Adv. Thenjwa Sellem

ACCUSED’S SUBJECTIVE BELIEF IN WITCHCRAFT: SOUTH AFRICAN JUDGES’ CONUNDRUM: THE CRIMINAL LAW AND THE CUSTOMARY LAW CONFLICT

I must repeat the questions asked by Geoff Feltoe in a note on Zimbabean Judgments of S v Hamunakwadi 2015 (1) ZLR 392 (H); Sv Musino HH-158-17 and S v Taurayi HH-298-90 with caption “ When Culture Clashes with Criminal Law Case. Geoff ask the following pertinent questions: –

1. How should the criminal law deal with a situation where a person charged with a criminal offence asserts that he or she was engaged simply in a widely practiced customary practice which is accepted as being appropriate in traditional society?

2. How should the criminal law deal with a situation in which a person murders or assaults a person because he or she believes that the other person is using witchcraft to cause grave harm to them or their family members?

3. A person brought up in traditional society who engages in conduct which the community perceives as entirely appropriate is likely to be baffled when he or she is prosecuted for a criminal offence. The courts face the problem of deciding how to deal fairly with an accused who believes that he or she has done nothing wrong because he or she was simply engaging in a traditional practice. Should the accused’s belief constitute some sort of defence, or should it merely affect sentence?

UNPRECEDENTED HEINOUS AND HORENDOUS MURDER OF WOMEN

The problem in this article emerges from a conflict between the criminal law and the customary law.
Women who are being killed in heinous and horrendous manner as witches have a right to life as
However, those who kill such women enjoy an unprecedented benefit from their subjective belief in witchcraft, which subjective benefit endow them with an avenue to escape life imprisonment in South Africa.

The Supreme Court of South Africa and the High Court of Lesotho made remarks in S Chapman (1997) ZASA 45; 1997 (3) SA 341 SCA at 345 A-B, and in Rex v Ralee (CRI/T/0050/2015) (2022) LSHC 07(17 February 2022) at paragraph 50, that Lesotho, same applies to South Africa, is currently experiencing unprecedented levels of violent crimes, especially crimes against women. It is therefore in the interest of society for the courts to impose appropriate sentences when accused are convicted of those violent crimes, more so, when such crimes are perpetrated on the most vulnerable members of our society such as women whether young or old. A crime of murder is a serious crime, but once it is perpetrated against the women it should not be treated leisurely.

Women in South Africa have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work and to enjoy the peace and tranquility of their homes without the fear, the apprehension and the insecurity which constantly diminishes their quality and enjoyment of their lives.”

SOUTH AFRICAN JURISPRUDENCE

The advent of the Constitution and democracy in South Africa has ushered a constitutional dispensation which introduced a chapter of human rights – the Bill of Rights which is chapter two of the Constitution.

In paragraph 19 of S v Xaba and seven others, Case No. 48/2016, Kwazulu-Natal Division, Pietermaritzburg, judgment delivered on 03 July 2018, Mbata J remarked that it is common knowledge that King Shaka and King Cetshwayo discouraged the use of izangoma as it encouraged the killing of innocent people. He referred to paragraph 22 of the judgment in S v Ndhlovu and another 1971 (1) SA 27 (RA) that if the crime is committed with cruelty, this should negate the mitigating circumstances.

In paragraph 23 of the judgment he agreed that a belief in witchcraft should not be considered as a mitigating factor at all. In paragraph 29 of the judgment he also referred to S v Vilakazi 2009 (1) SACR 552 (SCA) para 14 that if the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

The Supreme Court of Appeal of South Africa, in paragraph 9 of its judgment (The Director of Public Prosecutions v Moloto (1007)/18) (2019) ZASA 83, delivered on 31 May 2019), remarked that a strong message has to be sent to the communities who still continue with practices of witchcraft that such conduct will receive the strictest punishments prescribed in terms of the law. (My emphasis). Having said this, in paragraph 11 of the judgment the court changed its stance, and the accused’s belief in witchcraft was accepted as one of the mitigating factors, and one of the substantial and compelling circumstances which warranted the court to deviate from imposing a prescribed minimum sentence of life imprisonment.

In terms of section 1(c) of the Constitution everyone has a right to enjoy the rule of law. Women are included into that “everyone”.

Section 2 of the Constitution renders all laws or conducts inconsistent with it invalid.
It goes without saying that section 51(1) and Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 prescribes a life imprisonment sentence if the deceased’s death resulted from, or is directly related to, any offence contemplated in section 1(a) to (e) of the Witchcraft Suppression Act 3 of 1957.

A court may deviate from imposing the prescribed minimum sentence if there are substantial and compelling circumstances that are persuasive enough and justify the court in doing so.
There is a lacuna in the above Criminal Law Amended Act in the sense that it does not specifically list the substantial and compelling circumstances for judges to deviate from the application of the minimum sentence of life imprisonment.

Judges have a discretion, as a result of such a lacuna, to determine the existence and non-existence of such circumstances. Of course, such circumstances cannot be unlawful, unconstitutional, and immoral.

Can we then say that a subjective belief in witchcraft which causes the accused to commit a heinous and horrendous murder of a woman, whether young or old, is a lawful, constitutional, and morally acceptable circumstance? If the answer is in the negative, then a subjective belief in witchcraft is not and cannot be accepted as one of the circumstance a judge must consider in order to deviate from imposing a prescribed life imprisonment.

In 2001 the Constitutional Court considered the challenge to section 51(1), read with section 51(3)(a) of the Criminal Law Amendment Act, 105 of 1997 which obliges High Courts to sentence people convicted of certain serious offences to life imprisonment, unless “substantial and compelling circumstances” justify the imposition of a lesser sentence. Held, per Ackermann J in a unanimous decision that there was no infringement of the separation of powers or of the rights contained in sections 12(1)(e) and 35(3)(c) of the Constitution. The Constitutional Court declined to confirm the Court Order of invalidity by Eastern Cape High Court in S v Dodo 2001(3) SA 301 (E); 2001(3) BCLR 279 (E).
Therefore, judges are endowed with a discretion to determine whether or not substantial and compelling circumstances exist, justifying a lesser sentence than a prescribed minimum sentence. This is where a conundrum is depicted in judgments.

JUDGE JOLWANA’S JUDGMENT

In S v Manundu and eight others, Case No. CC18/2020, Eastern Cape Division, Mthatha, the Honourable Justice Jolwana J has recently deviated from imposing a life imprisonment, relying, inter alia, on S v Matyityi 2011 (1) SACR 40 (SCA) para 23, that the accused had a subjective belief in witchcraft. Briefly, accused 1, 2, 4 and 8 had mercilessly murdered a 92-year-old woman (see paragraph 21 at page 11) whom they subjectively believed was a witch.

It is quintessential to highlight some of the interesting points from this judgment as follows: –

1. A subjective belief that a woman whom the accused has heinously and horrendously murdered is a witch does not constitute a defence in favour of the accused to get an acquittal.

2. A subjective belief that a woman whom the accused has heinously and horrendously murdered is a witch is a substantial and compelling circumstance warranting a judge to deviate from imposing a prescribed life imprisonment.

3. In paragraph 15 of the judgment Jolwana J remarked that “there is nothing really substantial or compelling about the personal circumstances of all the accused, considered alone and cumulatively without regard to the issue of their belief in witchcraft.”

4. In paragraph 22 of the judgment Jolwana J remarked that these kinds of behaviour, referring to abuse and violence perpetrated against elderly women on the basis of subjective belief in witchcraft, clearly call for lengthy imprisonment terms to send a clear message to everybody who claims to believe in witchcraft that such conduct even on the basis of what is supposedly, a genuine belief in witchcraft is unacceptable and will not be tolerated. It must be firmly rejected as an antiquated stone of belief with no place in a society based on the rule of law. (My emphasis).

5. However, in paragraph 31 of the judgment, Jolwana J changed his stance which he had already adopted in paragraph 22 of the judgment that a genuine belief in witchcraft is unacceptable and will not be tolerated. It must be firmly rejected as an antiquated stone of belief with no place in a society based on the rule of law – which paragraph stands as a ratio decidendi for a judge to make a determination whether to accept or not to accept a subjective belief in witchcraft in our law
as a substantial and compelling circumstance justifying a judge to deviate from imposing a minimum sentence in a horrendous murder of an elderly woman.

6. In paragraph 31 Jolwana J remarked that on the facts of this case I find that the accused’s belief in witchcraft must be considered as a substantial and compelling circumstance to justify a departure from the prescribed minimum sentence of life imprisonment.

7. In paragraph 31 Jolwana J accepted and tolerated a subjective belief in witchcraft as a justification of departure from imposing a life imprisonment.

8. Paragraph 22, read with paragraph 31, of the judgment causes a judge’s conundrum. It is crucial to take into consideration the following jurisprudence: –

8.1 The Criminal Law Amendment Act, read with Witchcraft Suppression Act, prescribes a minimum sentence of life imprisonment for a murder motivated by a belief (be it subjective or objective) in witchcraft.

8.2 It is my empirical knowledge, which agrees with the preamble of the Criminal Law Amendment Act, that the substantial and compelling circumstances must be constitutional and lawful circumstances as it is the same act which introduces lawful and constitutional sentences, otherwise such circumstances (a belief in witchcraft) cannot be enforceable or regarded as substantial and compelling circumstances justifying a judge to depart from imposing a prescribed life imprisonment.

8.3 One can argue that a subjective belief in witchcraft does not differ from a consumption of alcohol or any other substance that influences the accused to commit a heinous crime of murder of a woman. Section 1 of the Criminal Law Amendment Act 1 of 1988 does not permit the accused to benefit from
the root cause for the commission of a criminal offence, even in cases of heinous and horrendous murder of women.

8.4 The aforementioned section states that any person who consumes or uses any substance which impairs his or her faculties to appreciate the wrongfulness of his or her acts or to act in accordance with that appreciation, while knowing that such substance has that effect, and who while such faculties are thus impaired commits any act prohibited by law under any penalty, but is not criminally liable because his or her faculties were impaired as aforesaid, shall be guilty of an offence and shall be liable on conviction to the penalty which may be imposed in respect of the commission of that act.

8.5 In the above hypothesis, the consumption of alcohol or any other substance, which is equated to a subjective belief in witchcraft, as both of them have the same dire consequences, is rather an aggravating factor than a mitigating factor.

8.6 In the light of the above, Jolwana J would not have been correct to consider a subjective belief in witchcraft as a substantial and compelling circumstance to enable a judge to deviate from imposing the prescribed life imprisonment.

8.7 The Witchcraft Suppression Act 3 of 1957 does not only outlaw or repeal laws enforcing witchcraft, but it prohibits and criminalizes instances of witchcraft, which forms of witchcraft are, inter alia, motivated or spring out of the subjective belief in witchcraft.

8.8 The Constitution renders all conducts or beliefs inconsistent with it invalid. Jolwana J remarked, as already discussed above, that a subjective belief in witchcraft is against the rule of law. The rule of law is espoused in section 1(c) of the Constitution. Apropos, a subjective belief is constitutionally invalid according to Jolwana J because it conflicts with the supreme law of the Republic of South Africa in so far as it does not accord with the rule of law.

CONCLUSION AND RECOMMENDATION

A judicial discretion, in determining substantial and compelling circumstances in the context of the Criminal Law Amendment Act, must be exercised primarily to promote the purport and the objectives of the Bill of Rights consistent with the objectives and the provisions of the Criminal Law Amendment Act and the Witchcraft Suppression Act.

In other words, a subjective belief in witchcraft leading the possessor thereof, or the accused, to committing heinous and horrendous murders against women cannot be compatible with the interest of justice, the public interest, the Constitution, and the provisions of the Criminal Law Amendment Act and the Witchcraft Suppression Act.

Thus, there is a need in South Africa to uproot all forms of beliefs in witchcraft to protect and prevent women from being killed as witches. Currently, judges are focusing on punishing the act as opposed to punishing the act as well as its source. A subjective belief in witchcraft can hyperbolically be described as poisonous snake which our judges do not kill, whereas they know very well that it operates against all forms of lawfulness, constitutionality, and morality, especially as against elderly women.

It is puzzling why judges in South Africa consider an accused person’s subjective belief in witchcraft, which is a contributing factor in the brutal killings or heinous and horrific murders of innocent women in that country, to be a substantial and compelling circumstance, when the Criminal Law Amendment Act expressly calls for a minimum sentence of life in prison for its results, namely the brutal killings or heinous and horrific murders of innocent women.

Adv. Thenjwa Sellem is a Senior State Advocate with 22 years of legal experience attached to the Commercial Crimes Unit, DPP, Mthatha. He is also a Provincial Chairperson of the National Bar Council of South Africa, Eastern Cape, an International Panelist accredited by and registered with the ADR Group of South Africa. He is occupying a Legal Office of the Eastern Cape Men Against GBV. He writes in his personal capacity.

Caleb Tayi
Caleb Tayi
I'm a critical reader and a lover of words. As the ECToday Editor my job is to polish and refine a story or an article, check facts, spelling, grammar, punctuation, etc.
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