The cultural defence and cultural identity: friend or foe?
(North-West University (Vaal Triangle Campus))
Paper short abstract:
This paper considers whether the formal recognition of a cultural defence in South African law will contribute to the protection of the cultural identity of minority groups in South Africa.
Paper long abstract:
Cultural practises are essential to the identity of various cultural groups in South Africa and should not be interfered with. Cultural practises are clouded by a contentious debate as they can lead to the commission of common law crimes and/or an infringement of basic human rights protected in the Constitution of the Republic of South Africa, 1996. Criminal cases prior to and after 1996 reveal that there are numerous cases where an African accused, charged with committing a common law crime, put evidence of his cultural background and values before the court in an attempt to escape criminal liability or, at least, receive a lighter sentence. This is referred to as the "cultural defence" in criminal law. The focus of this paper is to consider whether the formal recognition of a cultural defence, a defence currently unknown to South African criminal law, will contribute to the protection of cultural identity.
Legal features of cultural diversity: experiences from the African continent (IUAES Commission on Legal Pluralism)