Influence of the Cultural Defence on Unlawfulness in South African Criminal Law
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, mitig...
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Nomos Verlagsgesellschaft mbH & Co. KG
2024
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Online Access: | https://doi.org/10.5771/2363-6270-2023-2-148 https://doaj.org/article/e1818ed077274cc0b31ef7f2fa3af0b4 |
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ftdoajarticles:oai:doaj.org/article:e1818ed077274cc0b31ef7f2fa3af0b4 2024-09-15T17:42:47+00:00 Influence of the Cultural Defence on Unlawfulness in South African Criminal Law Jacques Matthee 2024-07-01T00:00:00Z https://doi.org/10.5771/2363-6270-2023-2-148 https://doaj.org/article/e1818ed077274cc0b31ef7f2fa3af0b4 DE EN FR ger eng fre Nomos Verlagsgesellschaft mbH & Co. KG https://doaj.org/toc/2363-6270 https://doi.org/10.5771/2363-6270-2023-2-148 2363-6270 https://doaj.org/article/e1818ed077274cc0b31ef7f2fa3af0b4 Recht in Afrika, Vol 26, Iss 2, Pp 148-174 (2024) Asia and Eurasia Africa Pacific Area and Antarctica KL-KWX article 2024 ftdoajarticles https://doi.org/10.5771/2363-6270-2023-2-148 2024-08-05T17:48:53Z 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. Article in Journal/Newspaper Antarc* Antarctica Directory of Open Access Journals: DOAJ Articles Recht in Afrika 26 2 148 174 |
institution |
Open Polar |
collection |
Directory of Open Access Journals: DOAJ Articles |
op_collection_id |
ftdoajarticles |
language |
German English French |
topic |
Asia and Eurasia Africa Pacific Area and Antarctica KL-KWX |
spellingShingle |
Asia and Eurasia Africa Pacific Area and Antarctica KL-KWX Jacques Matthee Influence of the Cultural Defence on Unlawfulness in South African Criminal Law |
topic_facet |
Asia and Eurasia Africa Pacific Area and Antarctica KL-KWX |
description |
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. |
format |
Article in Journal/Newspaper |
author |
Jacques Matthee |
author_facet |
Jacques Matthee |
author_sort |
Jacques Matthee |
title |
Influence of the Cultural Defence on Unlawfulness in South African Criminal Law |
title_short |
Influence of the Cultural Defence on Unlawfulness in South African Criminal Law |
title_full |
Influence of the Cultural Defence on Unlawfulness in South African Criminal Law |
title_fullStr |
Influence of the Cultural Defence on Unlawfulness in South African Criminal Law |
title_full_unstemmed |
Influence of the Cultural Defence on Unlawfulness in South African Criminal Law |
title_sort |
influence of the cultural defence on unlawfulness in south african criminal law |
publisher |
Nomos Verlagsgesellschaft mbH & Co. KG |
publishDate |
2024 |
url |
https://doi.org/10.5771/2363-6270-2023-2-148 https://doaj.org/article/e1818ed077274cc0b31ef7f2fa3af0b4 |
genre |
Antarc* Antarctica |
genre_facet |
Antarc* Antarctica |
op_source |
Recht in Afrika, Vol 26, Iss 2, Pp 148-174 (2024) |
op_relation |
https://doaj.org/toc/2363-6270 https://doi.org/10.5771/2363-6270-2023-2-148 2363-6270 https://doaj.org/article/e1818ed077274cc0b31ef7f2fa3af0b4 |
op_doi |
https://doi.org/10.5771/2363-6270-2023-2-148 |
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Recht in Afrika |
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26 |
container_issue |
2 |
container_start_page |
148 |
op_container_end_page |
174 |
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