BELIEF IN WITCHCRAFT AS A MITIGATING FACTOR IN SENTENCING S v Latha 2012 (2) SACR 30 (ECG)

Shannon Hoctor Shannon Hoctor

doi:10.17159/obiter.v33i2.12165

Abstract

Supernatural belief does not sit easily with the law. Squaring such belief with legal concepts such as the reasonable person is a particularly vexing task. Nevertheless, it is necessary for the courts to take account of such belief as a fact of the South African society. Belief in witchcraft is an ongoing and widespread phenomenon, giving rise to the question whether such belief can play a role in exculpating, or mitigating the punishment of those who engage in criminal conduct as a consequence of such belief. A recurring problem for the courts is how to deal with the situation where a genuine belief in witchcraft provides the motivation for the killing of a suspected witch or wizard in order to protect or defend the interests of the accused or another person. Can such a belief mitigate punishment? This problem arose in the case of S v Latha (2012 (2) SACR 30 (ECG)).

Highlights

Supernatural belief does not sit with the law
It is necessary for the courts to take account of such belief as a fact of the South African society
Belief in witchcraft is an ongoing and widespread phenomenon, giving rise to the question whether such belief can play a role in exculpating, or mitigating the punishment of those who engage in criminal conduct as a consequence of such belief

Summary

Introduction

Supernatural belief does not sit with the law. Squaring such belief with legal concepts such as the reasonable person is a vexing task (see S v Ngema 1992 (2) SACR 651 (D)). Legally, does in some measure palliate the horror of the crime and provide an extenuating circumstance” This begs the question as to the extent to which a belief in witchcraft should be regarded as a mitigating factor in sentencing, most commonly in the context of the physical injury or death of the person suspected of practising witchcraft. The court found such genuine belief in witchcraft to “in some measure palliate the horror of the crime” and provide an extenuating circumstance (312) This approach was approved by Schreiner J (as he was) in R v Hugo (1940 WLD 285 288) ( citing R v Mutkisub 1938 SWA 4 as an analogous case), as well as in R v Molehane (supra 71). Schreiner JA cautions against the possible abuse of the recognition of a belief in witchcraft as an extenuating circumstance in murder (820)

Developments subsequent to Fundakubi

Concluding remarks