Custom, culture and crime A restorative justice response to culturally motivated crimes in South Africa

South Africa’s 1996 Constitution introduced a dual legal system, recognising African customary law and common law traditions. This article examines how culturally motivated crimes challenge South Africa’s retributive criminal justice system, and explores restorative justice as a more appropriate alt...

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Bibliographic Details
Published in:SA crime quarterly Vol. 2025; no. 74; pp. 13 - 26
Main Author: Matthee, Jacques
Format: Journal Article
Language:English
Published: Pretoria Institute for Security Studies (ISS) 01.01.2025
Institute for Security Studies
Subjects:
Accountability
Common law
Conferencing
Consent
Constitutional law
Constitutions
Court hearings & proceedings
Courts
Crime
Criminal justice
Criminal justice system
Criminal law
Criminal sentences
Cultural sensitivity
Culture
Customary law
Defense
Family group conferences
Healing
Kidnapping
Law
Legal system
Marginality
Mediation
Motivation
Murders & murder attempts
Offenders
Offenses
Principles
Research methodology
Restorative justice
Traditions
Victim-Offender mediation
Witchcraft
Women
South Africa
ISSN:1991-3877, 2413-3108
Online Access:Get full text
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Summary:South Africa’s 1996 Constitution introduced a dual legal system, recognising African customary law and common law traditions. This article examines how culturally motivated crimes challenge South Africa’s retributive criminal justice system, and explores restorative justice as a more appropriate alternative. Using doctrinal research methods, it analyses constitutional provisions, case law, statutory developments and indigenous practices to evaluate how cultural rights can be integrated into criminal law without undermining justice. The findings show that while South African courts have historically marginalised customary law in criminal proceedings, the Constitution provides a framework for greater incorporation of indigenous principles, particularly restorative, participatory processes that emphasise healing and accountability. The article shows that customary justice practices inherently reflect the fundamental principles of restorative justice. Accordingly, it recommends leveraging existing mechanisms such as victim-offender mediation, family group conferencing and restorative circles as culturally responsive alternatives for addressing culturally motivated crimes in South Africa.
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ISSN:1991-3877
2413-3108
DOI:10.17159/sacq.n74.21358