Don’t curse in the public square
Whether in folk-lore, fiction or fact, Witches are and will forever be associated with ‘the curse’. The standard dictionary definition of ‘a Witch’ remains “a woman or man thought to have magic powers, especially evil ones”.
Actual Witches will define Witchcraft as both a belief system and as clearly identified magical practices. These practices include, amongst many others, divinations, spells, incantations, and ritual acts. And whilst cursing is not, and I would argue, has never been centrally definitive of what a Witch is or does, cursing and hexing are not excluded from the practice of modern Witchcraft.
In this article I attempt to answer three questions.
How should Witches navigate the legal norms of our society which generally require that citizens not harm one another, with our right to practice Witchcraft?
Does the Constitutional right to freedom of religion and belief include the right to practice magical rituals designed to curse others, whether to protect an innocent from harm or to avenge a wrong?
Does the law expressly prohibit the practice of malevolent harmful magic?
Customary and Colonial law
South African law has a long and troubled relationship with witchcraft.
In “One Person’s Culture is another Person’s Crime: A Cultural Defence in South African law?”, JL Matthee begins his thesis by quoting a statement made by North-West University Professor Christa Rautenbach (a former prosecutor with the Department of Justice) with reference to customary cultural and religious practices, and the test of Constitutionality.
“If there are rituals performed that do not pass the test of constitutionality, they should not prevail merely because they are part of a religion or culture. Neither should the followers of a religious or cultural belief regard themselves as outside the law merely because they have a constitutional right to practise their religion or culture together with other members of their religious or cultural community.” Prof Christa Rautenbach
Matthee explores the historical conflict between African Customary law and South African common and criminal law, on the subject of the indigenous belief in witchcraft. Indigenous beliefs and customs concerning witchcraft have often resulted in the commission of crimes that infringe on fundamental human rights. South African case law dealing with indigenous beliefs and customs demonstrate that our criminal courts have generally been unwilling to accept arguments of indigenous beliefs and customs in witchcraft, as a defence for the commission of common law or statutory crimes.
Prior to the introduction of Roman-Dutch common law in South Africa, customary Traditional courts had already developed several quasi-legal mechanisms with which to deal with accusations of witchcraft. The practice of witchcraft was often punished by death, conflicts blamed on witchcraft were mediated, persons were compensated for false accusations of witchcraft brought against them, and husbands were granted divorces when their wives were pointed out as witches by diviners.
It is important to note here that in customary indigenous culture, religion and law, Witchcraft was not recognised as a valid belief system or religion to which people might voluntarily ascribe, and consequently anyone suspected or accused of being a witch was condemned to suffer the prejudice of judgement and punishment if found guilty.
Dutch administration of justice in South Africa refused to entertain charges of witchcraft, and the practice of witchcraft was not punished by Magistrates. Under English law, accusing someone of witchcraft was treated as a serious offence, and those who killed alleged witches were tried for murder.
English statutes banning witchdoctors and witchcraft accusations were first passed in the “native territories” annexed to the Cape Colony in 1879. The earliest legislation targeting witchcraft beliefs include the Cape of Good Hope Act 24 of 1886, the Black Territories’ Penal Code Chapter XI Act 2 of 1895, The Witchcraft Suppression Act of 1895, the Natal Law 19 of 1891, and the Transvaal Ordinance 26 of 1904.
In “Cultural Denial: What South Africa’s Treatment of Witchcraft Says for the Future of Its Customary Law”, Hallie Ludsin demonstrates that with the enactment of the Witchcraft Suppression Act in 1957, which unified existing colonial laws, customary law regarding witchcraft was effectively outlawed, even if still practiced covertly. The Witchcraft Suppression Act 3 of 1957 not only made it an offense to accuse someone of witchcraft, but also made it an offence to pretend to profess a knowledge of witchcraft.
Ludsin remarks “For over a century, South African governments have made every effort to suppress witchcraft belief through legislation. To the colonial and white South African state courts, it was impossible to convict a person of witchcraft when there was no empirical link between the alleged witchcraft and the harm.”
The Witchcraft Suppression Act
Section 1(a) of the Witchcraft Suppression Act prohibits and punishes accusations of witchcraft made against individuals. Section 1(b) criminalises diviners or traditional healers who ‘smell out’ witches, and section 1(c) criminalizes the hiring of diviners or traditional healers to find a witch.
Of special relevance to modern Witches, section 1 (d) of the Act makes it illegal for anyone to professes a knowledge of witchcraft or the use of charms, and to advise any person how to bewitch, injure or damage any person or thing, or to supply any person with any pretended means of witchcraft. Section 1 (e) prohibits any “pretended knowledge of witchcraft” to “put into operation any means or process which, in accordance with such advice or his own belief, is calculated to injure or damage any person or thing”. Section 1 (f) of the Act prohibits anyone from using “any supernatural power, witchcraft, sorcery, enchantment or conjuration”, or to pretend “from his skill in or knowledge of any occult science to discover where and in what manner anything supposed to have been stolen or lost may be found”, for gain.
The 1957 Act still makes it illegal for any person to identify as a Witch, to profess a knowledge of witchcraft, and to advise any person how to bewitch, injure or damage any person or thing.
In 2016 the South African Law Reform Commission confirmed, in its 19 January 2016 Issue Paper on the review of the Witchcraft Suppression Act, that the Act’s prohibition against identifying as a witch and against professing knowledge of witchcraft is unconstitutional, and b) the Act’s prohibition of engaging in divination is unconstitutional.
In terms of Constitutional law, any existing customary law, common law or legislation inconsistent with the Constitution must be amended, to the extent of its unconstitutionality, or repealed. This is the ‘test of Constitutionality’.
The South African Constitution protects the right to freedom of religion, belief and association.
Note. The South African Law Reform Commission failed however to implicitly find the existing prohibition against the practice of malevolent harmful magic unconstitutional.
The Constitutional right to freedom of religion and belief does not therefore protect any right to practice magical rituals designed to curse others, whether to protect an innocent from harm, or to avenge a wrong. The Witchcraft Suppression Act expressly prohibits the practice of harmful magic intended to curse another.
South African Case law and professing knowledge of witchcraft
South African courts, when dealing with charges for professing knowledge of witchcraft, have historically avoided giving any credence to any claim of actually being a Witch. The Witchcraft Suppression Act prosecutes “pretended” witchcraft as fraud, and not as a harmful act.
In S v. Patel 1973 (2) SA 208 (Northern Cape), the complainant paid the defendant to help protect her house. The defendant sold her a rabbit’s foot, and was subsequently charged with professing knowledge of witchcraft.
The court found the sale of the charm insufficient evidence of professing such knowledge. The court differentiated between professing knowledge of witchcraft aimed at bewitching someone, and attempts to undo “a purported prior magicking“.
The court changed the charge from a violation of the Witchcraft Suppression Act, to one of fraud, because the accused pretended, for payment, that he could undo the curse on the complainant’s family.
In S v. Dlamini 1973 (3) SA 629 (Natal Provincial Division), a priest in the Zionist Church was charged with professing knowledge of witchcraft. During a religious ceremony, the priest used stones and objects that were alleged to have supernatural powers. The court refused to convict the priest on the grounds that religious leaders were expected to have a relationship with God that may involve supernatural powers.
In its judgement the court held, “However strange the ceremonies of the Zionist Church might seem to people outside the Church, it is clear that there is no question of witchcraft involved here. The accused professed a knowledge of God, and this seems prima facie to exclude a profession on his part of a knowledge of witchcraft. Nor does the use of symbolic objects or belief in the efficacy thereof constitute witchcraft. The pilgrim to Lourdes believes in the ‘supernatural’ quality of the waters of the grotto. Moreover, many shrines and even cathedrals housing relics would be unattended by pilgrims seeking divine assistance where the ‘supernatural’ objects of belief and intercession to be dismissed as no more than the tools of witchcraft.” The court ruled that the state had failed to meet the burden of proof that the priest professed knowledge of witchcraft.
In both the Patel and Dlamini cases, the courts made a clear distinction between using alleged supernatural powers to bewitch someone, pretending to use supernatural powers to undo a curse, and relying on belief in the efficacy of supernatural powers in religious worship.
Case law indicates that whilst our courts find it lawful to rely on a belief in supernatural powers, it is unlawful to use those powers to bewitch another, and it is unlawful to pretend to use those powers to aid someone for financial gain.
Protection from Harassment Act and Domestic Violence Act
Apart from the Witchcraft Suppression Act’s prohibition against the use of witchcraft to cause harm, and the pretended use of witchcraft to commit fraud for financial gain, two other pieces of legislation may prohibit the use of witchcraft to curse.
The Protection from Harassment Act prohibits directly or indirectly engaging in any conduct that causes harm or inspires the reasonable belief that harm may be caused to the complainant.
The Domestic Violence Act prohibits emotional, verbal and psychological abuse, intimidation and harassment. The Act defines “intimidation” as “uttering or conveying a threat, or causing a complainant to receive a threat, which induces fear”.
Despite the Witchcraft Suppression Act’s prohibition against both identifying as a Witch and professing to have knowledge of Witchcraft, the South African Law Reform Commission has identified that such prohibition is inconsistent with the fundamental human rights to identity, religion and belief.
What is not at issue here is the Constitutional right of Witches to identify as Witches and to profess to have knowledge of Witchcraft.
The Constitutional rights to freedom of identity, religion and belief do not however extend to the practice of witchcraft, or threats of witchcraft, to cause harm to others.
The law expressly prohibits the practice of magic in such a way as to cause harm, or to harass another in such a way as to inspire the reasonable belief that harm may be caused, or to utter or convey a threat which might induce a fear of being harmed through the use of witchcraft.
Damon Leff – SAPRA