Adoption, abduction, defamation, and the witchcraft suppression Act of 1957: an intercultural void in South African law

Abstract

This research explores the intercultural void within the South African legal system arising from its foundation in Roman-Dutch law, English common law, and African customary law. Despite the constitutional recognition of legal pluralism, the system remains largely dominated by Western legal frameworks, often excluding African indigenous languages, knowledge systems, and traditions. This exclusion contributes to flawed verdicts in cases where African cultural understanding is essential. Using a qualitative research approach grounded in archival research and critical document analysis, the research examines court cases relating to adoption, abduction, defamation, and witchcraft the latter under the Witchcraft Suppression Act 3 of 1957 (WSA). These cases are rich in traditional and cultural nuance, illustrating the gaps in cultural and linguistic comprehension within legal proceedings. The research is framed by theories of legal pluralism and critical discourse analysis, highlighting how language and cultural disconnects in courtroom discourse can result in misinterpretation, misrepresentation, and loss of crucial evidence. A particular focus is placed on the WSA, interrogating its historical context, application, and continued relevance, and advocating for its repeal. Findings underscore the urgent need for linguistic and cultural transformation within the justice system. This includes elevating African languages to equal status alongside English and Afrikaans and reimagining legal education to produce practitioners capable of operating effectively within South Africa’s diverse legal landscape. The research ultimately calls for the integration of forensic linguistics and traditional knowledge systems into the mainstream legal process.