S v Mafunisa

• Jurisdiction: South Africa
• Judge: Klopper ACJ and Van Der Spuy AJ
• Judgment Date: 24 March 1986
• Citation: 1986 (3) SA 495 (V)
• Hearing Date: 24 March 1986
• Court: Venda Supreme Court

Van der Spuy AJ:

This case came before me on review and raises C the interesting question whether, if it is clear that a difference in dictionary meaning occurs between a male concept and a female concept and the Act, which is the subject-matter of a charge, refers only to the male gender, the female is included by necessary inference based upon the rule of our law that the masculine gender, in the absence of indications to the contrary, includes the feminine gender.

D The accused was charged with a contravention of s 1 (a) of Act 3 of 1957 ie The Witchcraft Suppression Act. Although the magistrate found the accused guilty of indicating and imputing another person as a witch, it is clear that for purposes of that section, what he should have been charged with, and should E have been found guilty of, is indicating a person as a wizard.

The relevant Act is the Witchcraft Suppression Act 3 of 1957 and s 1 (a) provides that any person who:

"imputes to any other person the causing, by supernatural means, of any disease in or injury or damage to any person or thing, or who names or indicates any other person as a wizard... shall be guilty of an offence..."

F For purposes of this judgment the sentence that was passed, namely six months' imprisonment, is not relevant as it appears on all the facts and having regard to the purpose of the Act, namely to suppress witchcraft, not to be excessive. The question which I posed both to the learned magistrate and to G the Attorney-General is whether, in view of the dictionary meanings of the concept "wizard" and "witch", one can here apply the rule of interpretation that the male gender includes the female gender. The question arises because of the differing and significantly differing definitions given. In the latest available edition of the Shorter Oxford English Dictionary it H is stated that the word "wizard" derives from late Middle English and it means firstly a philosopher or a sage. Secondly, a man who is skilled in the occult arts; in later use, a man who practises witchcraft (1550) and a man who "does wonders" in his profession; in recent use often trivially applied to an expert (1620). One thinks here of a financial wizard. Then, a I witch-doctor or medicine-man (1845). No doubt that was the intended objects of Act 3 of 1957.

According to the Oxford English Dictionary therefore, and the way in which the Act obviously intends the word "wizard" to be used, it is a person who practises witchcraft, ie a witch-doctor or a medicine-man. That would have been in order for the presumption to operate that the male gender includes the female gender, were it not for the significantly different definition given to a "witch". A "witch" is rendered by the J same source in the first place as a female magician or sorceress, and in later use,

Van...