The Battered Woman and South African Law
2. Introduction
2.5 Conclusion
One of the justification grounds excluding unlawfulness is that of self-defence. It is an extraordinary measure which permits the victim of an unlawful attack to take the law into her own hands where there are no other reasonable options available to her at the time of the attack but to act on her own initiative in order to avert or minimize the danger faced. For self-defence to be successfully raised, certain conditions need to be met in relation to both the attack, and the defensive measures taken. Of relevance is the requirement that the threat must be imminent or must have commenced. Therefore, an individual may not respond to an attack once it has ceased nor may one defend oneself in anticipation of being attacked at some future point. In terms of South African law, a battered woman who is being attacked by her abuser may defend herself against such an attack using any reasonable means necessary. The problem with this requirement is that in most cases abused women often defend themselves after the attack was
460Snyman supra (n 25) 168.
461S v Eadie supra (n 360) at par [43].
462Snyman supra (n 25) 168.
463Ibid (own emphasis).
completed against her.464 This conduct opens itself up to being construed as an act of vengeance. Another difficult hurdle that a battered woman faces in self-defence claims relate to the objective components of the defence i.e. the reasonableness of the accused’s conduct is judged from the perspective of a reasonable person in the same circumstances. 465
The enquiry into reasonableness in the context of unlawfulness can accommodate only the generic facts or the physical act, assessed in terms of the constitutional rights, where the “reasonable man” test has become increasingly subjectivized to take into account a number of the personal characteristics of the accused. While it is important to accept the need for flexibility in the area of the justification ground, 466 and although this makes objectivity more elusive, it is clear that there needs to be some sort of limit. This is one of the important questions which needs to be addressed in respect of battered women and self-defence: whether the limits of the objective test have been exceeded by taking her personal circumstances into account.467
By taking such subjective factors into account, it has placed more emphasis on battered women relying on putative self-defence. In terms of current South African law, if a battered woman is not able to successfully plead self-defence due to the fact that the court found that her conduct was unlawful, objectively assessed,468 then she may be
464Flack supra (n 97) 81.
465Ibid.
466Reddi supra (n 1) 270.
467Reddi supra (n 1) 269.
468S v De Oliviera supra (n 141).
acquitted on the basis of putative private defence, which is subjectively assessed.469 In S v De Oliviera 470 it was held that such a defence will be of assistance to an accused
“who honestly believes his life…[is] in danger, but objectively viewed [it is] not.” 471
This raises two points. Firstly, the issue here relates not to lawfulness but culpability.472 Secondly, if the abused woman does not have the requisite intention to commit murder, she will be acquitted. However, as Reddi notes, the abused woman will not necessarily escape liability but could be convicted on the basis of culpable homicide. This is because negligence not intention is the fault element required in this case. Evidence of the “cyclical nature of the abuse” 473 as well as the woman’s failed attempts at leaving her abuser would be highly relevant to inform putative self-defence.474
In respect of provocation, Roman and Roman-Dutch law did not regard anger, jealousy or other emotions as an excuse for criminal conduct, but only as a factor which might mitigate sentence, if the anger was justified by provocation. South African law with its parent system in Roman-Dutch law might have followed this lead had it not been for the introduction of the mandatory death penalty for murder in 1917.475 In 1925 as a result of the Transkeian Penal Code 1887, it envisaged a type of partial excuse: even if killing was intentional, homicide which would otherwise be murder maybe reduced to
469Ibid at 163I-J.
470S v De Oliviera supra (n 141).
471Ibid at 163I-J.
472Ibid.
473Reddi supra (n 1) 275.
474See n 161.
475Burchell supra (n 29) 427.
culpable homicide.476 The test for provocation was thus objective.477 By 1949 it was held that provocation was not a defence but a special kind of material from which in association with the rest of the evidence the court should decide whether the accused had acted involuntary or without intent to kill. This introduced a subjective test for provocation.478 But a number of crucial issues remained unresolved; could intense provocation or emotional stress serve to exclude criminal capacity or voluntary conduct. After the decision in Chretien,479 the question arose, if severe intoxication could exclude those basic elements of liability then could it not also exclude provocation or emotional stress. At this point, the notion of criminal capacity came to the fore. This notion was unknown in South African common law and was adopted from Continental Legal systems, specifically Germany.
This notion took hold with the Rumpff Commission of Inquiry into the Responsibility of Deranged Persons and Related Matters, the recommendations of which gave rise to the provision of section 78 (1) of the Criminal Procedure Act.480 S v Mahlinza 481 set out that the criminal capacity of an actor is essential requirement necessary to establish criminal liability.
Criminal capacity consists of a cognitive component i.e. ability to distinguish between right and wrong and conative capacity i.e. the ability to act in accordance with the
476Ibid.
477See 59-60.
478R v Thibani supra (n 258) at 731.
479S v Chretien supra (n 97).
480Act 51 of 1977.
481S v Mahlinza supra (n 289).
distinction. If either was lacking no liability would ensue.482 In S v Van Vuuren, 483 the court expressed in unequivocal terms that the accused could not be held liable where the failure to comprehend what he is doing is attributable to a combination of factors such as provocation or emotional stress.484
The very idea of allowing provocation to function as a defence excluding an accused’s criminal liability is inherently controversial. From a moral and ethical perspective people are expected to control themselves, even under provocation or emotional stress.485 To allow it to function as a complete defence as opposed to mitigating factor means that it gives credence to the belief that retaliation is justified in the eyes of the law and this is the very thing criminal law guards against. Despite the well established nature of the defence of non-pathological incapacity, the law has been thrown into flux not only the Supreme Court of Appeal decision of S v Eadie 486 and S v Marx.487 The Eadie 488 case constituted a serious erosion of the notion of criminal capacity, with a concomitant “ripple effect” on other topics within the general principles of criminal law.489 The question this case has highlighted is whether the boundaries of the defence have been inappropriately extended.490 This is so since the court held not only that there
482Ibid at 414G-H.
483S v Van Vuuren supra (n 26).
484Ibid at 17G-H.
485S v Eadie supra (n 360) at par [60].
486S v Eadie supra (n 360).
487S v Marx supra (n 108).
488S v Eadie supra (n 360).
489Snyman supra (n 106) 22.
490S v Eadie supra (n 355) at par [3].
is no distinction between the defence of automatism and non-pathological incapacity,491 and that it would have to be established that the accused acted involuntarily in order for her defence of lack of capacity to prevail,492 but furthermore held that the court should assess the accused persons evidence about his state of mind by weighing it against his actions and surrounding circumstances, thereby introducing an objective test into capacity, which is otherwise subjectively assessed. 493
Should non-pathological incapacity be equated with automatism, established precedent and other cases of non-pathological incapacity would have to be revised by implication, and this would have serious implications for the principle of legality and thereby restrict the scope of the defence for battered woman.494
491S v Eadie supra (n 360) at par [57].
492Ibid.
493S v Eadie supra (n 360) at par [64].
494Burchell supra (n 396) 31.
CHAPTER 3
THE BATTERED WOMAN AND ENGLISH LAW