The Battered Woman and South African Law
2. Introduction
2.2 Requirements of the Attack .1 An Attack 188
2.2.2 Requirements of the defence
2.2.2.1 The defensive act must be necessary to avert the attack
The defence employed by the abused woman must be necessary to protect the threatened interest: performing the defensive act must be the only way in which the abused woman can avert the threat to her rights or interests. This is decided on the facts
141) at 184; S v Aleck 1973 (1) PH H7 (R). Where the arrestor has used more force than necessary, it becomes unlawful and may, therefore be resisted. See S v Aleck supra. So too when the arrest itself is unlawful (see R v Hayes supra (n 194); R v Mahomed supra (n 201); R v Jackelson supra (n 201); R v Thomas 1928 EDL 401 (unlawful search). See also chapter 5 at 241 infra.
215Burchell supra (n 29) 237. Although the point did not arise for decision, private defence against an insane person succeeded in R v K supra (n 151). But see how this requirement is dealt with in English law at n 430 infra.
216Burchell supra (n 29) 237. It is true that instances of the use of force to avoid damage to property by animals have been treated as cases of private defence (see R v Staalmeister 1912 EDL 308; R v West 1925 EDL 80; Du Plessis v Van Aswegen 1931 TPD 332; R v Pope supra (n 141); S v Wassenaar 1966 (2) PH H 351 (T); S v Dittmer 1971 (3) SA 296 (SWA)). Strictly speaking, the defence in these cases is that of necessity, provided that the animal concerned is not being used as an instrument to commit harm by the attacker - if so, then it will constitute private defence.
217As per Satchwell J in S v Engelbrecht supra (n 143) at par [344].
of each case.218 The basic idea underlying private defence is that a person is allowed to
“take the law into her own hands”, as it were, only if the ordinary legal remedies do not afford her effective protection. The rationale underlying this defence has been stated as ensuring that “justice should not yield to injustice”.219 As Snyman has submitted, “(t)he defence deals with nothing less than the protection of justice in the circumstances in which the police are unable because of their absence, to perform this task”. For this reason it is essential that the court critically examines the extent to which the “ordinary law of the land” was effective in preventing the precipitating unlawful attacks and freeing the abused from the attacks and their impact.220
The underlying and often unarticulated question is whether an abused woman has a duty to flee the attack(s) rather than defend herself by killing. Snyman argues that there is no duty upon the attacked person to flee because “this is a negation of the whole essence of private defence [which deals]... with the upholding of justice... not a capitulation to injustice”.221 Burchell states that the South African courts seem to adopt the view that, where it is not dangerous to do so, the attacked person should flee.222 However, he submits that “there is no absolute duty to retreat and that the approach of our law ought to be that the question of whether or not the battered woman could or should have retreated is merely one of the issues taken into account when assessing whether the abused woman’s defensive act was allowed by law.” 223
218Burchell supra (n 29) 238; S v Van Wyk supra (n 133) at 497H, 509C-D.
219In respect of the justifications for the existence of private defence see pages 31-32 supra.
220Snyman supra (n 25) 102.
221Snyman supra (n 25) 107.
222Burchell supra (n 29) 238-239.
223Burchell supra (n 29) 239; S v Mguni supra (n 141) at 779. Snyman supra (n 124) 184 n 21 is of the view that it is unclear whether South African case law expects the attacked party to flee in cases where the defender will not be exposed to harm by doing so or jeopardizing another’s interests.
In Engelbrecht 224 Satchwell J was of the view that bearing in mind the “hidden” or
“concealed” nature of domestic violence which is frequently confined to the privacy of the home, she was cautious about requiring the abused woman (and her child(ren) to vacate their home leaving the abusive spouse in full occupation.225 The judge further held
Remarks made by our courts suggest that the defender should flee: R v Zikalala supra (n 151) 571- 572; R v K supra (n 151) at 358H; R v Patel supra (n 201) at 123F; R v Mguni supra (n 141) at 779A; S v Dougherty 2003 (2) SACR 36 (W) at 50. The last-mentioned case provides an example where the line between retaliation and defence had become blurred. At the accused’s birthday party, guests had been seriously injured by unknown assailants outside his home on the night of the party.
The accused held that since he feared for the safety of his guests, he took a firearm and went looking for the assailants. He came across two men whom he questioned concerning the earlier attack, and when they did not respond to his questions he pointed the firearm at them. One of the men, who was unarmed said “you will not use that” and started coming towards the accused, who, according to his evidence, fired “downwards in the direction of the deceased” but the deceased continued coming towards him. The accused then fired in the general direction of the deceased, killing him. The accused raised the defences of private and putative private defence. The court was of the view that in the circumstances he had acted unreasonably in not first aiming a non-fatal shot. The court, however, held that he lacked knowledge of unlawfulness required for murder in that he genuinely thought he was about to be attacked, but convicted him of culpable homicide as his reaction was negligent.
Snyman supra (n 124) is of the view that the court should have upheld the accused’s plea of private defence. This was a classic case of private defence. Had the accused not shot at the deceased, he might have been overpowered and killed by his two attackers. To have expected him to run away would have amounted to expect him to “gamble with his life”. He was outnumbered two to one. He was no longer a young man (he was 63) whereas the two attackers were aged about 25 and 31 years (at 184 n 21). Snyman supra (n 124) at 185 goes on to state: “where the threat is one of personal injury the obvious possible way of avoiding the attack is to flee. Thus if harm can be avoided by flight, the accused should flee”. In respect of the question whether an attacked person is expected to flee in English law see chapter 3 at 116-117 infra; American law chapter 4 at 190-191 infra.
However Burchell supra (n 29) at 245 does not agree with Snyman infra: “One cannot help wondering whether the accused was to some extent author of his own predicament by assuming the role of the police and searching for the culprits after the initial assault had already taken place. He could easily have alerted the police to the assault - leaving it to them to apprehend the wrongdoers.
There would seem to be an element of retaliation about the accused’s conduct in Dougherty supra and perhaps a conviction of culpable homicide was the most pragmatic solution of those facts. What if the persons the accused had confronted had not been part of the original assault? Surely they could have defended themselves legitimately against his pointing a loaded gun at them? To regard his conduct as lawful, as Snyman does, would lead to the anomaly that they could not defend themselves against the accused’s attack. Where X and Y agree to engage in an unlawful fight (such as a duel) the combatants cannot invoke private defence to escape liability for the harm inflicted one upon the other, since their agreement cannot render the fight lawful”.
224S v Engelbrecht supra (n 143).
225Ibid at par [354]. See further Lavallee v The Queen supra (n 153) 97: “(t)raditional self-defence doctrine does not require a person to retreat from her home instead of defending herself: a man’s home may be his castle but it is also the woman’s home even if it seems to her more like a prison in the circumstances.” In the case of Engelbrecht supra (n 143) Judge Satchwell held that domestic violence was mainly enacted in a ritualistic form by Mr. Engelbrecht in two places which Mrs.
Engelbrecht could call her own: her home and her place of work. Everyone’s home should be their castle and it was here that Mrs. Engelbrecht should have had a place of rest and a place to bring up her daughter. The deceased destroyed any possibility of peace in the flat they shared or where Mrs.
Engelbrecht sought independent refuge from him as well as her place of work in the hospital where she had status as an individual and professional person quite independently of him. In this context, Judge Satchwell was of the view that it would be invidious for any court to expect Mrs. Engelbrecht to flee by leaving her home and abandoning her place of employment. Not only was this impractical and unfairly onerous upon her in the view of the court, but it failed to acknowledge who is the
that flight may be thought to encompass efforts made, not only to leave the home but also to approach State authorities such as the South African Police Service, the family violence courts, shelters, family and friends and so forth. The response to the unarticulated question as to why, if the violence was so intolerable, the abused woman did not leave her abuser long ago, should be that this question does not go to whether or not she had an alternative to killing the deceased at the critical moment. Nevertheless, as was stated in Lavallee,226 to the extent that her failure to leave the abusive relationship earlier may be used in support of the proposition that she was free to leave at the final moment, expert evidence can provide useful insights.227
Satchwell J was further of the view that the court must, in this context, be extremely cautious in seeking to rely upon examination of the efforts taken by an abused woman to extricate herself from the abusive situation or to escape the abusive spouse or partner.
Judgment should not be passed on the fact that the battered woman stayed in the abusive relationship. Still less is the court entitled to conclude that she forfeited her right to private defence for having so done.228
perpetrator of the wrongdoing and who deserved to be removed from those places and from society (at par [400]-[401].
226Lavallee v The Queen supra (n 153) 96.
227S v Engelbrecht supra (n 143) at par [355].
228S v Engelbrecht supra (n 143) at par [356]. While it is true that the right to act in private defence is subsidiary in nature, it takes effect only where the state is not there to protect a particular person.
Thus where help is available from the State in the form of the SAPS, to protect a person, such a person should not, simply proceed to act in private defence. It would have been another matter if the SAPS did not perform their duties. The crux of the case in Engelbrecht supra (n 143) was whether Mrs. Engelbrecht gave the legal system and the SAPS a fair chance of helping her. The majority of the court was of the view that she did not.
There must be a certain balance between the attack and the defence.229 The limits of private defence are difficult to describe with any degree of precision since everything depends on the particular circumstances of the case. The approach to be favoured 230 which was adopted by the court in S v Van Wyk 231 is whether the defender acted reasonably when he defended himself or his property. Put another way, the court will look at what may reasonably be expected of the attacked party in the circumstances of each case:
“This test allows the court to assess the defence in the context of factors such as the nature of the attack, the interest threatened, the relationship of the parties, their respective age, sex, size and strength, the location of the incident, the nature of the means used in the defence, the result of the defence.” 232
229As Snyman supra (n 124) at 189 notes: “The upholding-of-justice principle plays an important role in the rule that there must be a reasonable relationship between the attack and the defensive act - that is, the requirement of proportionality in private defence. The harm occasioned by the defensive action must be proportional to the legal interests of the defender that are endangered and that are being protected by him or her”. But as Snyman goes on to note at 189-190: “If one accepts the individual- protection theory as the only basis for private defence, it may be argued that the defending party may fend off imminent infringement of his or her rights without the defensive action necessarily being restricted in any way”. However, Snyman supra (n 124) at 190 goes on to conclude: “The legal order does not tolerate a gross disproportion between the interest protected by the defender and the interest he or she is attacking…. Disregard of the requirement of proportionality leads to law abuse - that is, disregard of the upholding-of-justice principle underlying the right to private defence”. In respect of whether there is a requirement of proportionality between the attack and defence in English law see chapter 3 at 157-159 infra; American law see chapter 4 at 200 infra.
230South African law had previously evolved a version of proportionality: whether the means used was commensurate with the danger. The problem with the proportionality rule, however, lies in determining between which two elements this “certain balance” must exist. For example must the balance between the interest the defender is trying to protect and the interest he harms; or must a balance exist between the attacker’s and defender’s weapons? See Snyman supra (n 25) 109-110.
231S v Van Wyk supra (n 133). Steyn CJ held: “It must be conceded, in my view, that such a balancing is not acceptable as a general yardstick. Generally, as regards private defence, the interests of the attacker and the victim are seldom similar or equivalent. It is true that a slap cannot without more justify killing, but the avoidance of a serious non -deadly wound... can be balanced against the life of the attacker; and how does one measure the dignity or bodily integrity of a woman who has been raped against the life of the rapist? Proportionality will not do as a general basis for private defence.
One who invades another’s rights, who defiantly ignores the prohibition, warning and resistance of the defender so that he can only be prevented by the most extreme measures, can with good reason be seen as the author of his own misfortune. It is he who is the outlaw, and he is prepared to risk death in violating another’s rights, why should the defender, who is unquestionably entitled to protect his rights, be viewed as the one reacting unlawfully if he uses deadly force rather than sacrifice his rights?” (at par [49] own translation).
232Burchell supra (n 29) 241. Most of these factors are mentioned in S v Trainor 2003 (1) SACR 35 (SCA) at 41-42, where it is acknowledged that there is a difficulty in determining the relevant factors. See also R v N’Thauling 1943 AD 649 at 654; R v Ndara supra (n 141) 184; S v Marert
When considering the proportionality between attack and defence, note should be taken of the surrounding circumstances, such as relative strength of the parties concerned, their gender, their age, the means they have at their disposal, the nature of the threat, the value of the interest that is threatened, and the persistence of the attack.233 No precise proportionality is required.234
In addition to the factors mentioned above, the court in Engelbrecht 235 took into account factors which were relevant to the situation of the accused and which could be used to show that her actions were reasonable in light of her circumstances.236 While these factors noted by the court suggested that proportionality between the attack and defensive action on her part had played an important role, the assessors in the Engelbrecht 237 case chose to emphasize help-channels which they felt Mrs.
Engelbrecht had not utilized sufficiently,238 thus undermining the court’s previous statements.239 However, had the court applied the coercive-control model, it would
1967 (1) PH H167 (A). Although the approach in South African law has involved a version of the proportionality principle, namely whether the means used were commensurate with the danger apprehended (R v Jack Bob supra (n 151); R v Zikalala supra (n 151)); some cases have favoured the test of reasonableness (see S v Ntuli supra (n 141) at 436D, 436E; S v Motleleni supra (n 140) at 406).
233Snyman supra (n 124) 190. See also S v Van Wyk supra (n 138) at 496-497; S v Trainor supra (n 232) 41-42.
234As Snyman supra (n 124) at 190 notes: “it need only be approximate proportionality”. In S v Van Wyk supra (n 138) Steyn CJ held “Unlawful recompense does not serve as a fixed basis for self- defence” (at 497B) (own translation). See also S v Ntuli supra (n 141) at 437E: “The court adopts a robust approach, not seeking to measure with nice intellectual calipers the precise bounds of legitimate self-defence.”
235S v Engelbrecht supra (n 143).
236For a description of the factors taken into account see 42 above.
237S v Engelbrecht supra (n 143).
238Ibid at par [418] and [448] at 151B-C and 157E-F.
239Namely that proportionality between the attack and defence was important. See further the factors to be taken into account in determining such proportionality in respect of the abused woman in Engelbrecht supra (n 143) at 58.
become clear that she did not leave because the abuser controlled every aspect of her including the extent to which she obtained help and what would happen if she did.240