The Battered Woman and South African Law
2. Introduction
2.1 Self-defence
2.1.1 Development of the defence
Private defence is the civilized remnant of the ancient system of private vengeance as a redress for wrong done. The Romans, in permitting self-help formulated the principle
“moderatio inculpatae” (moderation in self-defence) which the European jurists later relied upon to develop a coherent doctrine of private defence. Therefore, persons who, as a result of private defence, caused harm to another did not incur criminal liability if they had observed the principle of moderation.109
Private defence was treated in a casuistic fashion by Roman-Dutch writers. It was only considered in relation to certain crimes such as homicide, assault, theft and malicious damage to property. Scholars began to expound private defence only at the beginning of the seventeenth century as a general defence relating to all crimes. Coherent statements of the elements of the defence only emerged in 1932.110
109Code 841; cited in Burchell supra (n 29) 232.
110Steyn “Noodweer” (1932) South African Law Journal 462. Burchell supra (n 29) at 233 notes that writers such as Gardiner and Lansdown South African Criminal Law and Procedure (2nd ed) (1921) Vol I at 63-64; and Vol II at 1005-1009 followed the casuistic model of the Roman- Dutch writers, hardly mentioning “self-defence” as a general defence, reserving comprehensive discussion of the topic to the exposition of the law of justifiable homicide.
Jurists such as Steyn 111 were concerned with determining the bounds of moderation.
According to him, this was to be tested according to the criteria of tempus (time), modus (method) and causa (cause). Steyn was of the view that the attack must have
commenced and that the defence should have occurred at the time of the attack and not subsequently as retaliation (ad defensionem, non ad vindictam).112 For this reason the means used to repel the attack had to be proportionate.113 Jurists held that where possible the victim of the unlawful attack should retreat rather than resort to force to defend himself.114
Finally the defence had to be in respect of a recognized interest. While some jurists restricted the scope of private defence to the protection of life and chastity; others extended the protection to include property 115 and honour.116
111Steyn supra (n 110) 462. See also Van Warmelo “Noodweer” (1967) Acta Juridica 5.
112Steyn (n 110) at 470: “Self-defence cannot be relied on when the attack has already been completed or where the attack is to occur in the future. In respect of an attack which is yet to occur, only rules relating to protection are allowed. Defence against an already completed attack is revenge and falls outside the parameters of self-defence.” (own translation)
113Steyn (n 110) at 471: “There must be a measure of proportionality in respect of the attack and the defence. The requirement of proportionality must have a bearing only on the nature and means of the attack and the defence. The question to be answered in each case is whether the means used to avert the attack under the circumstances was necessary.” Steyn at 471-472 goes on to state: “Notice should be taken of: (i) the time and place of the attack, (ii) the weapons or means used for the defence, (iii) the environment in which the attack took place and (iv) the relative strengths of the attacker and the defender”. See also Van Warmelo supra (n 111) at 22: “The reaction must have been the only reasonable means to protect themselves. The attack must have occurred immediately and must be linked to the defence, therefore it must have been imminent. The attack must have been unexpected, and the means used to defend themselves must not be out of proportion to the attack” (own translation).
114See also Van Warmelo supra (n 111) at 22. This requirement was authoritatively stated by jurists such as Morkel and Verschoor “Oor die ‘bedoeling om te verdedig’ by noodweer” (1981) Tydskrif vir Regswetenskap 73.
115Steyn supra (n 110) 466.
116Ibid; Labuschagne “Noodweer ten aansien van nie-fisiese persoonlikheidsgoedere” (1975) De Jure 59.
The structure of the South African law of homicide has been derived from two traditions.
Roman law (and less obviously Roman-Dutch law) is structured on the premise that only intentional killing is unlawful. On this basis the distinction between dolus and culpa is important since it distinguishes murder from other types of homicide. In respect of this approach, culpable homicide is not a lesser form of murder but constitutes a distinct crime with a separate basis of liability. English common law had as a premise the proposition that all homicides, whether intentional or unintentional, negligent or accidental, were unlawful. This approach only attached small significance to the distinction between dolus and culpa since such a distinction did not express the differences in English law between murder and manslaughter. For this reason English law saw no inherent objection to the premise that murder could be reduced to manslaughter regardless of whether X acted with dolus or culpa, since manslaughter is merely mitigated murder.117 South African law after a lengthy flirtation with the English structure 118 has now firmly opted for the Romanistic form.119
Certain types of intentional killing are no longer regarded as unlawful and therefore are not punished as murder. South Africa recognizes that killing in self-defence is justifiable and therefore not murder.120
Burchell offers the following definition of private defence:
117Milton South African Criminal Law and Procedure Common-Law Crimes Vol II 3rd ed (1996) 311.
118Milton supra (n 117) 312. In the form of the “partial excuse” cases which allowed murder to be reduced to culpable homicide.
119Milton supra (n 117) 312. By rejecting the position that dolus could constitute the mens rea of culpable homicide.
120Milton supra (n 117) 312.
“A person who is the victim of an unlawful attack upon person, property or other recognized legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the course of such private defence is not unlawful.” 121
Burchell has noted that two important and yet somewhat conflicting themes shape the structure of the law of private defence. One is that private defence involves a choice between two evils, and that in choosing, the lesser evil is to be preferred. The evils are set out as follows. First, the harm threatened by an attack upon the interests of an individual.
Secondly, harm perpetrated against the legal interest of the attacker, in the process of repelling the attack. The doctrine of the lesser evil requires that the defender should not inflict greater harm than that threatened by the initial attack. As Burchell notes “the central organizing principle of this approach is thus the comparative assessment of the harms involved”.122
The opposing approach is one which justifies private defence using the concept of the autonomous individual. The theory underlying this approach is that every person has the right to protect her legal interests and is under no obligation to surrender these rights in order to avoid inflicting some evil on another person. According to this approach an individual who chooses to infringe the rights of another individual is the author of the harm that she suffers in the course of a defensive response to her attack.123
121Burchell supra (n 29) 230, who goes on to state at note 2: “This description refers to the fact that the citizen has been unable to rely upon the agencies of the state (the police and the courts) to protect his legal interest, and has been compelled to take the law into his own hands to defend his interests privately”. Furthermore, the term private defence is to be preferred to that of self-defence because the latter implies that the only issue is the defence of the physical self or person but the defence is in actual fact also available for the protection of other persons and interests such as property, chastity and liberty.
122 As Burchell supra (n 29) at 231 submits, the choice of evils doctrine also gives rise to the requirement that the person who is attacked should retreat, avoid or flee from the attack before resorting to force, since flight is the lesser evil. For an exposition of the various rationales used to explain the justification for defensive killings see chapter 5 at 231-238 infra.
123See further Burchell supra (n 29) 231: “This being so, there is no obligation on the person attacked to retreat in order to avoid the attack, nor is there a restriction upon means used to protect life or property”.
Snyman refers to two justifications for the existence of private defence. The protection theory emphasizes the individual and her right to defend herself against an unlawful attack.124 Secondly, in respect of the upholding of justice theory, people acting in private defence perform acts whereby they assist in upholding the legal regime. Private defence is meant to prevent justice from yielding to injustice.125 These acts are now subject to the Constitution. 126
Private defence forms part of South African common law. The courts are guided by the Constitution as to which approach is to be followed when a common-law principle, rule or doctrine appears to be in conflict with the Constitution. Section 39(2) 127 provides:
“when interpreting any legislation and developing the common-law or customary law, every court, tribunal or forum must promote the spirit, purport and, objects of the Bill of Rights”. This essentially means that the common law must be “adapted or corrected, where applicable, to reflect constitutional values”.128 Van Dijkhorst J gave the following summary of the meaning of the section:
“Section 35 (3) [now 39 (2)] is intended to permeate our judicial approach to interpretation of statutes and the
124Snyman “The two reasons for the existence of private defence and their effect on the rules relating to the defence in South Africa” (2004) South African Journal of Criminal Justice 178 at 180.
125Snyman supra (n 124) 180-181.
126Constitution of Republic of South Africa 1996. As was held in S v Walters 2002 (7) BCLR 663 (CC):
“Self-defence is treated in our law as a species of private defence...Until now, our law has allowed killing in defence of life, but also has allowed killing in defence of property, or other legitimate interests, in circumstances in which it is reasonable and necessary to do so...What is material is that the law applies a proportionality test, weighing the interest protected against the interest of the wrongdoer. The interests must now be weighed in light of the Constitution” (at par [53] n 66).
127Constitution of Republic of South Africa 1996.
128Ally and Viljoen “Homicide in defence of property in an age of constitutionalism” (2003) South African Journal of Criminal Justice 121 at 129-130. See section 1 of Constitution of Republic of South Africa 1996.
development of the common law with the fragrance of the values in which the Constitution is anchored. This means that whenever there is room for interpretation or development of our virile system of law that is to be the point of departure. When in future the unruly horse of public policy is saddled, its rein and crop will be that value system.” 129
This assessment calls for a two-stage approach to be adopted. In respect of the first stage, the content and scope of the rights protected, including the meaning and objects of the challenged conduct, must be determined to establish if there is such deprivation or limitation.130 If there is such a limitation, the enquiry would then proceed to the second stage of the inquiry. This stage entails a balancing process by applying a proportionality test, provided for in section 36 (1) of the Constitution. The party (abused woman) relying on the disputed conduct should demonstrate that the limitation is justifiable under the Constitution.131
While the Constitution does not establish a hierarchy of rights, judges and academics have acknowledged that some rights are more foundational, constituting a core of rights from which others are derived. O’Regan J, in S v Makwanyane 132 earmarked the right to life as “antecedent to all other rights in the Constitution”.133 The same is true of the
129Du Plessis v De Klerk 1995(2) SA 40 (T) at 501I-J.
130S v Walters supra (n 126) at par [26].
131Ally and Viljoen supra (n 128) 130.
1321995 (6) BCLR 665 (CC).
133Ibid at par [326]. Ex parte Minster van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A) is the benchmark decision for the proposition that killing in defence of property is justifiable. In this case the Minister of Justice reserved two questions for the Appellate Division: (a) May a person rely on private defence where he kills or wounds another to protect property? (b) If so were the bounds of private defence exceeded bearing in mind the circumstances of S v Van Wyk? While three separate judgments were delivered, the court was unanimous in its affirmative answer to the first question (at 501H; 504B and 509A). But as Ally and Viljoen supra (n 128) at 127 have noted, section 24 and section 37 (1) of the Criminal Procedure Act 56 of 1955 relied on by Steyn CJ were declared unconstitutional in Walters supra (n 126). According to section 24, a civilian is authorized to arrest a suspect, including someone suspected of property crimes such as theft and robbery. Section 37 (1) allows the civilian so authorized to use deadly force to prevent the escape of the suspect when the suspect flees and it is clear that an attempt is being made to arrest him. Steyn concluded his reasoning in Van Wyk supra by emphasizing that the suspect could be lawfully killed despite the fact
right to dignity, especially when taken together with the right to life.134 To this should be added the right to bodily integrity. Ally and Viljoen note De Waal’s discussion of the meaning of the right to bodily integrity:
“Violence against an individual is a grave invasion of personal security. Section 12 (1) (c) requires the state to protect individuals, both by refraining from such invasions itself and by discouraging private individuals from such invasions.” 135
To meet constitutional muster, the limitation must be closely linked to its purpose.136 Abused women are entitled to protect their life therefore, can kill to achieve this. But an important factor in such an evaluation is whether less restrictive means are available to achieve the stated objectives. As Ally and Viljoen note, one way of posing this question is to reformulate some of the case law at common-law: “the use of violence especially lethal force, can only be justified if it is necessary (that is, if it is the only means to avoid death or grievous bodily harm).” 137 While it could be said that the battered woman could have left the abusive relationship, the law does not require the abused woman to leave her home, nor does it expect ordinary persons to display acts of
that he posed no harm or threat of harm to the citizen. Steyn CJ noted that an arrest, was not private defence, but justified his analogy by asserting that both instances form part of the societal interests in the protection of property. The judge concluded: “Consequently in our law it is not preposterous idea to assert that a person can kill in defence of a right other than life or limb” (at 497H) (own translation). Ally and Viljoen supra (n 128) at 128 note that no judicial pronouncement has as yet been given about the constitutionality of the common law as enunciated in S v Van Wyk.
134S v Makwanyane supra (n 132) at par [144]. The constitutional values protected by these rights are described in Makwanyane supra (n 132): “Together they [the right to life and human dignity] are the source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the twin rights of life and dignity.
These twin rights are the essential content of all rights under the Constitution. Taken away, all other rights cease” (at par [84]).
135Ally and Viljoen supra (n 128) 132, citing De Waal Bill of Rights Handbook 3ed (2000) 233.
136Section 36 (1) (d) of Constitution of the Republic of South Africa 1996.
137Ally and Viljoen supra (n 128) 133.
heroism. Thus harm (death or serious bodily injury of the abuser) caused as a result of the limitation can be justified when section 36 is applied.138
Private defence is an extraordinary remedy that involves the infliction of harm upon another individual. To escape criminal liability for this act, the defender must be able to show that her resort to private defence conformed to the social and legal norms that result in the use of self-help by citizens. In respect of self- defence the norms that apply require that the defender be able to provide evidence that her resort to force was necessary in the circumstances she found herself in and that she used means appropriate to the danger that confronted her. These requirements for successfully invoking the defence are expressed as conditions that must have been present or complied with. Such
“triggering” conditions relate to the nature of the attack and the nature of the defender’s response (the defence).139 For a situation of private defence to arise, evidence must show (1) an attack upon a (2) legally protected interest and (3) that the attack was unlawful. However, it is necessary to first consider the test used for private defence, before engaging in a discussion of the elements.
2.1.2. The test for private defence