The Battered Woman and South African Law
2. Introduction
2.2 Requirements of the Attack .1 An Attack 188
2.2.1.2 Protected interest
Private defence may be resorted to only in respect of a legally recognized and protected interest in law.200 Many legal systems have approached the question of what interests may be protected by private defence in a casuistic fashion. This results in not all legal interests being recognized as the subject of the private defence.201
198S v Engelbrecht supra (n 143).
199Ibid at par [349].
200In S v Kamffer 1965 (3) SA 96 (T) it was held that a parent did not have the additional remedy of self-help in order to obtain access to a child. See also chapter 5 at 230 infra.
201Burchell supra (n 29) 235. It is universally agreed that a person is entitled to protect life (see R v Jack Bob supra (n 151); R v Manuele Sile 1945 WLD 134; R v Hele supra (n 141); R v Zikalala supra (n 151); R v K supra (n 151); R v Segatle 1958 (1) PH H 125 (A)); limb (see R v Cele supra (n 151); R v Patel 1959 (3) SA 121 (A) at 123; S v Jackson 1963 (2) SA 626 (A); S v Mtetwa 1967 (2) PH H 273 (N)); freedom (see R v Hayes supra (n 194); R v Mahomed (1906) 27 NLR 396; R v Kantolo supra (n 194); R v Mfuseni (1923) 44 NLR 68; R v Jackelson 1926 TPD 685; R v Kleyn 1937 CPD 288; R v Karvie 1945 TPD 159); sexual integrity (see R v Nomahleki 1928 GWL 8); chastity (see S v Mokoena 1976 (4) SA 162 (O) at 163C-D to the effect that a man may use force to defend the chastity of his wife or sister); dignity (see S v Van Vuuren 1961 (3) SA 305 (E). In S v Ndlangisa 1969 (4) SA 324 (E) X was charged with insulting Y’s dignity by spitting in her face. He said he did so because Y was insulting him and he wished to stop her from doing so. This defence of private defence did not succeed, the court holding that X had “taken the law into his own hands when there were other remedies open to him”). Lastly, other persons can be protected (see R v Patel supra R v Mhlongo 1960 (4) SA 574 (A); S v Van Vuuren supra; (although it has been suggested by Gardiner and Lansdown supra (n 110) at 112 that the defence of third parties is only lawful where there is a relationship in which it is the defender’s moral or legal duty to act in defence of a third party, this view is not generally favoured, see Burchell South African Criminal Law and Procedure Vol I 3rd ed (1997) 80); and property (see S v Van Wyk supra (n 133); S v Mogohlwane supra (n 193), although Mogohlwane should not be understood to unequivocally support the provision that killing in defence of property is justifiable as in this case the defences of property and life were closely linked: “…his life or body were under threat… [be]cause his attacker wanted to injure him, the accused fatally stabbed him” (at 594B-C)). The issue which has yet to be determined by our courts is whether the Constitution allows for the use of lethal force to protect property when life or bodily integrity not threatened in process (see S v Walters supra (n 126) at par 53 n 66). As Ally and Viljoen supra (n 128) note: “the development by our courts of rules of the common law, which may entail a limitation of rights, must comply with section 36 of the Constitution. The common-law rule in S v Van Wyk violates at least the rights to life, human dignity and bodily security. In our view these deprivations are not in accordance with section 36. Applying the proportionality test, in principle means weighing
Section 7(2) of the Constitution requires the State to “respect, promote and fulfill the rights in the Bill of Rights”.202 Foundational values of the Constitution include those of
“equality” and “dignity”. Section 9(1) and (2) provide that “everyone is equal before the law and has the right to equal protection and benefit of the law” and that “equality includes the full and equal enjoyment of all rights and freedoms”, while section 10 provides that “everyone has an inherent dignity and the right to have their dignity respected and protected”.203 The protected rights include those in section 12 “to freedom and security of the person” which cover the rights “not to be deprived of freedom arbitrarily or without just cause; to be free from all forms of violence either from public or private sources; not to be treated or punished in a cruel, inhuman or degrading way” as also “to bodily and psychological integrity” which cover the rights “to make decisions concerning reproduction; to security in and control over their body”.204 In addition to common-law and statutory provisions for the protection of these rights, the legislature has enacted the Domestic Violence Act 116 of 1998, of which the Preamble states:
“Recognizing that domestic violence is a serious social evil;
that there is a high incidence of domestic violence within South African society; that victims of domestic violence are among the most vulnerable members of society; that domestic violence takes on many forms; that acts of domestic violence may be committed in a wide range of domestic relationships;
and that the remedies currently available to the victims of domestic violence have proved ineffective; and having regard to the Constitution of South Africa; and in particular, the right to equality and to freedom and security of the person; and the international commitments and obligations of the State towards ending violence against women and children,
the nature, importance and extent of the limitation of the right against the nature and importance of the objective of the limitation, which are the protection of property and prevention of crime (at 135).
202Constitution of the Republic of South Africa of 1996.
203Ibid.
204Ibid.
including obligations under the United Nations Conventions on the Elimination of all Forms of Discrimination against Women and the Rights of the Child; it is the purpose of this Act to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of State give full effect to the provisions of this Act, and thereby to convey that the State is committed to the elimination of domestic violence.”
The Domestic Violence Act 205 has comprehensively defined “domestic violence” as including physical and non-physical forms of violence, all of which fall under the rubric of “controlling and abusive behaviour... where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant”. It would appear that the Legislature has chosen to emphasize the effect of abusive conduct upon the victim as opposed to the specific form taken by such conduct.206
In S v Baloyi 207 the Constitutional Court noted that domestic violence compels constitutional concern in a number of important respects. On the one hand, the Constitution:
“has to be understood as obliging the State directly to protect the right of everyone to be free from domestic violence.
Indeed, the State is under a series of constitutional mandates which include the obligation to deal with domestic violence;
to protect both the rights of everyone to enjoy freedom and security of the person and to bodily and psychological integrity, and the right to have their dignity respected and protected, as well as the defensive rights of everyone to be subjected to torture in any way and not to be treated or punished in a cruel, inhuman or degrading way.” 208
On the other hand:
205Domestic Violence Act supra (n 1).
206As per Satchwell J in S v Engelbrecht supra (n 143) at par [157].
207S v Baloyi supra (n 153).
208Ibid at par [11].
“(t)o the extent that it is systematic, pervasive and overwhelmingly gender-specific, domestic violence both reflects and reinforces patriarchal domination, and does so in a particularly brutal form... The non-sexist society promised in the foundational clauses of the Constitution, and the right to equality and the non-discrimination guaranteed by section 9, are undermined when spouse-batterers enjoy immunity.” 209
The Constitutional Court endorsed the view that domestic violence is “systematic, pervasive and overwhelmingly gender-specific”. It “both reflects and reinforces patriarchal domination and does so in a particularly brutal form”. It thus also implicates the core values of equality.210
In Engelbrecht 211 it was held that all those rights which were enshrined in the Constitution 212 constituted the interests which were deserving of protection in this defence of justification. It followed that the interests which were attacked and which an abused woman could protect, include her life, bodily integrity, dignity, quality of life, her home, her emotional and psychological wellbeing, her freedom as well as the interests of her children. In short, the accused defended her status as a human being and/ or mother.213