The Battered Woman and South African Law
2. Introduction
2.1 Self-defence
2.1.2. The test for private defence 1 The objective test
2.1.2.3 Putative private defence
In Roman law it would appear as if no distinction was drawn between self-defence and the current notion of criminal fault. 168 In earlier cases, South African courts found that mistake of fact could only be excusable if it was reasonable.169 In R v Mbombela 170 De Villiers JA held that:
“A reasonable belief, in my opinion, is such as would be formed by a reasonable man in the circumstances in which the accused was placed in the given case. The ‘reasonable man’ is in this connection the man of ordinary intelligence, knowledge and prudence. It follows that mistake of fact is not reasonable if it is due to lack of such knowledge and intelligence as is possessed by an ordinary person, or if it is due to such carelessness, inattention and so forth, as an ordinary person would not have exhibited. The particular point, however, which is raised by the question reserved, is whether there is only one type of ‘reasonable man’ who is to be taken as the legal standard, or whether in a case like the present, another type of reasonable man is to be conceived of, viz, ‘an ordinary native aged 18 years and living at home in his kraal’. I have no doubt that by the law of this country there is only one standard of the ‘reasonable man’.” 171
Over time, the courts did away with the reasonableness requirement.172 In S v Sam 173 Myburgh J held:
“On the authority of the decided case law, it is my opinion that where intention (dolus) is a requirement for the offence charged, the state must prove knowledge of unlawfulness
168 Labuschagne “Putative Noodweer: Opmerking oor ‘n Dadersubjektiewe Benadering to Misdaadomskrywing” (1995) Tydsrif vir die Hedendaagse Romeinse Hollandse Reg 116 at 119. See also Van Warmelo supra (n 111) 16.
169Labuschagne supra (n 168) 119.
1701933 AD 269.
171Ibid at 273.
172Labuschagne supra (n 168) 119. In this respect see R v Z 1960 (1) SA 739 (A) at 743.
1731980 (4) SA 289 (T).
beyond a reasonable doubt. The question as to whether the mistake of fact was reasonable or not, is not an issue here because the test is subjective. The notion of reasonableness or unreasonableness, and the degree thereof, in the circumstances and the facts of the case, only come into play when it has to be proved that the accused did indeed have a bona fide belief or not. It does not affect the legal concept in that capacity. It applies in either common law or statutory crimes where dolus is a requirement.” 174
In R v Ndara 175 the question as to whether the accused acted in putative self-defence was answered by Schreiner J:
“Now if full effect is given to these findings, there is a good dealt to be said for the view that they amount to holding that the appellant believed that the conditions required for self- defence existed in his favour; if so it would be arguable that even though he was mistaken he should be treated as if those conditions did in fact exist. It should, however, be observed that there is no finding by the trial court that the appellant could reasonably have entertained more than a fear, perhaps a strong fear that his pursuers would not only hand him over to the police but would also themselves assault him. For a mistaken belief to operate in favour of the accused person it is commonly said that the belief must be reasonable… and the circumstances of this case provide a strong argument in favour of this view.” 176
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,177 then she may be acquitted of murder on the basis of putative private defence, which is subjectively assessed.178
174Ibid at 294.
175R v Ndaru supra (n 141).
176Ibid at 185. This is in accordance with R v Sile 1945 WLD 134 135 and R v De Ruiter 1957 (3) SA 361 (A) 364.
177S v De Oliviera supra (n 141).
178Ibid at 163I-J, per Smalberger JA.
In S v De Oliviera 179 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.” 180
This honest, but incorrect belief would eliminate the necessary intention to commit such an unlawful act. Furthermore, the test for intention is subjectively assessed:
“The focus of attention in ascertaining whether or not intention existed is the woman’s subjective state of mind. The fact that her belief may have been unreasonable or even foolish under the circumstances is of no consequence at all as this enquiry does not concern itself with what a reasonable person would have done under the same circumstances.” 181
This raises two points. Firstly, the issue here relates not to lawfulness but culpability.182 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:
“[t]his does not save the accused woman from possibly being convicted of culpable homicide. This is because negligence, not intention, is the fault element required for a culpable homicide conviction. To establish liability for this crime the test is whether the reasonable person would have foreseen that the remedy of self-defence was not lawful. The position at law is that if a reasonable person would have foreseen that the resort to self-defence was unlawful, then the accused is negligent for failing to foresee this. She would accordingly be guilty of culpable homicide.” 183
179S v De Oliviera supra (n 141).
180Reddi supra (n 1) 275. Cf S v Ngomane 1979 (3) SA 859; S v Ntuli supra (n 141).
181Reddi supra (n 1) 275.
182S v De Oliviera supra (n 141) 163I-J.
183Reddi supra (n 1) 275.
Reddi however notes that in the case of an abused woman, the “social framework or circumstances that may have impacted on the woman’s conduct would have a bearing on the determination of the woman’s culpability.” 184 Evidence of the “cyclical nature of abuse” 185 as well as the woman’s failed attempts at leaving her abuser would be highly relevant to inform putative self-defence.186 For this reason, if a reasonable person, located in the extraordinary circumstances of the accused, would not have foreseen that the resort to self-defence was unlawful, then the abused woman cannot be expected to have such foresight. Reddi notes that “in these circumstances, her lack of foresight would not be regarded as negligent and a charge of culpable homicide would fail.”
It is submitted that putative private defence is highly relevant to the battered woman who kills her abuser in circumstances that fall outside the parameters of private defence as it may represent the difference between a conviction of murder and one of culpable homicide in South African law. At its most extreme it even may prove the difference between a conviction of murder and a complete acquittal.187
184 Reddi supra (n 1) 276.
185For a discussion of the cyclical nature of violence referred to in the Engelbrecht supra (n 143) see 40- 41 op cit. From the battered woman’s viewpoint, the abuse would be inevitable, therefore prompting her to act.
186In this respect see n 161.
187Thus the result attained in the case of Lavallee supra (n (153) through self-defence can be achieved in South African law through the use of putative self-defence. For a discussion of this case, see chapter 4 at 188-194.
2.2 Requirements of the Attack