The Battered Woman and South African Law
2. Introduction
2.3 Provocation
2.3.1 Development of the defence
2.3.1.1 The objective test
South African law might have followed the Roman and Roman-Dutch law, were it not for the introduction of the mandatory death penalty 247 in 1917. Initially, under the influence of section 141 of the Transkeian Penal Code of 1886, the South African courts adopted the stance that provocation could never be a complete defence to killing.
At most it could be a partial defence. Therefore, homicide which would otherwise be murder, could be reduced to culpable homicide if the individual who caused the death did so in the heat of passion occasioned by sudden provocation.248 It appears that the
“crucial factor in the courts not adopting the Roman-Dutch approach to provocation was founded not so much in doctrinal preference as the need to take account of a
244De Wet supra (n 76) 131, citing Matthaeus De Criminibus ad Lib XLV III Dig Commentarius (1644) Prol 2 14.
245De Wet supra (n 76) 132, citing Moorman Verhandeling Over de Misdaden en der selver Straffen (1764) Inl 2 31; Van der Keessel Praelectiones ad Jus Criminale Vol 3 at 998 ff.
246Hoctor supra (n 242) 111, citing De Wet supra (n 76) 131-132.
247Burchell supra (n 29) 427.
248The court’s adoption of the “specific intent” approach is evident in relation to provocation. See for example R v Potgieter 1920 EDL 254 where Gane AJ states “One of the circumstances under which a charge of murder may be reduced to culpable homicide is where there has been great provocation, resulting in a justifiable heat of mind which prevents the accused from forming an actual intention which he would have been able to form had these circumstances of provocation not existed” (at 256).
ruthless sentencing regime, in terms of which the death penalty was mandatory with no provision made for extenuating circumstances”.249
Section 141, which was based upon English law,250 envisaged a type of partial excuse situation: even if the killing was intentional “homicide which could otherwise be murder [it] may be reduced to culpable homicide.” 251 By requiring the provocation to be sufficient to deprive an “ordinary person” of self-control, an objective test of provocation was introduced into South African law.252
In 1925 section 141 was accepted by the Appellate Division in R v Butelezi 253 as reflecting the South African law on this subject.254 To determine whether intention was present, section 141 embodied an objective test: the question was not whether the accused lacked intention for murder but whether a fictitious, ordinary person would as a
249Hoctor supra (n 242) 112; Burchell supra (n 29) 427. This is in terms of Criminal Procedure and Evidence Act of 1917. See also Hoctor supra (n 242) at 112 noting De Wet’s supra (n 76) statement that, there was temptation for judges to ensure, in circumstances where the killing was less blameworthy, that the death penalty was not in question by handing down a verdict of culpable homicide rather than murder (at 134).
250Burchell supra (n 29) at 427 has noted that the Transkeian Penal Code was strongly influenced by the Indictable Offences Bill of Sir James Stephen, which was drafted as a code of English criminal law and the draft code of June 1879 differed little from Stephen’s original code. However, neither code was passed into law. In R v Pascoe 2 SC 427 where the accused was charged with the murder of his wife and her suspected lover (upon finding them together in the bedroom), Lord de Villiers instructed the jury that whilst killing in circumstances where a couple were caught in adultery was not justified, that this would be a case of culpable homicide, and not murder. A similar approach was adopted in R v Udiya 1890 NLR 222. In R v Tsoyani 1915 EDL 380, the accused were held to have exceeded the bounds of defence, but as a result of the provocation which they endured, it was held that the verdict should be one of common assault, rather than assault with intent to do grievous bodily harm.
251Burchell and Milton supra (n 26) 280. Cf R v Hercules 1954 (3) SA 826 (A) at 352F-H: “The law recognizes a hybrid or middle situation where there is an intention to kill but where that intention is not entirely but to some extent excusable”.
252Cf Hunt South African Criminal Law and Procedure Vol II 1st ed (1970) at 374: “The reasonable person is the embodiment of all qualities which we demand of a good citizen, a device whereby to measure the criminals conduct by reference to community values”.
2531925 AD 160 at 162.
254Ibid at 163.
result of provocation have lacked intention.255 Thus, an objective test of provocation was established in South African law.256 The objective test remained in force, 257 until the case of R v Thibani.258
By 1949 the position regarding mens rea had been considerably altered. A move towards a more subjective approach for provocation was followed. In the case of R v Thibani 259 Schreiner JA held provocation had assumed its proper place as “a special kind of material from which in association with the rest of the evidence, the decision must be reached whether or not the crown has proved the intent, as well as the act, beyond reasonable doubt.” 260 In terms of such an approach, provocation is merely a factor taken into account in establishing the accused’s state of mind at the crucial time.261
255Burchell and Milton supra (n 26) 280.
256Ibid.
257R v Attwood 1946 AD 331; R v Blokland 1946 AD 940; R v Tshabalala 1946 AD 1061; R v Zwane 1946 NPD 396. This was the case, despite the courts occasionally applying a subjective test, holding that the accused was guilty of culpable homicide rather than murder on the basis that the provocation excluded intent, rather than because the accused was considered less blameworthy: cf R v George 1938 CPD 486 and R v Cebekulu 1945 (2) PH H 176 (A). See further the minority judgment of Stratford JA in R v Ngobese 1936 AD 296 at 306 and Rhodesian case of R v Maloko 1949 (2) Ph H 110.
2581949 (4) SA 720 (A), discussed by Hoctor supra (n 242) 113.
259Ibid.
260Ibid at 731. Hoctor supra (n 242) at 113 notes that Schreiner JA followed the developments of English case of R v Woolminton 1935 AC 462 and the South African cases of R v Ndhlovu 1945 AD 369. Despite a move towards a subjective test for provocation, the case of R v Kennedy 1951 (4) SA 431 (A) at 438h (the court in this case following the case of Attwood supra (n 257) demonstrated a move towards an objective approach. In R v Molako 1954 (3) SA 777 (O) support was shown for a subjective assessment of the effect of provocation on the accused. But the court was careful to point out that there should be no weakening of the principle that a sane person is responsible for the ordinary consequences of his acts (at 781B-G).
261Hoctor supra (n 242) at 113; Burchell and Hunt supra (n 73) 242.
In R v Tenganyika 262 the Federal Supreme Court was of the view that provocation had been given a restricted role in the Thibani 263 case. The court was of the view that provocation could not only be used in the way suggested by the court, but also that it could be used in the way indicated in section 141.This comprised a two-stage test. 264
First it should be enquired whether, despite the provocation, the accused, had the intent to kill, subjectively assessed. If the intent to kill was absent, the accused would be acquitted of murder, but found guilty of culpable homicide. However, if the accused did have the intent to kill, the second stage of the test would be whether the reasonable person would have lost his self-control in the circumstances (objective test). If this was the case, then the court would reduce the offence to one of culpable homicide, despite the presence of intention. 265
In R v Krull 266 the suggestion that provocation could be utilized in the way not only set out by the court but indicated in section 141 was rejected by the Appellate Division.
The court was of the view that these two roles were incompatible with one another and that the approach in Thibani 267 was the correct one. The role of the court in Krull 268 was:
2621958 (3) SA 7 (FSC).
263R v Thibani supra (n 258).
264Hoctor supra (n 242) at 114, discussing R v Tenganyika supra (n 262) at 12 and 11G; H; 13A, E. This would cater for principle (subjective approach to mens rea) and policy (to ensure that the accused would not be acquitted).
265Hoctor supra (n 242) 114.
2661959 (3) SA 392 (A).
267Hoctor supra (n 242) at 114-115, discussing R v Thibani supra (n 258).
268R v Krull supra (n 266) and in the process dismissing the Tenganyika supra (n 262) approach for its mixture of both subjective and objective elements (at 399F, H).
“...to examine all the evidence which throws light on the mental state of the accused at the time of the killing in order to see whether, having regard to the effect of provocation and intoxication on his powers of understanding self-control, but excluding mental abnormalities short of insanity and excluding normal personal idiosyncrasies [sic], he had the intention to kill.” 269
Schreiner JA emphasized that an objective dimension to the examination of provocation was essential for practical purposes. The argument went that hot-headed individuals should not be allowed to give free reign to their emotions.270