In South African law, the defense consists of the conditions of an attack, which include: an attack and protected interest, and the attack must be unlawful. As far as the conditions of defense are concerned, the defense must be reasonably necessary to ward off the attack, and the defense must be directed against the attacker. In terms of pending requirements, the problems created by this standard cannot be solved.
However, it is argued that not all the characteristics of the accused must be taken into account. In the case of the abused woman, her situation is adequately addressed within the perspective of reasonableness and neutrality. The issue that this case has highlighted for South African law on non-pathological incapacity is whether the boundaries of the defense have been inappropriately extended.
Where purposeful conduct is present, this necessarily implies that a level of capacity must be present in the case of the defense of non-pathological incapacity. AN ANALYSIS OF THE DEFENSES AVAILABLE IN SOUTH AFRICA TO BATTERED WOMEN WHO KILL THEIR ABUSERS.
Introduction
Justification for choice of comparative systems
The roots of South African criminal law (like most of South African customary law) are found in Roman law. But with the introduction of Roman law, little was left of this customary law, which was important for Roman-Dutch criminal law. After the revival of the study of Roman law (developed by medieval Italian lawyers), the Justinian compilation of Roman law became the 'jus commune' of continental Europe.
In 1652, Van Riebeeck founded a settlement at the Cape of Good Hope on the orders of the Dutch East India Company. The law of evidence and procedure (both criminal and civil) were restructured according to the patterns of customary law.83. After the establishment of the Union of South Africa in 1910, the progressive Anglicization of law came to an end.87.
Roman-Dutch and English law were fused.88 This stems from the fact that English influence is significantly greater with regard to the "pigeon hole" and definition of the common law crimes than with regard to the general principles of criminal liability. . The Constitution of the Republic of South Africa of 1996 stipulates that common law must be developed with a view to implementing constitutional values.
The Battered Woman and South African Law
Introduction
- Self-defence
- Development of the defence
- The test for private defence 1 The objective test
- Requirements of the Attack .1 An Attack 188
- Commenced or imminent
- Protected interest
- Unlawful
- Requirements of the defence
- Provocation
- Development of the defence
- Non-pathological incapacity .1 Introduction
- Development of the defence of non-pathological incapacity
- Conclusion
113Steyn (n 110) at 471: “There must be some proportionality in regard to the attack and the defence. 151 Ibid at 437E. So the test must be applied by the court by placing itself in the position of the accused at the time of the attack. For a mistaken belief to work in favor of the accused person, it is generally said that the belief must be reasonable.
Snyman supra (n 124) is of the view that the court should have upheld the accused's plea of private defence. What if the people the accused had confronted had not been part of the original assault. In R v Molako 1954 (3) SA 777 (O) support was shown for a subjective assessment of the effect of provocation on the accused.
In the case of S v Mahlinza,290 the court was of the opinion that the criminal capacity of the accused was an essential requirement necessary to establish criminal liability.291. Prior to the day of the murder, the accused had been exposed to a great deal of emotional stress. The court noted that this was clearly an act of provocation on the part of the deceased (at 261).
Thus, both the voluntariness of the defendant's conduct and his capacity were called into question. On the day of the attack, the accused started the day in an exhausted state. The testimony on the mental state of the accused at the time of the murder was conducted by the defense counsel.
Louw notes that another problem with the Moses 350 case is that “the conceptual foundation of the defense's case is the psychological argument that the accused's controls 'collapsed'. I agree that much of the problem lies in the misapplication of the [capacity] test. Furthermore, the case of S v Ferreira supra (n 141) shows that the courts have avoided using the term.
The judge was not convinced that the second stage of the test would be dropped. Another difficult hurdle a battered woman faces in self-defense claims relates to the objective components of the defense, i.e.
Introduction
- Self-Defence
- Development of the defence
- Test for self-defence
- Elements of self-defence .1 Reasonableness
- Duty to retreat
- Imminence of the attack
- Excessive self-defence
- Provocation
- Development of the defence
- Requirement of sudden loss of self-control
- The objective test of provocation
- Proportionality and the reasonable person
- Self-induced provocation
- Diminished responsibility .1 Introduction
- Development of the defence
- Pleading Provocation and Diminished Responsibility together
- Conclusion
The court in Martin (Anthony) 536 conceded that evidence of the accused's physical characteristics may be admissible. The justification form of the defense applies where the accused correctly perceives that she is being attacked. Prior to this, the test was purely objective with none of the accused's characteristics attributable to the reasonable person.
Cockrell is of the opinion that “the above statement suggests that the jury must make a distinction between cases going to the severity of provocation and cases going to the standard of restraint. For the former they should be able to take into account all characteristics of the accused (subjective), while for the latter the accused must exercise ordinary powers of self-control that would be exercised by an accused of the same age and gender (objective)".617 . The explanation for this was that the test was intended to apply to the power of self-control of a reasonable person and was not concerned with the severity of the provocation.638.
Yet it is clear from the context in which this comment appears that His Lordship was discussing the relevance of the suspect's gender in assessing the seriousness of the provocation and not in relation to the strength of self-control. Mousourakis supra (n. 544) is therefore of the opinion that there must be a moral basis for reducing guilt and that the basis must be related to the seriousness of the provocation and not to the suspect's deficiencies in self-control. Nevertheless, it could represent an important step in liberalizing the test of a reasonable person, by allowing the consideration of any characteristic that affects the suspect's capacity for self-control.” 652.
The essence of Article 3 is that provocative behavior and its effect on someone with the characteristics of the suspect. One of the basic skills of lawyers is to argue defenses in the alternative” (at 539). It therefore seems to me that the specific characteristics of the suspect can be taken into account at both stages of the investigation.
The Law Commission was of the view that the defense was not supported by any clear rationale. It is for this reason alone that the Privy Council rejected the decision of the House of Lords. 721 Mousourakis supra (n 544) at 166 notes that medical evidence must be adduced to support the allegation that the accused in fact suffered from an abnormality of the mind arising from one of the causes specified in section 2(1) of the Murder Act 1957.
In the context of the case, this justifies the position that her guilt is substantially reduced. The Law Commission notes that there appears to be some inconsistency in the willingness of psychiatrists to testify about the diagnosis of the accused's mental health.
Introduction
- Self-defence
- Early development of the defence
- Test for self-defence
- The objective test
- Subjective standards of self-defence .1 The subjective test
Furthermore, criticism will be raised of the other elements relating to the defences: In self-defence, emphasis will be placed on proximity, proportionality and the duty to withdraw. The meaning of the legal concept of self-defense determines the scope of its application. For this reason, emphasis is thus placed on the use and exercise of the means available to the actor, rather than on the legal nature of the privilege itself.
The outward manifestation of the privilege is what gives exemption and not the legal nature of the concept. A consequence of this concept is to place all aspects of self-defense within the domain of a single test, distinguishing them only by the degree of the use of force used.783. Finally, the person accused of the killing must not have been the attacker or caused the provocation.789.
For a discussion of the test used in South African self-defence law, see ch 2 at 35-41 above; for the test used in English law see Chapter 3 at 113-116 below. Stewart's marriage consisted of a long history of mental and physical abuse and on the day of the murder, although the defendant had access to two vehicles to enable him to escape, she proceeded to kill him. The trial court allowed testimony regarding the abusive history of the marriage to allow the trier of fact to determine whether defendant's perception of danger was reasonable.
The appeals court criticized the trial court's instruction on self-defense for not being sufficiently objective. Such justification requires both the defendant's belief and the existence of facts that would lead a reasonable person to that belief. In light of the defendant's state of mind, you must determine whether the defendant's belief that she must defend herself was reasonable in light of her subjective impressions and the facts and circumstances known to her” (at 579).
A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases" (1998) American Journal of Criminal Law 1 at 12 raises this point and states that: "Since self-defense justification version of the object standard necessarily presupposes that individuals possess free will. By allowing consideration of the unique physical and psychological characteristics of a defendant, the court does not hold the defendant to an unattainable standard of conduct.802 By definition, this standard requires a jury to consider a plea of self-defense in the context of an abused evaluate. woman's situation. This test is subjective and the jury must consider the circumstances of the defendant and determine whether her conduct was reasonable given those circumstances (at 810-811).
