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«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»

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circumstances. 10 This approach clearly takes much of its character from the rules of self-defence prevailing in the U.S.A. where justification and excuse are considered under a single axiom of reasonableness. The defence in Engelbrecht proposed a firmer application of the ‘normative theory of culpability’ and explained it as being applicable ‘[w]here an accused has an awareness of unlawfulness, criminal capacity and intention but commits an act in circumstances under which the law could not expect a reasonable person to have acted differently.’ 11 Consequently, argued the defence, the accused should be found not blameworthy and excused from her conduct. 12 The court did not accept the argument presented and, it is submitted, this was the correct approach to take for the following reasons. Firstly, Fletcher notes that to obfuscate the boundaries between justification and excuse means that wrongfulness and blameworthiness are subsumed under the same enquiry and this makes it difficult to demarcate between fundamentally different perspectives of liability. 13 Secondly, with regard to the argument that the approach advanced by the defence in Engelbrecht would reflect a ‘development’ in the law, the concern is that the argument, in law, seeks only to excuse – as opposed to justify – the conduct of the battered woman accused. Consequently, even if the Above n8 at 52. This argument was supported by the amicus curiae appointed in Engelbrecht who argued ‘that the Court need not confine itself to assessing Mrs Engelbrecht’s conduct in the light of established defences but need only assess Mrs Engelbrecht’s actions according to the “legal convictions of the community” test which should be driven by the values underlying and embodied in the Constitution.’: above n8 at 52. It is submitted that in addition to the reasons cited in the discussion that follows in the body of the text, the argument of the defence is not supported for the fact that it appears to support the argument for a separate defence for battered women. For a further discussion on the issue, see section 8.3.1.2 below.

Above n8 at 52. See also CR Snyman Criminal Law (Butterworths, Durban: 2002) who discusses the distinction between the ‘normative theory of culpability’ and the ‘psychological theory of culpability’.: at 146 and 143 respectively. Snyman notes that the positive law applies the psychological approach, viewing blameworthiness from the accused’s perspective; whilst he personally favours the normative theory, which is a more value-based judgement.: at 146 and 150specifically at 156.

Ibid.

GP Fletcher ‘The Right and the Reasonable’ 1985 98 Harvard Law Review 949, at 962.

Mousarakis presents a worthy note in explaining, however, that in separating justification and excuse one should not make the error of believing that there is, thus, no room for the reasonable person standard under the test for justification. He explains that under justification, the norm of the reasonable person is always very relevant to indicate the course of action that should be regarded in the circumstances as legally permissible. (Under the excuse defence the reasonable person standard is used to enquire whether the accused is fairly expected to stand up to the pressure of the circumstances and refrain from acting wrongfully.): G Mousourakis ‘Justifications and Excuses in the Criminal Law’ 1998 2 Stellenbosch Law Review 165, at 178.

defence is successful, the conduct is nevertheless regarded as unacceptable. In

specifically dealing with this issue, Crocker states:

Although both excusable and justifiable self-defense fully pardon the defendant from criminal liability, an important ideological distinction separates the two. Society holds an excusable act to be wrong, but tolerates it because of the actor’s state of mind. … Society perceives a justified act of self-defense as correct ….

Crocker continues:

Unlike excuse, justification posits the act as right, and therefore not condemnable; the substance of the deed rather than the person’s state of mind is at issue.

Whether society justifies a woman for taking a man’s life while defending herself or excuses her for thinking she was worth defending is crucial for battered women. 15 Thirdly, a consideration of specific legal authorities indicates that a distinction between justification and excuse is conceptually possible and should be maintained in the South African law, 16 especially it is submitted if the law is to be seen as an instrument contributing to social policy goals. Thus, it is urged that as a starting premise, the South African law continues to view self-defence as a justification for the conduct being assessed: in other words, unlawfulness is excluded.

PL Crocker ‘The Meaning of Equality for Battered Women Who Kill Men in Self-Defense’ 1985 8 Harvard Women’s Law Journal 121, at 130-1.

Ibid at 131.

See FFW Van Oosten ‘Case Comment: S v Van Antwerpen 1976 3 SA 399 T’ 1977 1 De Jure 179, at 181; Fletcher above n13 at 962-3; W Le Roux ‘Obedience to Illegal Orders: A Closer Look at South Africa’s Post-Apartheid Response’ 1996 17 Obiter 247, at 256; and JMT Labuschagne ‘Die Proses van Dekonkretisering van Noodweer in die Strafreg: ‘n Regsantropologiese Evaluasie’ 1999 1 Stellenbosch Law Review 56, at 64 and 68.





As evidenced from the discussions in the preceding Chapters, the traditional elements of self-defence can present a number of complex and controversial legal hurdles for a battered woman charged with murder. Many battered women who attempted to claim self-defence after killing their abusive partners have found that their cases failed because their claims could not be made to coincide with the parameters of traditional self-defence laws. However, having regard to the definitional requirements of self-defence in South Africa and comparing them with the requirements for self-defence in the U.S.A., Canada and Australia, one may reasonably state that the doctrinal framework of the South African law is sound. Having committed to such a statement it must be added that it is also imperative that South African courts adopt a flexible approach to the application of the stated requirements, particularly in (i) interpreting the elements of imminence and necessity and (ii) taking cognisance of the circumstances of the accused. 17 In summarising the basis of the law of self-defence, Snyman notes that two theories have been identified for the existence of private defence: the protection theory and the upholding of justice theory. 18 In terms of the former, the emphasis is on the individual and her right to defend herself against an unlawful attack; and under the latter theory the underlying idea is that people acting in private defence perform acts whereby they assist in upholding the legal order. 19 Thus, it is submitted that, at a more general level, if the courts lean more towards the protection theory coupled with a preparedness to allow the evidence of experts on the dynamics of battery, 20 it will assist in ensuring fairness and justice for victims who kill their abusers.

Similarly, Sheehy, Stubbs and Tolmie confirm that ‘[i]n most cases, battered women on trial for murder of their abusive partners, have difficulty in getting the circumstances surrounding their killings realistically appraised by the agents of the criminal justice system.’: E Sheehy, J Stubbs and J Tolmie ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ 1992 Criminal Law Journal 369, at 394.

CR Snyman ‘Two Reasons for the Existence of Private Defence and their Effect on the Rules Relating to the Defence in South Africa’ 2004 17 SACJ 178, at 189.

Ibid.

See Chapter Four, Five, Six, and Seven.

8.2 THE ELEMENTS OF SELF-DEFENCE AND RECOMMENDATIONS

FOR THE SOUTH AFRICAN LAW

8.2.1 The Attack Must Have Been Unlawful

In defining ‘unlawful’ Snyman states:

“Unlawful” means “contrary to the community’s perception of justice or equity or the legal convictions of the community.” 21 In determining an unlawful attack, the legal jurisdictions studied are ad idem that the attack is constituted not only by an actual attack but also by a threat of violence. With regard to threatening conduct, this may be either direct threats of harm or implicit behaviour signalling harm. For a battered woman, it is submitted that, at the very least, threat of harm to her physical integrity and dignity is always part of her lived reality. This experience of the battered woman has been specifically acknowledged in the South African case law in the judgment of Satchwell J in Engelbrecht. 22 In Engelbrecht Satchwell J noted emphatically that ‘the “unlawful attack” against which [the accused] defends herself or others may be one individual incident of abuse, a series of violations or an ongoing cycle of maltreatment.’ 23 The definition adopted by Satchwell accords with the definition of domestic violence contained in section 1 of the Domestic Violence Act 106 of 1998.

A question that bears consideration is the constitutional right to life and the issue of whether or not an unlawful attack against one’s person or property creates a legal entitlement for the attacked party to take the life of another in defence of his or her person or property. The question that must be clarified is whether the latter conduct is, in fact and law, not unconstitutional?

Above n18 at 195; see also CR Snyman Criminal Law (Lexis Nexis, Durban: 2008) 98.

Above n8 at 133.

[my emphasis] Ibid. In setting out this rule, Satchwell J confirmed that the court in Engelbrecht would not be relying on the battered woman syndrome as the marker for all battered women but that it would be looking independently at the nature and effects of intimate violence in evaluating the conduct of the accused.: at 133.

Section 11 of the Constitution of the Republic of South Africa, 1996 states plainly:

11 LifeEveryone has the right to life.

In establishing the rules of self-defence and the right to kill in defence of oneself, the question that has been raised is what emphasis should be placed upon the interests of the (original) aggressor? Ashworth’s response is that ‘[t]here is little to commend the view that a criminal loses all his civil rights when he commits any offence.’ 24 However, he does go on to add that ‘someone who makes a murderous attack on another must forfeit his right to life if this appears to be the only way in which the victim’s life can be preserved.’ 25 The right to life was considered in the landmark decision of Makwanyana. 26 In casu, the Constitutional Court was vested with the specific task of making a determination as to whether the death sentence was in conflict with the provisions of the Constitution. 27 At the outset, it is recognised that the court in Makwanyana was dealing particularly with the issue of capital punishment by the state and its constitutionality in light of the entrenched rights to life and dignity contained in the Bill of Rights. 28 It is this background which distinguishes the decision of the court in Makwanyana from any judgment where a life is taken in self-defence.

It is submitted, in dealing with killing in self-defence, the right to life arguments under the South African law may be argued and summarised as follows: It is clear that the Constitution, 1996 unequivocally recognises the right to life in section 11. Despite the fundamental nature of the right, section 7(3) provides for AJ Ashworth ‘Self-defence and the Right to Life’ 1975 34 Cambridge Law Journal 282, at 288.

Ibid.

Makwanyana and Another 1995 2 SACR 1 CC.

At the time, the court was called upon to interpret section 9 (and section 11) of the interim Constitution – The Republic of South Africa Constitution 200 of 1993. However, the provision of the right to life in section 9 and the ruling of the court remain apposite to the right to life as contained in section 11 of the final Constitution – The Republic of South Africa Constitution 108 of 1996.

The interim Constitution of the Republic of South Africa, 1993 – Chapter 3.

such right to be limited to the extent that such restriction may be shown to be reasonable and justifiable in an open and democratic society espousing the values of human dignity, equality and freedom. 29 In dealing with the issue of the limitation of fundamental rights, the court in Makwanyana recorded that what would be construed as reasonable and justifiable as required by the Constitutional provision would stand to be determined by weighing up the competing values and a balancing of the different interests. 30 In seeking guidance on interpreting ‘justifiable’, the court relied inter alia on the Canadian

case of Oakes in which the Supreme Court held:

… in order to meet this requirement a limitation of a Charter right had to be directed to the achievement of an objective of sufficient importance to warrant the limitation of the right in question, and that there had also to be proportionality between the limitation and such objective. 31 Thus, having clearly stated its views regarding the sanctity of life, the court also found that ‘[t]he rights vested in every person by [the Bill of Rights in] the Constitution are subject to limitation …’ 32 In dealing deliberately with selfdefence as one of the instances when such a limitation could be justifiable, the

court held that:

Self-defence is recognised by all legal systems. Where a choice has to be made between the lives of two or more people, the life of the innocent is given preference over the life of the aggressor. … To deny the innocent person the right to act in self-defence would deny that person his or her right to life. … The law solves problems such as these through the doctrine of proportionality, balancing the rights of the aggressor against the rights of the victim, and favouring the life or lives of innocents over the life or lives of the guilty. 33 The Constitution of the Republic of South Africa 108 of 1996 – section 36.

Above n26 at 43.

Above n26 at 43-44.

Above n26 at 54.

Above n26 at 55.



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