South African Criminal Law and
Battered Women Who Kill:
Discussion Document 2

by

Hallie Ludsin

Research report written for the Centre for the Study of Violence and Reconciliation, 2003.

Hallie Ludsin is a lawyer specialising in gender rights.

Acknowledgements

The CSVR wishes to thank NOVIB who provided the funding that made this study possible. We also thank Muff Andersson for editing the report.

CALS would like to thank each of the criminal law practitioners for their participation in this research and for taking time from their busy schedules to give their views on this important topic. Their input was invaluable.

Executive Summary

Battered women who kill their abusers in South Africa often face barriers to accessing criminal law defences to murder. The Centre for Applied Legal Studies of the University of the Witwatersrand (CALS) has produced this document on behalf of the Centre for the Study of the Violence and Reconciliation (CSVR) to explore the reforms necessary for women to gain access to the defences. It continues the discussion that began in Legal Defences For Battered Women Who Kill Their Abusers: Discussion Document 1. While the previous research focused on comparative law and foreign experiences with legal defences for these women, this research looks specifically at South African law and experiences.

It examines the defences to murder under South African criminal law and explores the obstacles in the path of women's access to the traditional defences to murder when they kill their abusers, particularly in non-confrontational situations. This determination will aid CALS and the CSVR in developing reform recommendations to overcome the obstacles.

Chapter 1 introduces the research, the research methodology and the list of assumptions the document makes. These are identical to those in Document 1.

Chapter 2 examines the different justification defences abused women could potentially argue against a charge of murder. Section 2.1 explains the law of self-defence in South Africa and its theoretical underpinnings. The document establishes the basis for the defence, and the interpretation of those self-defence elements to identify possible obstacles abused women who kill might encounter. The chapter gives examples of women who have attempted to access the defence and their experiences.

As part of the methodology described in the first chapter, the research engaged the help of criminal law experts. Section 2.1 describes the recommendations and comments of the experts, including whether to reform self-defence through the common law or through legislation. Section 2.1 concludes with a description of recommendations from other sources of information. Section 2.2 discusses the necessity defence as an option for abused women who kill their batterers. It describes the elements of the defence, including obstacles the women face in accessing it and any recommendations made for the reform of necessity to allow abused women to access it.

Chapter 3 considers six different excuse defences an abused woman may argue against a murder charge for killing her abuser. These include putative private defence, necessity as an excuse, non-pathological criminal incapacity and insanity. The document engages in a discussion of provocation and diminished capacity as defences, although neither defence seems to exist independently of non-pathological criminal incapacity or sentencing mitigation. The chapter raises the possibility of a new defence, putative necessity defence.

The document describes the elements of each possible defence and barriers women face when trying it. It also gives recommendations for the reform of putative private defence, provocation and non-pathological criminal incapacity.

Chapter 4 focuses on the sentencing of people convicted of murder. It discusses the definition of "substantial and compelling" in South Africa's sentencing statute, which is the standard courts consider when determining whether to mitigate a sentence. The document considers diminished capacity and provocation as mitigating factors before discussing reform recommendations for the consideration of abuse at sentencing. Finally, it discusses the treatment at the sentencing stage of the trial of abused persons who kill.

The admission of expert testimony on the effects of abuse and the social context of abuse, as well as testimony on the history of abuse between the accused and the deceased and the deceased's history of violence are the focus of Chapter 5. The chapter discusses the types of evidence abused women seek to have admitted at trial and whether there are any impediments to its admission.

Chapter 6 of the document details the general trends facing abused women who have been tried for killing their abusers. It looks at how these women and their experiences are treated by the courts and whether women are treated differently from men who kill their intimate partners.

Chapter 7 concludes with a description of recommendations for the reform of each type of defence. It includes the experiences of abused women who kill.

Contents Chapter 1: Introduction    1.1 Introduction    1.2 Methodology    1.3 Assumptions Chapter 2: Justification defences for battered women who kill    2.1 Self-Defence       2.1.1 Elements       2.1.2 Battered Women's Claims of Self-Defence       2.1.3 Comments of the Criminal Law Experts       2.1.4 Other Recommendations       2.1.5 Conclusion    2.2 Necessity       2.2.1 Elements       2.2.2 Recommendations       2.2.3 Conclusion Chapter 3: Excuse defences for battered women who kill    3.1 Putative Private Defence       3.1.1 Elements       3.1.2 Recommendations of Criminal Law Experts       3.1.3 Conclusion    3.2 Putative Necessity Defence    3.3 Provocation       3.3.1 Recommendations of Criminal Law Experts       3.3.2 Other Recommendations       3.3.3 Conclusion    3.4 Diminished Capacity    3.5 Necessity as an Excuse    3.6 Non-Pathological Criminal Incapacity       3.6.1 Elements       3.6.2 Evidence       3.6.3 Battered Women's Claims of Non-Pathological Criminal Incapacity       3.6.4 Comments of Criminal Law Experts       3.6.5 Reform Recommendations       3.6.6 Conclusion    3.7 Insanity Chapter 4: Sentencing    4.1 Substantial and Compelling    4.2 Diminished Capacity/Provocation    4.3 Abused Persons Who Kill    4.4 Reform Recommendations    4.5 Conclusion Chapter 5: Evidence    5.1 Relevance    5.2 Character Evidence    5.3 Similar Fact Evidence    5.4 Expert Evidence    5.5 Recommendations    5.6 Conclusion Chapter 6: Trends in abused women cases    6.1 Abused Women Cases in Practice    6.2 Conclusion Chapter 7: Preliminary recommendations & legislative models    7.1 Self-Defence    7.2 Putative Self-Defence    7.3 Provocation/Diminished Capacity    7.4 Sentencing    7.5 General Recommendation Chapter 8: Final recommendations    8.1 A Multi-pronged Approach       8.1.1 Litigation versus Legislative Reform       8.1.2 The Test Case       8.1.3 Locating the Test Cases       8.1.4 Locating Expert Witnesses    8.2 Training Advocates and Attorneys    8.3 Training Judges    8.4 Raising Awareness

Chapter 1: Introduction

1.1 Introduction

The CSVR commissioned this report from CALS as part of an ongoing project looking at issues involving battered women who have killed their abusers. It should be viewed as a continuation of the research that developed into Discussion Document 1: Legal Defences For Battered Women Who Kill Their Abusers. This report should be read in conjunction with Document 1 in order to gain a full understanding of the issues and reform recommendations for criminal defences for battered women who kill.

The report's purpose is to generate recommendations for gaining access to South African criminal law defences for women who kill their abusers. The report takes an in-depth look at criminal defences to murder to ascertain how much access, if any, these women have to the defences now, particularly women who have killed in non-confrontational situations (when the women were not facing immediate abuse). A non-confrontational situation includes one in which there has been a temporal break between the physical abuse and the woman's actions.

The second objective is to consider why these women have not been able to access the defences. This entails identifying the obstacles abused women encounter when arguing a defence to murder for the killing of her abuser. The report considers any problems battered women have admitting as evidence the history of abuse and social context evidence of battering during the course of their criminal trials. The document considers whether men and women charged with the murder of their intimate partners are treated differently in terms of access to the defences and, in some instances, the results of conviction.

While this research specifically highlights problems women who kill their abusers encounter within the criminal law system, it has a much broader application. It identifies the gendered viewpoint of criminal law and the difficulty women generally encounter having their experiences understood as a result. It helps identify the stereotypes and biases that apply to abused women generally.

1.2 Methodology

CALS initiated its research through a review of the criminal defences to murder as described in both South African academic literature and case law. This provided the basis for understanding the purposes of the defences, their elements as well as whether any battered women have been able to access the defences and/or argue successfully any of these defences to the charges of murder for the killing of their abusers. This review also helped determine any impediments or obstacles that confront women trying to argue these defences.

CALS researched reported case law, unreported cases located on electronic databases and battered women cases brought to the attention of the CSVR. This report does not purport to have been an exhaustive analysis of South African case law.

The second method CALS employed for this research was to interview highly regarded criminal law practitioners, including academics, criminal defence advocates and judicial officers. The purpose of interviewing them was to ensure that the research considered more than just the black letter law of criminal defences. It allowed for the research to engage with the law and to gain insight into attitudes towards these women.

CALS used the interviews to ask the criminal law experts:
(1) about the boundaries of each of the criminal defences to murder;
(2) whether battered women who have killed their abusers in non-confrontational situations could or should be able to use these defences;
(3) why they often have trouble accessing the defences (a research finding); and
(4) what the practitioner thought of the recommendations formulated in Discussion Document 1.

CALS sent letters to the High Court Judges in Cape Town and the Witwatersrand Local Division and interviewed those who responded or those who had been identified by colleagues as specialists in criminal law.¹ Based on these same recommendations, CALS contacted a few Supreme Court of Appeal and Constitutional Court judges. Ultimately, CALS interviewed six High Court judges, two Supreme Court of Appeal judges and one Constitutional Court judge.

Through this process, one of the High Court judges contacted four advocates with the Legal Aid Board to participate in the research. Judges, attorneys and academics recommended other criminal law advocates. Three participated.

Two academics interviewed for the research are leading academics in the field of criminal law and were identified on that basis. Their treatises are well regarded and often cited in court judgment. Three more academics were interviewed at the recommendation of their colleagues.

CALS also contacted the Presiding Regional President of the magistrates' courts in Gauteng and the Western Cape. The Presiding Regional President of the Western Cape felt that the magistrates who report to her would not be of much assistance on the issue of battered women who kill. Although initially the Gauteng Presiding Regional President suggested he would facilitate interviews with the magistrates who report to him, he failed to return the numerous phone calls CALS initiated to set up the meetings.²

Prior to each interview, CALS distributed a background paper that explained the purpose of the research, the social context of domestic violence in South Africa, three case studies of battered women who killed their abusers and the recommendations contained in Discussion Document 1. Each interview began with a discussion of self-defence and whether this defence was appropriate for battered women who killed their abusers, whether the law could accommodate the argument and what the expert thought of CSVR's initial recommendations. Typically, the discussions turned towards the defence of non-pathological criminal incapacity, whether it still exists and whether it is appropriate for battered women who kill their abusers in non-confrontational situations.

Because of time constraints, the interviews did not always continue beyond the first two topics. For those with more time, the interviews delved into putative self-defence, sentence mitigation and any foreseeable problems of having evidence of the past history of abuse between the woman and her abuser, the social context of battering and evidence of the effects of battering admitted before the court.

Because the questions were open-ended, the criminal law experts did not uniformly answer the same questions or discuss the same issues, as they were given the opportunity to comment on what they felt were the most important issues for the research. As a result, inferences should not be drawn from the absence of contrary opinions or criticisms in the sections of the report based on interviews with experts unless indicated in the document.

1.3 Assumptions

Through the course of this report, the document makes several assumptions that need to be addressed directly.

1. Battered women are those women who face a pattern of physical and/or psychological abuse at the hands of their intimate partner.

2. The State inadequately protects battered women. Researchers report that South African women face enormous hurdles in accessing domestic violence legislation, beginning first with unsympathetic, and often hostile, police when reporting an incident of violence.³ State prosecutors treat domestic violence allegations less seriously than other criminal complaints.⁴ Further, the State fails to provide adequate shelter and aid to battered women seeking to leave their abusive partners.

3. Women do not leave their batterers for a variety of reasons. These include economic and emotional dependence. Many feel compelled to stay for the sake of their children. Some are too afraid of how their abusive partners will react. Others lack self-esteem or suffer from the battered woman's syndrome, which makes it difficult for them to leave.

4. Separation from a batterer is full of risks. Research shows that often batterers respond violently to - and often kill - partners who try to leave them. Many batterers who kill their partners do so when their partners try to leave.⁵

5. Where there is a pattern of violence, the threat does not stop merely because the abuser is unable to abuse his partner at that moment. The threat of violence will continue as long as any relationship between the abuser and his victim continues.

6. As a result of the inadequacy of state protection for abused women and the many dangers women face in separating from their abusers, many of the women who kill their abusers have no reasonably safe alternative to that course of action.

7. Women's experiences are inadequately represented in the development and application of criminal law and defences. Once battered women react violently against their abusers, criminal law fails to provide these women with appropriate defences that recognise or appreciate their experiences with domestic violence.⁶

8. Male homicide typically involves one man killing another, where both parties are strangers.⁷ The current legal defences to murder reflect this kind of relationship. For example, self-defence developed according to the "barroom brawl" scenario – when two strangers of roughly equal size get into a fight. As will be argued below, the legal elements of a defence for self-defence reflect that scenario.⁸ By comparison, women are much more likely to kill their intimate partners, often after being abused by the deceased.⁹ The parties to the killing are not strangers, but have had a relationship for some length of time, and are typically not of equal size. The responses of women to a threat to their lives will be based on both of these characteristics, neither of which is reflected in the legal elements for self-defence. As a result, battered women who kill their abusers face large hurdles to using this defence.¹⁰

9. The goal of this research and discussion is to locate the most appropriate protection for battered women who kill abusive partners out of fear for their lives. These legal defences are vital until state responses to domestic violence make them unnecessary. This document assumes that at least some of these women deserve an acquittal for their actions, while others deserve mitigation of charges and/or sentences.

10. Admission of expert testimony on the social context and effects of domestic violence and of testimony on the history of the abusive relationship are necessary to provide battered women with a fair trial.¹¹ A woman's actions can be fairly judged only if understood in light of her experiences with the deceased and how those experiences shaped her perceptions.¹² Without this testimony, battered women have difficulty fitting their experiences into the narrow elements of traditional defences.

11. The best choice of defences will be ones that do not stereotype battered women, hold women to a lower standard of accountability than other criminal defendants or provide the batterer with new defences for killing his partner.

Chapter 2: Justification defences for battered women who kill

Before beginning a discussion of each of the criminal defences to murder that may be available to battered women who kill their abusers in non-confrontational situations, the report first considers the elements of a crime. For a court to convict an accused for the commission of a crime, the prosecution must prove that there was (1) an act or omission (2) that was unlawful, (3) that the accused voluntarily committed, and (4) for which the accused is culpable.¹³ Each of the criminal defences adopted by the South African common law negates an element of the crime. If the prosecution cannot counter an accused's defence claim, the prosecution will not have proved the element of the crime the defence targeted and the accused must be acquitted.

Keeping in mind the explanation of justification and excuse defences described in Document 1, self-defence and necessity negate a finding that the accused's conduct was unlawful. Only these defences are considered justification defences. Under South African law, an act is unlawful if it is "contrary to the community's perception of justice or equity or the legal convictions of the community."¹⁴ It is not enough to simply meet the elements of a crime as defined by statute or common law. The act is only unlawful if it is contrary to what is needed to keep "legal order" and "to the community's perception of justice or equity".¹⁵ Since the advent of South Africa's Constitution,¹⁶ individual rights, including those of bodily integrity, dignity and equality, reflect community values and "perceptions of justice and equity".¹⁷

Excuse defences target each of the other elements. If an accused suffered from non-pathological criminal incapacity or insanity, the prosecution could not prove she voluntarily committed the act. Defences to culpability, meaning whether the person had the requisite intention or acted in negligence are not specifically defined or framed as independent defences.

2.1 Self-Defence¹⁸

Self-defence developed as a tool to negate the unlawfulness of an assault or a killing in circumstances in which the accused had no choice but to ward off an unlawful attack by another person. The legal system expects a person to seek other alternatives, such as going to the police or the courts, rather than taking the law into his/her own hands. Where these alternatives are not reasonably available, such as when a person is confronted with a firearm or knife, the law permits a person to act on his/her own behalf.¹⁹

Since the development of law and order structures, such as the police, the circumstances under which a person can resort to self-help are more limited.²⁰ In his treatise, Snyman initially suggests the principles of self-defence "can be applied only in certain defined circumstances."²¹ He later states, however, that there is no reason why the defence should not be broadened to accommodate circumstances other than the ones already defined that stand on the same footing as self-defence.²² The latter approach is consistent with the Appellate Division's conclusion in S v Ntuli, 1975 (1) SA 429. Here the court declared: "In applying these formulations to the flesh-and-blood facts, the Court adopts a robust approach, not seeking to measure with nice intellectual calipers the precise bounds of legitimate self-defence."²³

2.1.1. Elements

As follows: (1) An accused used force to repel an unlawful attack (2) upon his life, bodily integrity or other protected interests. (3) The attack must have commenced, or must be imminently threatened; and (4) the defender must have reasonably believed (5) the act was necessary to protect against the attack. (6) The defensive action must be taken against the attacker (7) and must be no more harmful than necessary (proportionality).²⁴ It remains in question under South African law whether the defender is under a duty to retreat if s/he can do so safely, rather than resort to self-help. Finally, it is irrelevant whether the defendant caused or began altercation leading to the killing.

Anyone claiming self-defence must set out a foundation of facts and evidence for meeting each of these elements. Once that is successfully completed, the burden falls on the prosecution to prove beyond a reasonable doubt that the accused did not act in self-defence.²⁵ South African courts caution that anyone considering a self-defence claim "must beware of being an armchair critic".²⁶ A court must consider that "men faced in moments of crisis with a choice of alternatives are not to be judged as if they had had both time and opportunity to weigh the pros and cons. Allowance must be made for the circumstances of their position."²⁷ As will be discussed below, this relates to the reasonableness standard applied by the courts. The accused will be acquitted "if there is a reasonable possibility that he acted in self-defence, considered in the light of all the foregoing principles (elements)."²⁸

Following the format provided in Document 1, the remaining subsections describe each of the elements of self-defence as discussed in South African case law.

Unlawful act/attack
A person may use force to repel an unlawful act.²⁹ If the attack is against a lawful act, the accused cannot claim self-defence.³⁰ The unlawful act may be an omission and may not have been intentionally committed;³¹ the act may be aimed towards another person other than the defender.³² In each of these circumstances, the defender may lawfully defend him/herself against the unlawful attack.

Importantly, South African courts are willing to recognise attacks against dignity as types of acts against which a person may defend, as became evident in. R v Van Vuuren, 1961 (3) SA 305 (EC). The court concluded: "… provided that force is strictly commensurate with the requirements of restraint in the prevailing circumstances, defence against injury should include both injury to the person and dignity, for injury to the latter may be even more serious than the former and less easily remedied."³³ This may prove important to battered women who kill their abusers in non-confrontational situations as it may add weight to their claim to be defending against an act by the abuser.

From discussions with criminal law experts, it appears that battered women who kill their abusers in non-confrontational situations may have difficulty proving they were defending against an unlawful act in the absence of an immediate threat. According to several judges, a threat by itself, without evidence of the abuser's capacity to follow through, is insufficient to meet the unlawful act requirement because people threaten each other all the time and do not mean it.

To test the boundaries of this conclusion, several of the experts were asked to consider a situation in which a woman killed her husband after he physically abused her, walked away briefly and then threatened to kill her. Of the experts who responded, all stated the woman could not claim self-defence because the threat of violence had ended. They were able to avoid dealing with the husband's threat of killing the wife by reiterating that people threaten each other all the time without meaning it.

These experts then considered whether a woman could claim self-defence when the physical violence had stopped but the husband continued the psychological abuse, with no interruption. They concluded that because the violence had stopped, the woman's life was no longer in danger.

This approach to locating an unlawful attack ignores that abused women typically have sufficient experience with their abusers to know when they intend to follow through on their threats. As described by the Court of Appeals of New Mexico:

Remarks or gestures which are merely offensive or perhaps even meaningless to the general public may be understood by the abused individual as an affirmation of impending physical abuse. To require the battered person to await a blatant, deadly assault before she can act in defence of herself would not only ignore unpleasant reality, but would amount to sentencing her to 'murder by installment.'³⁴

In practice, South African criminal law provides little information about how it would treat a claim by a woman that she killed her abuser in response to an unlawful act that was not immediately apparent. From the case law, as described in section 2.1.2 below, it appears that only one accused attempted the argument. His claim failed, although the decision does not explain why.

The attitudes and responses of some of the criminal law experts, however, suggest that the law will have great difficulty finding self-defence in the absence of an overt threat or attack. The first response of approximately two-thirds of the experts interviewed was that a battered woman who killed her abuser in a non-confrontational situation could never show she was acting in self-defence, in part because she was not facing an attack or imminent threat. After some advocacy, however, nearly all the experts believed the unlawful act element could be met using evidence of a past pattern of abuse to show that the next period of abuse was inevitable. The typical example discussed during the interviews was of the man who drank to excess and then beat his wife every Friday. A consistent pattern such as this could evidence why a woman on Thursday could expect an attack on Friday.

A few of the experts said showing a pattern of abuse to meet the unlawful act element would not be enough under current law. The woman would need to show escalating violence or a threat as well. This is consistent with the approach of several of the foreign law jurisdictions examined in Document 1, which suggests this element will be a hurdle for abused women who kill their abusers to overcome.

This discussion illuminates that instinctually, practitioners do not see the threat of abuse as ongoing, but instead assume that once the physical violence has stopped, even for a moment, the threat of abuse is over. This shows a very narrow understanding of the experiences of battered women who kill and the dynamics of abusive relationships.

Death or Serious Bodily Harm
In order to justify self-defence, the defender must have been protecting "an interest which (sic) legally deserves to be protected."³⁵ Typically, self-defence involves someone protecting against physical harm. South African courts have allowed defenders to protect "property, dignity, (against an) unlawful arrest, unlawful entry into a house, attempted sodomy, trespassing and defamation."³⁶ At least one authority thinks a defender may lawfully protect her honour and reputation, in addition to dignity.³⁷

The scope of interests that may be protected under self-defence law appears much broader than the scope in other common law countries.³⁸ As Burchell described in his treatise: "our courts treat private defence casuistically and the tendency seems to be to expand rather than to limit the legal interests which (sic) a person is permitted to protect by force."³⁹

A person who uses lethal self-defence, however, needs to lay the foundation for a conclusion that s/he was protecting against death or serious injury.⁴⁰ There has been at least one case, however, in which a person successfully argued self-defence when he used lethal force to stop a thief from stealing from his store while no one was there. In the case of S v Van Wyk, the accused set up a shotgun that would fire at a person's leg if s/he broke into accused's store. He did this after going to the police for help and hiring a night watchman to guard his store. All of these efforts failed. The accused had warned the police and placed warnings about the shotgun on the store's door in English and Afrikaans. When protecting property, the court concluded, "If the use of necessary force is justified – as is the case – then it is not clear to me why deadly force must be excluded from that principle."⁴¹ Whether a person could take the life of another in defence of property under South Africa's Constitution is doubtful.⁴²

One judge explained it might be possible, although difficult, for a woman to argue she was defending her dignity when she killed her husband in a non-confrontational situation. This judge argued that under the Domestic Violence Act, the legislature widened the definition of domestic violence to include psychological harm. The courts should follow suit and recognise that a person may protect herself against psychological abuse. The judge concluded that psychological abuse limits a woman's quality of life beyond the effects of physical abuse alone. An abused woman should be entitled to protect herself against the loss of quality of life. The judge expressed concern that a proportionality requirement, which would measure whether the defensive action was proportionate with the threat of harm, may place an insurmountable obstacle to this argument.

Consistent with the analysis in Document 1, this element may prove to be a stumbling block to these women even if they are able to prove an unlawful attack. When CALS provided case studies and sample fact patterns to the criminal law experts to consider, many asked how bad the abuse had been in the past.

A few practitioners suggested that unless the woman faced grievous bodily harm or death at the hands of the abuser in the past, she could not prove she faced a threat. If the woman uses the past pattern of abuse to prove the unlawful act, this very pattern may be under scrutiny to determine whether she was likely to suffer serious bodily harm or death during the anticipated attack. This highlights an important inequity in the law. Unlike a person confronted with violence from a stranger, an abused woman is not allowed to guess right the first time whether she faces death or serious bodily harm. She could encounter death at the hands of her abuser without being allowed to defend herself under the law.

South African courts seem to apply a broader approach to when a person may use lethal self-defence to protect him/herself than the rest of the common law world. This approach, however, does not seem likely to be applied to battered women who kill their abusers.

Imminence
South Africa permits an acquittal for self-defence if the attack against which the accused was defending has commenced or was imminently threatened.⁴³ Presently, the treatises explain that a person cannot defend against an attack that will happen some time in the future,⁴⁴ seemingly because the attack might never happen.⁴⁵ Instead, the defender can take protective measures only.⁴⁶ Nor can a person defend against an attack that is already over, as that is revenge.⁴⁷ A person can defend herself against an attack that has been immediately threatened, although it has not yet begun.⁴⁸

South African courts seem to construe the imminence requirement narrowly. For example, in S v Ngomane, 1979 (3) SA 859 (A), the Appellate Division refused a claim of self-defence in part because imminence seemed to be lacking. In this case, the deceased had knocked on the accused's door to ask for cigarettes. When the accused replied that he did not have any, the deceased threatened that if the accused did not open the door, he would set the hut on fire. The deceased tied the hut door shut so the accused could not leave. The accused begged the deceased to untie the door and agreed to open it. He opened the door holding a weapon, which he used to stab the deceased as he came through the open door.

The court concluded that despite the threat immediately prior to opening the door, the accused could not prove the deceased was a threat to him after he untied the door. The court wrote:

When appellant opened the door from the inside and the deceased opened it from the outside, it should have occurred to appellant that the deceased might have changed his mind about killing him. After all, the deceased's threat stemmed from appellant's original refusal to open the door; this reason for it had now fallen away; moreover, in compliance with appellant's plea, the deceased had desisted from setting the hut alight. Besides, he also did not manifest any intention of attacking appellant; e.g., he did not repeat this previous threat of killing the appellant, nor did he rush into the hut.⁴⁹

Although the court accepted that the deceased had threatened to kill the accused just prior to the door's being opened, and despite the evidence of the deceased's willingness to carry out the threat, the court could not find an immediate threat of violence to the accused. Instead, the court expected the appellant to establish whether the deceased would have maintained an intention of violence once he walked into the hut. The court concluded, "I think the reasonable man in appellant's situation, before stabbing the deceased, would first have waited to ascertain what the deceased wanted or was going to do, either by a further enquiry of him or from his ensuing conduct."⁵⁰

This fits in with the view of the experts who could not find an unlawful act when the physical violence stopped but the psychological abuse continued without interruption. The moment the physical abuse ended, the imminent attack ended and the woman was precluded from acting in self-defence.

There has been one notable case in which a pattern of unlawful behaviour justified a finding of imminence. In S v Van Wyk, the case in which the accused rigged a shotgun to shoot at the leg of intruder, two members of the bench who heard the case wrote:

The stated case differs from ordinary cases only in that in the defence, that is the placing of the firearm, there was no immediately threatening danger that could be resisted by a defender who was present … there was however actually threatening harm by intruders which Van Wyk could expect with reasonable certainty and which he could not reasonably prevent except in absentia.

Another of the judges agreed that the setting of the firearm was reasonable, after carefully considering that the accused had tried numerous other measures to stop the theft that had failed; and that the accused had warned possible thieves of the firearm.⁵¹ Because the accused exhausted all other options and because it appeared the thief would continue to steal from the accused, the court accepted the imminence of the attack.

This case is helpful in that it shows courts are willing to consider a pattern of behaviour to determine imminence. It is distinguishable from the battered women cases, however, because the shotgun would fire only if an intruder attempted to illegally enter the premises of the accused. If the unlawful act did not occur, no one could get hurt.

Each of the criminal law practitioners identified imminence as a major obstacle for battered women who kill abusers in non-confrontational situations. Most, however, felt that if the woman could lay the foundation for the past pattern of abuse to show the inevitability of the attack, she could meet this element of the defence. They explained that this would be difficult to prove without strong advocacy and that the argument would only apply rarely to these cases.

Further, most of the experts agreed that the woman also must show the inescapability of the abuse. A woman must show she had gone to the police and they refused to help; that she tried to leave, only to be forced to return to the abuser, before she could succeed in laying a proper foundation for imminence. It is not enough to believe she could not go to the police based on other people's experiences or to believe her partner's threat to follow her wherever she went. She must try these options herself. If the woman could show an absence of reasonable alternatives in addition to the inevitability of the attack, she could meet the requirements of imminence.

Despite what appears to be some method of proving that one cannot escape abuse, the attitude of the experts suggested that in most of the non-confrontational killings cases, the woman could have left her abuser to avoid the harm. As long as flight remains an option, the experts believe the woman cannot argue self-defence.

What this approach ignores is that often women feel they cannot leave because of the threats of their abusers to follow them; or when they do leave, the abusers beat them more severely. In Kgafela, the woman's husband was a magistrate who told her again and again not to bother going to the police because no one would take action against a magistrate. Was it unreasonable for the woman to believe her husband? The experts' approach says yes. At what point do the courts force abusers to take responsibility for their own actions?

A few of the experts opined that the closer in time between the threatened violence and the defensive action, the easier it would be for a battered woman to lay the foundation for imminence. For example, if a woman feared abuse at the sight of her husband holding a squash racquet, a weapon he had used in the past to beat her, the court would be more likely to find imminence. As one advocate put it, the correct approach for the court was to consider the previous assaults in context with the present position. It would then decide whether the state had proved beyond a reasonable doubt that the present action (of the husband) was not about to become a repetition of his past actions.

This same advocate argued that if one considered the reasonableness of the woman's actions in the light of principles of fairness and community views, imminence should not be a stumbling block to a claim for self-defence for a battered woman who killed her abuser in a non-confrontational situation. He argued that if the court first considered whether the woman's action was wrong, it might better understand the question of imminence. The question becomes, based on fairness, public policy and the legal convictions of the community, if the battered woman was unreasonable in believing she was defending herself against an imminent attack? If not, then her action would not be illegal.

One academic and one advocate argued that it would be impossible for a battered woman who kills her abuser in a non-confrontational situation to prove she faced an imminent attack, and that at present this was appropriate because without an imminent attack, the unlawful act is merely speculative. Both reached this conclusion even when met with a factual situation in which a battered woman hired a killer after the police refused to help her stop the abuse. The woman had made repeated attempts to flee to her mother's home, where the abuser always found her and threatened her until she returned home. The two experts did not find the absence of alternatives a persuasive argument for proving imminence, in part because the woman could seek an urgent interdict to keep the abuser away from her.

The approach of the academic and the advocate assumes the woman lives near enough to a court to be able to seek an urgent interdict and that she has the resources to approach a court for an interdict. It also ignores that interdicts require enforcement by the police, which, as the example shows, may not happen, as police are often unwilling to help abused women.⁵² Further, the belief that an attack is merely speculative until it is imminently threatened ignores the experiences of abused women. A woman who is beaten every day or every Friday knows the attack is more than mere speculation.

Consistent with the findings in other jurisdictions, battered women who kill in non-confrontational situations will have great difficulty meeting the imminence element of self-defence unless the understanding of what is imminent changes (as it has in many foreign jurisdictions). The experts generally agree that if the woman can show the inevitability and inescapability of the abuse, she could jump this hurdle. They require her to try every other option first, however, rather than take on faith that the police will not help or that her partner means it when he says he will find her if she leaves.

Reasonableness
An accused claiming self-defence must have had a reasonable belief that self-help was necessary.⁵³ South Africa has chosen to use the first variety of a mixed subjective-objective reasonable test as described in Document 1.⁵⁴ Under this test, an accused must lay the foundation and the prosecution must disprove her actions were reasonable in her circumstances. The court must consider reasonableness based on what the accused knows and sees.⁵⁵ For self-defence the court must establish that the accused believed she was acting lawfully, a subjective element, and that the circumstances justify that belief, an objective element. In determining the reasonableness of the accused's behaviour:⁵⁶

Our courts have always insisted … that they must be careful to avoid the role of armchair critic wise after the event, weighing the matter in the secluded security of the courtroom, by putting themselves in the position of the accused at the time of the attack.⁵⁷

For example, in R v Patel 1959 (3) SA 121,123 (A), the Appellate Division considered a case in which the accused and the deceased had argued over whether the accused should return the deceased's jacket, which he was holding as collateral on a loan. The accused forced the deceased out of the store. The deceased later returned and started beating the accused's brother with a hammer. The accused shot the deceased. Quoting Gardiner and Lansdown,⁵⁸ the court concluded:

The danger may in truth not have been great, but the jury must consider whether a reasonable man, in the circumstances in which the accused was placed could have thought that he was in great danger. A weapon less dangerous than the one used may have been at hand (sic) which would have sufficed to ward off the threatened assault but the jury must not expect too nice a discrimination or too careful a choice of weapons from a man called upon in a sudden emergency to act promptly and without opportunity for reflection.⁵⁹

Particularly helpful to battered women who kill their abusers is that the decision gives courts wide latitude to determine the reasonableness of their responses.

One advocate argued that one must keep in mind that reasonableness includes the concepts of fairness and justice and is based on policy considerations, as well as the legal convictions of the community. Accordingly, if battered women who kill in non-confrontational situations keep these notions at the forefront of their argument, they will have a better chance at proving that the fear necessitating the killing was reasonable.

Despite this, few experts suggested that women's experiences would be included in the determination of reasonableness. Because of the belief that women can always leave their abusers, several experts felt it was unreasonable for the women to believe they needed to defend themselves with lethal force in non-confrontational situations. As described in Document 1, a belief that a woman is able to leave is a misconception. There is evidence that several of the experts interviewed for this research do not understand the experiences of battered women.

Further, the standard of reasonableness applied by these practitioners is gendered in application. The approach ignores that reasonableness must include the circumstances of the abused woman. As the Supreme Court of Canada wrote, referring to an earlier precedent from the court,

… The majority of the Court in Lavallee also implicitly accepted that women's experiences and perspectives may be different from the experiences and perspectives of men. It accepted that a woman's perception of what is reasonable is influenced by her gender, as well as by her individual experience, and both are relevant to the legal inquiry … . More importantly, a majority of the Court accepted that the perspectives of women, which have historically been ignored, must now equally inform the 'objective' standard of the reasonable person in relation to self- defence.⁶⁰

In Document 1, the CSVR recommends this mixed subjective-objective reasonableness test for reasons described therein.

Defensive Act Necessary to Protect Interest
The element that the defensive act must be necessary to protect the threatened interest is not explicitly required in self-defence statutes or the common law in the countries considered in Document 1. Typically, courts in other jurisdictions use the element of imminence to prove the necessity of the act in protecting against bodily harm or death. But South Africa chooses to state explicitly what imminence implicitly does.

What this element requires is evidence that the accused had no other alternatives to stop the unlawful attack but to take defensive action.⁶¹ Burchell explains that this requirement "does not mean that a person cannot act in defence if he could later obtain adequate relief by the legal process because the latter could not achieve the same result as defence, namely the warding off of an attack."⁶²

It is possible that adding the explicit requirement of proving it was necessary to act may make self-defence more burdensome. It may require the accused to attempt to exhaust all other alternatives to self-help, including options that may be dangerous or pointless.

For identical reasons to those contained in the imminence section, proving necessity may be difficult for women who kill their abusers in non-confrontational situations. In terms of reform, inclusion of this specific necessity requirement may prove beneficial. Any codification could strike imminence as a requirement and leave this element to serve as the basis for self-defence. Document 1 contains a similar recommendation.

Proportionality
South African case law requires that a person use no more force than is necessary to stop an unlawful attack.⁶³ However, Snyman argues: "only if there is an extreme discrepancy between the threatened and protected interest, does the right to act in private defence fall away."⁶⁴ This position seems to stem from the discussion by courts that they cannot be armchair critics deciding from the security of a courtroom the reasonableness of the defensive action or, in turn, the proportionality of the defence to the threatened attack. As the Appellate Division wrote, "… men faced in moments of crisis with a choice of alternatives are not to be judged as if they had both time and opportunity to weigh the pros and cons. Allowance must be made for the circumstance of their position."⁶⁵

This proportionality test may open doors for battered women to more easily access this defence. Battered women who kill their abusers may be in a better position to use this defence than their counterparts in foreign jurisdictions, where the fact that the woman used a firearm to defend against her abuser's fists has justified finding no proportionality.⁶⁶

In his treatise, Burchell discusses the Van Wyk decision, which clarified that courts cannot determine proportionality "based on equality of the weapons of the two parties and seems to imply disapproval of the sole test being whether the means used were commensurate with the danger apprehended."⁶⁷ The court in Van Wyk wrote:

Proportionality will not do as a general basis for private defence. One who invades another's rights, who defiantly ignores the prohibition, warning and resistance of the right-holder so that he can only be prevented by the most extreme measures, can with good reason be seen as the author of his own misfortune. It is he who is the outlaw, and if he is prepared to risk death in violating another's rights, why should the defender, who is unquestionably entitled to protect his rights, be viewed as … acting unlawfully if he uses deadly force rather than sacrifice his rights?⁶⁸

If this case serves as the basis for concluding that there is a less than strict proportionality test, what happens if the case is called into question because the right to life under the Constitution must outweigh property rights? Fortunately, the proposition that the "weapons used by the attacker and the defendant need not be commensurate" has been upheld in other cases.⁶⁹

Despite what appears to be less than a strict standard of proportionality, many experts expressed concern about whether battered women who kill in non-confrontational situations could successfully meet this requirement, particularly since the woman is responding with force against a passive attacker. In reaching their conclusion, practitioners seem to ignore the ongoing threat of abuse that exists in abusive relationships. Some women may be capable of defending themselves only when the attacker is passive. The experts also overlook the physical strength difference that typically exists between men and women and that these women are terrified of their abusers, knowing they can inflict harm on them at will; all of which causes them to act in non-confrontational situations.

Considering the conclusion of the experts, the proportionality element remains a barrier to an argument of self-defence for battered women who kill their abusers.

Defensive Act must be Directed at the Attacker
This element is not explicitly included in the self-defence statutes and common law in the foreign jurisdictions, although implicitly it exists. Under this element, the defender must act against the attacker and not another party; otherwise the defence would be one of necessity, not self-defence.⁷⁰

A Duty to Flee?
South African courts have not answered decisively whether a person must flee an attack, where s/he can do so safely, before acting in self-defence.⁷¹ Taking the question one step further, is a person required to flee from her home if she can do so safely? These issues are directly related to the question of whether the accused had any other available alternatives but self-help, which directly relates to whether the defensive act was necessary.

Snyman argues that no such duty should exist, as "[a] duty to flee is a negation of the whole essence of private defence. Private defence deals with the defence of the legal order that is the upholding of justice. Fleeing is no defence, but a capitulation to injustice."⁷² Furthermore, he believes that the law should not require anyone to flee from her home.⁷³ Snyman concludes by arguing that whether a duty to flee exists is purely academic because the courts typically ask only whether a person was entitled to defend herself.⁷⁴

Burchell takes a contrary view, stating: "Where the threat is one of personal injury the obvious possible way of avoiding the attack is to flee. Thus, if the harm can be avoided by flight the accused should flee."⁷⁵ He qualifies this statement, however, by pointing out that courts should be careful when enforcing this duty because "a person faced with a sudden attack" may not realise the possibility of fleeing.⁷⁶ Furthermore a person should not be required to flee if it would be dangerous for her to do so.⁷⁷

At least one court has required an abused woman to flee her home rather than take defensive action. In Nape v State, CC67/97 (on file with CSVR), the lower court wrote:

The accused had a wide range of options open to her at the time of the commission of the offence, such as removing the firearm from where it was placed, going away from the house together with the children even if it was late. Nothing could be more risky than staying in a house where somebody was threatening to use a firearm against you. She could also have reported the deceased's threats either to the neighbours, the relatives or to the police.

The Supreme Court of Appeal seems to support this view when it determined that an intelligent woman should have known she had options other than killing her abuser. The implication is that having an education meant she could simply walk away from the abuse.⁷⁸

These decisions suggest that regardless of a general duty to flee an attack, abused women have a special duty to retreat that does not exist for other people facing threats to their lives. Neither court suggested that the threat to the woman was non-existent. Instead, their response was that in the face of a threat, the woman must flee.

One judge supports this view. He explained that a woman must leave the home if it would stop the abusive situation. If she could flee safely, she could not prove an absence of reasonable alternatives. This approach seems implicit in the discussion amongst nearly all practitioners, as most felt that a woman could prove self-defence only if she could show that the police were unhelpful and the abuser would not allow her to leave.

Even to the extent that other defenders do not have a duty to flee, one advocate expressed the view that the requirement for battered women who kill in non-confrontational situations will remain. He explained that in an appeal of one of these cases, one of the first questions the court asked him was why the woman did not divorce the deceased, rather than kill him. Again, this advocate's conclusion places a burden on abused women that may not exist for other defendants.

One academic voiced the opinion that a woman can always leave the relationship, even if it requires her to go into hiding to avoid her abuser. He believes this approach is consistent with a witness protection programme where a witness who fears for her life goes into hiding rather than take the life of the person who might be threatening her.

Finally, another academic reached a very different conclusion, stating that under criminal law, no one has a duty to flee from her home.

To the extent a duty to retreat from one's home exists, South Africa is in the minority of common law jurisdictions considered in this research. Secondly, based on experience and the suggestions of other academics, even if South Africa does not have a duty to retreat, one would be applied to abused women who kill. This places an unfair burden on an abused woman, particularly since it is based on the assumption that a woman can leave her abuser. It fails to reflect the danger women face when they leave their abusers; it further fails to reflect that fleeing in the middle of the night, never to return, is highly unrealistic. It shows a lack of understanding of the experiences of abused women and evidences the gendered application of the criminal law.

2.1.2 Battered Women's Claims of Self-Defence

CALS has been unable to locate any cases in which a battered woman who killed in a non-confrontational situation argued self-defence. Considering the interviews with the criminal law experts, this is not surprising.

CALS found two cases that may be relevant to this analysis, although the accused in one did not argue self-defence. In the first of the two cases, S v Shapiro, 1994 (1) SACR 112 (A), the accused killed a drug dealer who threatened the life of his fiancée. The couple had been friends with the drug dealer for a period of time when the dealer began accusing the fiancée of having stolen cocaine from him. The dealer threatened the fiancée's life several times. The couple feared the dealer, as he had a reputation for violence when he felt he had been wronged and was a "monster" when abusing cocaine, which was the case prior to his death.

Over the ten days prior to his death, the dealer threatened the fiancée with death on no less than three occasions. Once he slapped her, and on another occasion, he "attacked her". The fiancée was intending to leave for Israel to avoid the dealer. The day before she left, the dealer came to her home and choked her until the building manager came by. The dealer threatened to kill her if she did not return the cocaine. At the same time, the dealer told the fiancée he had just shot his wife and intended to shoot his mother-in-law.

Upon hearing of the event, the accused came home. His fiancée was crying hysterically and he saw the marks on her neck from being choked. He grabbed a firearm, drove to the dealer's and shot him. He said he feared the dealer wanted to kill his fiancée and felt the most recent incident confirmed those fears.

The High Court rejected the accused's claim of private defence and putative private defence, concluding, "… it is our view that this was not an instance of private defence but an instance of private execution."⁷⁹ With respect to sentencing, the court stated: "You have taken the law into your own hands with grave consequences. That is something which (sic) this Court may not condone and which society cannot tolerate. Persons who do that must realise that their actions will be severely censured by the courts."⁸⁰

Ultimately, the High Court convicted the accused of murder with diminished capacity serving as a mitigating factor. The accused received a seven-year sentence of imprisonment, four of which were suspended. The Appellate Division upheld the sentence.

Several of the experts said the reason private defence and putative private defence failed in this case was that the accused and the fiancée never tried to use formal channels such as the police to solve the problem with the dealer.

Although not argued as a self-defence case, S v Campher, 1987 (1) SA 940 (A), fits within the types of cases that should be seen as self-defence. The husband had been abusing the wife for nine months. On a particular day, he had been physically abusive, at which point the accused took a firearm and threatened to kill him if he did not stop. He became emotionally abusive, forcing her to help him drill a hole in a lock. When the hole came out crooked, the husband forced his wife onto her knees to pray that the hole straightened out. At that point, she had the firearm close at hand and shot him. The three members of the bench who heard the trial did not agree on their conclusions. Ultimately, the accused was convicted of murder with extenuating circumstances.

What is unclear is why the court did not see the emotional abuse, coupled with an implicit threat that if the hole did not magically straighten, the husband would continue to abuse her, as an unlawful act against which she was defending herself. The wife had already threatened her husband with a firearm to get him to stop abusing her.

These cases highlight the reluctance of courts to find self-defence when a person is confronted with anything but an immediate attack. They evidence the difficulty of proving imminence, although the threat of a future attack in both cases was more than speculative. They also highlight that the courts view each attack individually, rather than as part of a continuing threat. This greatly disadvantages accused women's attempts to argue defences as it misunderstands the nature of abusive relationships. The decisions also ignore the cumulative effect of the fear these women (and those protecting them) experience through each incident of abuse.

2.1.3 Comments of the Criminal Law Experts

The report notes that a few of the criminal law experts recognise the inherent gender bias in criminal law defences. One judge explained that the criminal justice system is manifestly unfair to women since many battered women have not been able to resort to extra-legal remedies to the same extent as men. Overall, the judge believes the criminal justice system was developed by men for men, with more of an understanding of heat of passion reactions than for the way in which women think and work. The judge argued that women are socialised to think through their actions more than men are. Criminal defences do not recognise that some women will plan how to defend themselves.

Another judge stated the problem differently. He believes judges need to understand that the law has not always developed in a manner sensitive to the problems experienced by marginalised and oppressed sections of society.

Furthermore, most of the criminal law experts recognised that women have great difficulties accessing the legal remedies provided by the Domestic Violence Act and that the police are often unwilling to intervene in domestic violence. Because of this, one judge suggested that legislation would do little to change women's situations in the absence of societal and attitudinal change.

Unfortunately, the majority of practitioners interviewed started the discussions from the premise that unless a woman successfully argues non-pathological criminal incapacity, she could not benefit from criminal defence law. Instead, she needed to have the abuse considered in mitigation of sentence. The premise changed only after often lengthy discussions of the problems women have accessing formal channels to stop the abuse, as well as the real experiences with violence and the problems women face leaving abusive relationships. Without this context, most would not have even begun to consider any other defences for battered women who kill their abusers in non-confrontational situations.

2.1.3.1 Development of the Common Law or Statutory Reform?

Most of the criminal law experts believe that the common law defence of self-defence is wide enough to include battered women who kill in non-confrontational situations. Most believe that with proper advocacy and evidence, a woman could succeed on a claim of self-defence. Much would depend on the woman's convincing the court of her fear and reasons for not leaving. If the right case is brought to the courts, one in which a battered woman tried to leave but was dragged back into the situation and in which she tried to go to the police but the police failed to do anything, then the courts should find self-defence. Several advocates explained that the problem is that no one has tried to make the argument.

Several of the criminal law experts felt that a major obstacle to battered women's claims to self-defence lies in poor advocacy and a lack of proper social context and psychological/psychiatric evidence, rather than the framing of the elements of the defence. To ensure the credibility of the social context evidence and the psychological evidence, four advocates believe the best strategy is for the woman's expert to testify only after hearing all the evidence. This protects the witness from the suggestion that s/he only relied on the woman's statements when assessing her psychology, rather than the objective facts. Thus, with the proper use of evidence, self-defence reform could be unnecessary.

One judge emphasised the above conclusions. Based on his experience in hearing domestic violence cases, the judge has rarely seen proper arguments and proper evidence of a pattern of abuse put before the court. Further, he believes there are insufficient experts who are sensitive to the pattern of abuse to be able to explain why the abuse is predictable and inevitable.

Although nearly all the criminal law experts thought these battered women could argue self-defence under the common law, the majority recommended statutory reform. One academic added that since the CSVR is seeking a large reform of the defence, the reform should fall within the province of the legislature. A judge further expressed the fear that relying on a common law reform through case law could be problematic if more conservative judges hear the cases and important evidence surrounding the social context of battering is not presented. This point was highlighted by one judge who said he would not expand the common law definition of imminence, which would be necessary to open self-defence to these women, for fear of setting precedent that would open the door to abuse of the defence.

An advocate strongly argued that legislation is not only unnecessary but could open the floodgates to spurious claims.

2.1.3.2 Recommendations of Criminal Law Experts

General Comment
One judge and one academic questioned the CSVR recommendations in Document 1 on the basis that many of these reforms already exist under South African common law.⁸¹

Reform of Unlawful Act Requirement
One judge expressed concern about the type of behaviour that would justify killing the abuser under the recommended statute. He asked whether a woman could kill her abuser for sexual abuse and rape, a proposition with which he does not agree because of the importance of the right to life protected by the Constitution.

Reform of Imminence
Two judges were concerned that the self-defence statute recommendation in Document 1 was too broad. One of the judges would rather see a statute that catches the essence of the problem these women have accessing self-defence, focusing on the elimination of the requirement of an imminent attack. He thought South Africa could follow Canada's lead by eliminating an imminence requirement to allow access to a defence where the person could show she had no reasonable alternative to killing her abuser, even in the absence of an imminent threat. However, a different judge concluded that South Africa should not follow the Canadian approach because of the social context differences between the two countries, particularly with respect to crime. This judge does not account for the fact that spousal killing occurs in both countries.

Regarding the suggested reform to remove the imminence requirement that presently exists in self-defence, one judge warned against a shift towards allowing the proportionality requirement to then exclude these women.

Reform of Duty to Retreat
One judge concluded that if the reform seeks to end a duty to retreat, it should apply to victims of domestic violence only.

Create a Modified Necessity Defence
One academic proposed creating a statute that recognises an alternative form of necessity, where one can prove the absence of available alternatives even where there is no imminent attack and that an attack is inevitable, which would allow a person to resort to self-help.

Create a Victim's Defence
Three judges and an advocate recommended creating a specific victim's defence specifically for victims of domestic violence. According to two of the judges, the legislation must explicitly exclude imminence as a requirement of the defence. One of the judges would qualify the defence by requiring that the woman exhausted all remedies before relying on the statute. Another judge felt that the statute must specifically include the different types of evidence necessary to prove private defence in a non-confrontational situation. Should a special victims defence be created, one advocate suggested that women who hire killers should not be allowed to use the defence.

Finally, one advocate suggested creating a separate defence based on battered women's syndrome.

Develop a Common Law Victim's Defence
Using the common law, one judge recommended that instead of trying to pigeonhole battered women who kill in non-confrontational situations into self-defence, the advocate should frame the argument as a victim's defence based on self-preservation. He believed this was possible under the common law because of the compelling facts. The judge then explained the self-preservation argument based on the scenario in which the woman tried to go to the police, who were unhelpful. She tried to leave the abuser, but he followed her. All of this would show that she had no escape from inevitable abuse. If the advocate focuses on the facts and on the argument of self-preservation, rather than self-defence, the woman could be acquitted.

General Recommendation
One judge was concerned to ensure that the reforms did not allow more people to resort to self-help rather than require them to seek institutional protections. He was concerned that shifting reliance away from institutional protection would allow people to justify killing more easily. This recommendation assumed that adequate institutional support for abused women already exists.

Conclusion
Overall, a narrow majority of the experts advocated for statutory reform of self-defence to open access to battered women who kill. Within this majority, most proposed a separate victim's defence. Nearly all the experts warned that any statute must be narrowly tailored to ensure that it is not opened to spurious claims of self-defence.

2.1.3.3 Responses of Criminal Law Experts to Women who Hire Third-Party Killers

A segment of battered women who kill in non-confrontational situations contract the killings with third parties. Several of the experts commented on this phenomenon. One academic felt 'contract killing' cases would be the least likely to succeed on a claim of self-defence. A judge and two advocates suggested that if the woman could take the trouble to plan the murder, it would be hard to find that she had no alternatives to protect herself.

Two advocates and two judges think it may still be possible to argue self-defence even if a woman hired a third-party killer but it will be very difficult. If the court believes the woman needed to strike pre-emptively to stop her abuser from causing severe bodily harm or death, in theory it should not matter whether she used a contract killer as her weapon.

Finally, two experts suggested that such a defence would be impossible if the woman hired a killer. As a judge explained, third-party killer cases are classically self-help cases; they are "so coldly self-help" that they "stick in most people's throats".

2.1.4 Other Recommendations

In addition to the reform recommendations described by the criminal law experts and contained in Chapter 3 of Document 1, CALS located a different recommendation for the reform of self-defence. Andrew Paizes argues that self-defence should have two prongs to its inquiry: "the first is whether you are, in law, entitled to inflict on your assailant the harm in question in order to prevent harm being done to you, and the second is whether, if in fact you were not entitled to do so, you can be blamed for having acted the way you have."⁸² If a reasonable person had acted in the same manner as the accused, regardless of whether the action was unlawful, the person could not have had the requisite mens rea (criminal intent) to commit the crime and could also not have acted negligently; therefore s/he must be acquitted. This approach is consistent with the legal principles of the defence of compulsion described later in section 3.5.

2.1.5 Conclusion

The consensus of criminal law experts and the review of the case law suggest that although it may be possible for a woman who killed her abuser to argue self-defence under the common law, these cases will be difficult. There are some experts who feel it was unnecessary to develop statutory reform to include these women into self-defence, as the law is sufficiently broad. A closer examination of the application of self-defence in the case law and of the opinions of the experts suggest that in reality most of the elements of self-defence present major obstacles for battered women who kill their abusers in non-confrontational situations. Much of this seems to stem from the belief that an abused woman can always safely leave the abusive situation and from an overall lack of understanding of these women's experiences.

Further, the majority of experts recommend that advocates of these women must embark on a statutory law reform process, favouring the creation of a separate victim's defence statute.

2.2 Necessity

Criminal accused also use the necessity defence to negate the element of unlawfulness the prosecution is required to prove before a person can be convicted of a crime. As described in Chapter 5 of Document 1, courts developed the necessity defence to deal with situations in which people protect themselves, others or their interests through unlawful behaviour from harm caused by lawful conduct.⁸³ The courts give people the choice of the lesser of two evils – having their interests infringed by a lawful act or acting unlawfully.⁸⁴ A successful defence of necessity means that violating the law is less bad, and therefore more justifiable, than allowing the expected harm to occur.

In his treatise, Burchell explains the necessity defence in the light of criminal punishment goals. He notes that punishing someone who acted out of necessity serves no useful goal. Using a utilitarian argument, it would be better for society if the person actually chose the lesser of two evil choices. It would be seemingly unjust to punish someone for making a reasonable choice. Nor would the deterrent theory work because the defence assumes a person weighed the options before making a choice.⁸⁵

The purpose of considering the necessity defence is twofold. First, Document 1 (section 5.3) examines recommendations for reforming the necessity defence to open it to battered women who kill their abusers in non-confrontational situations. Proponents argue that if the woman can show her action is necessary – based on evidence that the abuse is inevitable and inescapable – she should be allowed to access this justification defence. They hope it will allow a woman to respond to her abuser when defensive action becomes necessary, even in the absence of an imminent threat or attack. The second reason the defence is included in this document is that it is a defence to murder in very limited circumstances.

2.2.1 Elements

An accused must provide a foundation for each of the following elements:

• Her act must have been to protect a legally recognised interest;
• She was in danger from a threat of harm other than from unlawful conduct;
• This threat had begun or was imminent;
• The harm could not be stopped in any other way;
• The person must not be legally required to submit to the harm;
• The protective act must not be out of proportion with the harm expected;
• The accused must have acted reasonably.⁸⁶

Courts apply the elements of the defence of necessity strictly and narrowly.⁸⁷ In his treatise, Snyman suggests this is because the defence is harder to justify on ethical grounds.⁸⁸ Whereas self-defence allows you to protect yourself from an unlawful attack, necessity allows you to protect your interests against lawful behaviour.

It is unclear whether courts allow an accused to argue this defence even if s/he created the necessity. Snyman suggests they should allow for the argument or else it "would mean that because of X's carelessness, her baby swallowed an overdose of pills, X would not be allowed to exceed the speed limit while rushing the baby to the hospital, but would have to resign herself to the child's dying."⁸⁹ However, the court in S v Kibi, 1978 (4) SA 173 (EC) seems to have added the element that the threat must not have been caused by the accused.⁹⁰

Legally recognised interest
To use the necessity defence, an accused must lay the foundation that s/he was protecting a legally recognised interest when s/he acted. There appear to be no specific limitations on the types of legally recognised interests that can justify a necessity claim. In their respective treatises, Snyman and Burchell recommend that in addition to the legal interests of life, bodily integrity and property,⁹¹ a person may protect against attacks on dignity, freedom and chastity (or such interests of another).⁹² An accused, however, cannot use the defence if the legally recognised interest is purely economic.⁹³

South African courts would probably have difficulty locating the act against which the accused was defending when a battered woman kills her abuser in a non-confrontational situation. The necessity defence is interpreted much the same as self-defence, which means the problems women face meeting the element of an act under self-defence will exist under necessity.

Threat of harm
A person who acts under necessity must be responding to some threat of harm. There are no specific requirements for what or who must have precipitated the harm, meaning "It is immaterial whether the threat of harm takes the form of compulsion by a human being or emanates for a non-human agency such as force of circumstances."⁹⁴

Despite this inclusive approach, the main barrier to abused women who wish to use this defence is that its purpose is not to allow a person to respond to an unlawful attack by another individual, but to allow her to respond to a threat to her interests from another source. As the Appellate Division wrote in S v Goliath:

In our legal system a distinction is drawn between self-defence and necessity as grounds which (sic) exclude punishment. In the case of self-defence a person acts to avert an unlawful attack made on his rights by another person. In the case of necessity a person infringes upon the rights of another under force of circumstances which (sic) are created by forces of nature or a third person.⁹⁵

Because the threat of harm must come from something other than an unlawful act, battered women who kill their abusers cannot argue this defence.

Interestingly, unlike most of the comparative law jurisdictions that do not recognise a defence of necessity to murder, South Africa provides more opportunity for a person to argue that his/her interest in life outweighs the interests in life of another. If this defence was reformed to allow a person to act in necessity, even against an unlawful attack, this difference could allow access to the defence to battered women who kill their abusers in non-confrontational situations. This would allow courts to recognise the domestic violence victim's interest in life outweighs the abuser's interest in life when the abuser is threatening the victim's life.

Imminence
Like self-defence, the necessity defence requires that the threatened harm be imminent – meaning that it must be immediately threatened or have already occurred, but not yet have been concluded.⁹⁶ The court in S v Mtwetwa explained imminence differently: "The question of the imminence of the threat relates to the probability of it being put into effect and the means available to the accused to avert the harm with which he had been threatened." This language could be particularly helpful to battered women who could use evidence of a pattern of abuse to show the probability of harm and, depending on the circumstances, may be able to show she had no alternative.

Despite the helpful language in the Mtwetwa decision, the Kibi decision seems likely to inhibit the use of the necessity defence for battered women who kill in non-confrontational situations. In Kibi, the court required an explicit, continuing threat to justify the imminence element of the defence. The Kibi court concluded that the accused did not meet this element when he argued that the reason he lied in his testimony was that he was being tortured into doing so. The accused explained that he had been tortured and persistently interrogated on 24 October 1977 and out of fear of more of such treatment, he lied in his testimony to court in the following days. The court concluded: "Whatever misgivings the assaults on 24 October 1977 might have had on the appellant it was not alleged that there were any further assaults during the next ensuing 11 days."⁹⁷

In the Kibi decision, without an explicit, on-going threat, the court was not convinced the accused acted out of necessity.⁹⁸ This reading of imminence would prove problematic for abused women who understand the ongoing implicit threat where no explicit threat exists.

The decision in S v Mandela, 2001 (1) SACR 156 (C) seems to further inhibit a wider view of the definition of imminence. In Mandela, the accused argued compulsion as a defence to murder after he was told that if he did not kill an acquaintance the next day, he would be killed. The court accepted the threat existed but could not locate imminence.⁹⁹ The court was not convinced that the accused could not have found a different solution to deal with the threat before it would be carried out the following day.

The Mandela judgment leaves open the question of whether the accused could have successfully defended against a charge of murder had he gone to the police for help and the police did nothing. Based on the interviews with the criminal experts, however, even that might not be enough for a court to conclude there were not other solutions. Nearly all the experts stated that a battered woman must attempt to leave her abuser before she could claim no other alternatives were open to her. Following this line of reasoning, the accused in Mandela must have tried to leave and to go to the police, unsuccessfully, before he could have argued necessity.

As in self-defence, the imminence requirement creates an enormous barrier to the defence of necessity (assuming the defence was reformed to allow a person to respond to an unlawful attack.)

No other option
The defence of necessity requires the accused to provide a foundation to meet the element that s/he had no less harmful option than the course s/he took to defend the legally recognised interest. As seen in the above section as well as in Document 1, the elements of imminence and no other option are directly related, as courts use imminence to explain the lack of alternatives.

With respect to abused women who kill, many of the criminal law experts believe an abused woman always has the option of leaving her abuser, particularly if she killed during a non-confrontational situation, which would exclude these women from the defence.

Proportionality
The proportionality requirement of this defence is a large obstacle for many accused. The accused must literally choose the lesser of the two evils – or choose to infringe the lesser interest to benefit from the defence. This requires the courts to weigh the two interests that conflict.¹⁰⁰

Importantly, in very limited circumstances, South African courts have allowed a person to argue necessity when s/he was given a choice to kill another person or to be killed. These cases are referred to as compulsion cases, several of which have already been described.

Reasonableness
The reasonableness standard for necessity is identical to the standard for self-defence. Reasonableness will be determined based on a reasonable person in the same circumstances as the accused at the time s/he acted.¹⁰¹ In his treatise, Burchell defined the test as: "whether, in all the circumstances, a reasonable person would be expected to resist the threat."¹⁰²

As the necessity defence exists now, reasonableness remains an obstacle for battered women who kill their abusers. Based on discussions with criminal law experts, many people believe that women who kill in non-confrontational situations cannot be acting reasonably. For the reasons described previously, this conclusion shows that many people do not understand the experiences of abused women.

2.2.2 Recommendations

Reform recommendations for battered women who kill their abusers within the defence of necessity are described fully in section 5.3 of Document 1.

2.2.3 Conclusion

Those who suggest using the necessity defence for battered women who kill their abusers hoped the defence would allow for a broader definition of necessity, excluding a temporal requirement of imminence. Even to the extent a court may adopt the Mtwetwa approach to imminence, courts will have a difficult time allowing a person to defend against an unlawful attacker under necessity, when theoretically the act belongs under self-defence. The defence would need to undergo many reforms, including to the theoretical underpinnings of the defence, before it could be used for battered women who kill; this is the same conclusion reached in Chapter 5 of Document 1.

Chapter 3: Excuse defences for battered women who kill

3.1 Putative Private Defence

Putative private defence applies to those situations in which a person mistakenly believed s/he was acting in private defence.¹⁰³ It negates the mens rea element of intention the prosecution is required to prove before a court will convict an accused of murder.¹⁰⁴ Because s/he thought she was acting lawfully, a court cannot conclude s/he intended to act unlawfully.¹⁰⁵ An accused that succeeds with this defence will not be convicted of murder, but could be convicted of culpable homicide.¹⁰⁶ It is for this reason that it is a partial defence, not a full defence.

Once the charges are reduced to culpable homicide, if a prosecutor proves beyond a reasonable doubt the accused was negligent in believing s/he was acting lawfully, s/he could be convicted; if not, s/he will be acquitted of both murder and culpable homicide charges. Stated differently, "The issue would be whether a reasonable man in the same circumstances as X, and given X's capacities and knowledge, would have believed that he was legally entitled to kill Y. If the reasonable man would not have made the mistake X made, X would have the mens rea of culpable homicide."¹⁰⁷

3.1.1 Elements

Putative private defence requires a person to honestly believe s/he was acting in private defence, but that the person either: (1) mistakenly held that belief; or (2) exceeded the bounds of private defence.¹⁰⁸

Honest Belief
The most important requirement of putative private defence is that the accused honestly believed s/he was acting in private defence. An accused who is aware that s/he is acting unlawfully, or foresees that s/he could be acting unlawfully, including by being aware or foreseeing that s/he may be exceeding the bounds of private defence, cannot meet the elements of this defence and can be convicted of murder.¹⁰⁹

The test for determining whether an accused held an honest belief s/he was acting in private defence is subjective.¹¹⁰ According to the criminal law experts, however, in testing the credibility of the accused, and therefore his/her honest belief, the court will consider whether a reasonable person would have held that belief. The more unreasonable the accused's claimed honest belief, the less likely the court will consider him/her to be credible.

Two criminal law experts believe this credibility test could limit battered women's access to putative self-defence. As one academic explained, no woman who kills without the appearance of an imminent attack could have reasonably believed she was acting lawfully. These opinions illuminate the difficulty abused women will have accessing putative self-defence. They evidence the failure of the criminal law system to fully understand women's experiences with violence. As a result, courts (and practitioners) will continue to believe not only that abused women can leave their abusers but also that the option is obvious to the women. Therefore courts will not find it credible that these women honestly believed they were defending themselves.

Exceeded Bounds of Self-Defence
There are two ways in which a person may be disqualified from self-defence but could argue putative self-defence. The first is when a person exceeds the bounds of private defence by using too much force when defending against an unlawful act.¹¹¹ If the person subjectively realised the possibility that s/he was exceeding those limits when s/he killed an attacker, s/he cannot argue putative private defence and should be convicted of murder. As the Appellate Division described in S v Ntuli, 1975 (1) SA 429, "If you kill intentionally within the limits of self-defence, you are not guilty. If you exceed those limits moderately you are guilty of culpable homicide; if immoderately, you are guilty of murder."¹¹²

Women who kill their abusers may have difficulty explaining how they did not realise they were exceeding the bounds of self-defence when they killed a passive person in a non-confrontational situation.

Mistake of Fact
The second method by which a person may argue putative private defence is if s/he honestly, but mistakenly believed s/he needed to act defensively.¹¹³ This formulation is different from putative self-defence in other jurisdictions, where a person who honestly, but unreasonably believes s/he needed to act in self-defence can meet the elements of putative self-defence.

One could argue that this is a semantic debate. One judge, however, concluded that battered women who kill in non-confrontational situations would have difficulty meeting the elements of putative private defence because courts typically apply the defence when a person mistakenly believes there is an attack and where there is some evidence to suggest an attack.¹¹⁴ She feels the latter element is missing in the non-confrontational killing cases.¹¹⁵ In contrast, another judge concluded that the mistake occurs when a woman believes she has no alternative but to kill, although she does have other available options to protect herself.

It is unclear which interpretation will prove true. Should the courts follow the former interpretation, requiring some evidence to justify the woman's conclusion that an attack was going to occur, the woman might be able to use a pattern of abuse to provide the evidence. The problem with this approach is that it will become far too easy for a court to justify a finding of putative self-defence, rather than self-defence, in all non-confrontational cases.

The better approach for including abused women within this defence is to follow the foreign law approach that allows the accused access to the defence when she believes she was acting in self-defence but the belief was unreasonable.

3.1.2 Recommendations of Criminal Law Experts

Most of the experts interviewed believe that battered women who kill in non-confrontational situations could argue putative self-defence where they cannot prove the inescapability of the abuse (that she had no other options)¹¹⁶ or its inevitability. Without explanation, however, one judge stated that opening putative self-defence to battered women who kill in non-confrontational situations presents philosophical and policy problems.

One judge suggested that putative self-defence is open only to those women who try other options to escape the abuse before resorting to killing their abusers. This suggests a reasonableness requirement that is otherwise not an element of putative self-defence. It seems to create an added barrier for abused women that does not exist for others who claim the defence.

One advocate felt that battered women who kill their abusers in non- confrontational situations, because they believed they were defending their lives, should argue putative self-defence. Otherwise, he said a battered woman could never reasonably believe she was acting lawfully in the absence of an imminent attack. Advocates for abused women fear this approach. It suggests that one result of domestic violence and of women's fear of their abusers is that they lose their ability to act like a reasonable person. This approach misunderstands the experiences of abuse victims.

Another advocate argued this is the only defence available for a woman who hires a third party to kill her abuser. This approach fails to account for situations in which women can show the necessity of responding in self-defence, even without an imminent attack. If a woman acts in self-defence in a non-confrontational situation, it is logically inconsistent to limit the means she uses to defend herself.

One academic believes that not only could some of these women access this defence, but also a few could avoid punishment completely because the prosecution would not be able to prove they were negligent in believing they needed to kill their abusers. He suggested that social context evidence could show the woman did not unreasonably make the mistake. In contrast, another academic feels it will be a very rare case in which a battered woman who kills in a non-confrontational situation will be acquitted of culpable homicide once she uses putative self-defence to negate a murder charge.

Two advocates recommended a method for bypassing the potential hurdle created by the credibility test. They suggested using expert psychological evidence of the effects of abuse to help determine that the woman honestly believed she was defending herself. One of these advocates also suggested using this evidence to explain why the woman was not negligent in her beliefs, and therefore should be acquitted of culpable homicide.

Of great concern to proponents of this defence is that four advocates reported that courts do not like putative self-defence, which means it could be very difficult for these women to argue the defence.

Finally, taking a minority position, one judge concluded that because putative private defence requires a mistake of fact, something missing in the battered women cases, the legislature must create a putative victims' defence to allow access to a partial defence to murder.

3.1.3 Conclusion

Based on the case law and the majority of interviewees' opinions, putative private defence appears to be a viable option presently for battered women who kill. The research noted some concerns, such as whether a credibility test as to the honest belief will exclude many women and whether a court must locate a mistake before applying the defence. Expert testimony could be used to aid women faced with either of these problems.

3.2 Putative Necessity Defence

Interestingly, in his treatise, Burchell suggests that courts could recognise a putative necessity defence, much like putative private defence.¹¹⁷ "Where the accused genuinely but mistakenly believed that he or she was acting in a situation of necessity then no liability for an offence based on intention could result because knowledge of unlawfulness would be lacking."¹¹⁸ The defence would reduce the charge to culpable homicide, at which point the prosecution would need to prove the accused negligently reached the mistaken conclusion.

This defence only becomes important for battered women who kill their abusers if the law of necessity is reformed to accommodate these women.

3.3 Provocation

South Africa does not recognise a separate partial-excuse defence of provocation, although until around 1970 provocation was a separate defence.¹¹⁹ The rationale for the change seems to be a desire to stop criminal law from rewarding the short-tempered person for acting impulsively with a special defence and that "society expects its members … to keep their emotions sufficiently in check to avoid harming others."¹²⁰ Instead, an accused may argue provocation as a factor that should mitigate his/her sentence, or in extreme cases that the provocation resulted in non-pathological criminal incapacity.¹²¹ Arguably, provocation can also be used to counter a finding of intention.

For purposes of this discussion, severe emotional stress will be included within the confines of provocation, as that is how courts and academics treat emotional stress.¹²² This point is particularly important in the context of battered women who kill their abusers in non-confrontational situations because the build-up of stress is typically what provokes their actions.

This report will discuss provocation as a mitigating factor for sentencing in section 4.2 below. It will also discuss provocation that results in criminal incapacity in section 3.6 below. This section only explores whether the accused can defend against the prosecution's evidence that s/he intended to kill the deceased.

South African case law and legal commentary dispute whether an accused may use provocation to defend against a finding of intention. In murder cases this would mean an accused could be convicted of culpable homicide only, and not murder. The ambiguity lies in the reading of the Eadie decision. In Eadie, the Supreme Court of Appeal stated that:

Mitigating factors should rightly be taken into account during sentencing. When an accused acts in an aggressive goal directed and focused manner, spurred on by anger or some other emotion, whilst still able to appreciate the difference between right and wrong and while still able to direct and control his actions, it stretches credulity when he then claims, after assaulting or killing someone that at some stage during the directed and planned manoeuvre, he lost his ability to control his actions. Reduced to its essence it amounts to this: the accused is claiming that his uncontrolled act just happens to coincide with the demise of the person who prior to the act was the object of his anger, jealousy or hatred.¹²³

Later the court stated: "The message that must reach society is that consciously giving into one's anger or to other emotions and endangering the lives of motorists or other members of society will not be tolerated and will be met with the full force of the law."¹²⁴ The court rejected that a person provoked into goal-directed and controlled actions can argue total loss of control resulting in legal incapacity (which will be discussed fully in section 3.6). What remains unclear is whether provocation resulting in such controlled behaviour can negate intention, which would reduce a charge to culpable homicide.

A close look at the Eadie decision leads to the conclusion that the court envisages that provocation results either in uncontrolled, automatic behaviour deserving of a defence of non-pathological criminal incapacity, or in a person's "consciously giv[ing] into one's anger", which negates a positive defence. Unless a person can show non-pathological criminal incapacity, s/he must have had some control over his/her behaviour, and therefore acted intentionally, possibly simply by losing control. An accused who falls into the latter category will have no choice but to use the provocation as a mitigating factor at sentencing.

This reading of Eadie is supported by an earlier Supreme Court of Appeal decision in which the court wrote: "Criminal conduct arising from an argument or some or other emotional conflict is more often than not preceded by some sort of provocation. Loss of temper in the ordinary sense is a common occurrence. It may in appropriate circumstances mitigate, but it does not exonerate."¹²⁵

Two advocates agree with this reading of Eadie decision.

To the extent provocation does serve to negate the element of intention, it assumes that the accused committed a voluntary act but was unable to appreciate the unlawfulness of his/her conduct at the moment s/he acted.¹²⁶ Such a failure to appreciate unlawfulness excludes intention.¹²⁷

Because provocation is not a separate defence, it does not have particular elements. Instead:

… liability is determined simply by asking the ordinary questions relating to liability, namely whether, in spite of the provocation, there was an act which complied with the definitional elements of the crime, whether the act was unlawful, whether X has criminal capacity and whether he acted intentionally or negligently.

Typical elements of the defence of provocation in foreign jurisdictions are factors for consideration in assessing liability.

An accused who wishes to rely on provocation to negate intention must lay the proper foundation in evidence of the provocation and its effects on him/her.¹²⁸ A claim that s/he "was so enraged that [s/]he did not know what [s/]he was doing" will not be sufficient to meet this burden,¹²⁹ particularly if the provocation is of a type commonly faced in everyday life. Instead, courts are likely to apply the subjective/objective test defined in Eadie. They will "test the accused's evidence about his state of mind, not only against his prior and subsequent conduct, but also against the court's experience of human behaviour and social interaction."¹³⁰

This is the same reasonableness test applied under putative self-defence. It requires evidence that the person honestly responded to the provocation with a loss of self-control. To determine whether the response was honest, the court tests the credibility of the accused by testing whether a reasonable person would have responded the same way. The less likely a reasonable person would have responded to the provocation with loss of control, the less likely the court would believe the person acted that way.

Another factor South African courts consider is whether the accused had time to cool off before responding to the provocation.¹³¹ This factor, however, is not to be decided in a "mechanical fashion",¹³² which appears to be the approach of foreign jurisdictions. Courts take a similar approach when considering the proportionality between the provoking act and the accused's response.¹³³

There are no specific requirements as to what the provoking act must be. It may be insulting or threatening words or it may be particular conduct on the part of the provoker.¹³⁴ Instead, the courts look at the emotion, whether "jealousy, mercy, anger or fear", as "the emotion is the natural response to some circumstance … that has driven or 'provoked' the actor in doing what he or she does."¹³⁵ The accused may also respond to provocation aimed at another person, rather than him/herself, particularly if there is a relationship between the third party and the accused.¹³⁶

Arguing provocation, however, is a double-edge sword. Instead of negating intention, courts often find that the provocation confirms the accused's intention to murder.¹³⁷ The provocation provides the motive for the killing.¹³⁸ For example, in S v Mokonto, 1971 (2) SA 319 (A), the Appellate Division concluded that an accused intentionally killed a woman who had provoked him with a threat of death through witchcraft: "… if provocation played any part in his (the accused's) conduct, far from negativing intention to kill it contributed to such intention … . Hence there is no room for a verdict of culpable homicide."¹³⁹

3.3.1 Recommendations of Criminal Law Experts

If advocates for abused women who kill wish for a partial defence to murder based on extreme emotional stress or provocation, one judge recommended legislating for a special defence for victims of domestic violence.

3.3.2 Other Recommendations

The first reform recommendation for provocation is that in any consideration of the doctrine, whether for sentencing, as evidence of lack of intention or to prove criminal incapacity, the accused's behaviour must have been reasonable.¹⁴⁰ The rationale for this recommendation is that courts must consider moral blameworthiness when deciding on a sentence. This arguably "can be ascertained only by bearing in mind what the legal order could reasonably have expected of him."¹⁴¹ Blameworthiness should be considered based on community standards. In light of the credibility test applied by the Eadie decision, one could argue that this reform has been adopted already.

In his treatise, Snyman disagrees with a reasonableness or objective approach to provocation. He concludes: "the problem with using an objective test is that it requires everyone, whatever his/her culture or background, to observe the same standard which would be what is 'fairly and reasonably expected of a white person of ordinary knowledge, experience and capacities'."¹⁴²

Another reform recommendation is to require courts to find provocation as a mitigating factor, a negation of intention, or as resulting in criminal incapacity only if the provoking act is unlawful.¹⁴³ One judge concluded that this is de facto the law in South Africa, at least as applied by the "good" judges. This approach protects against men using provocation to explain femicide.

A final recommendation is to create a partial-excuse defence based on provocation where the provoking act is unlawful. This would fill the gap in South African criminal law, which has no defence for a person who feels they lost control other than if they were acting as an automaton at the time of the commission of the crime. The benefit of the defence would be that an accused who meets the defence would not be convicted of murder, which for battered women who kill their abusers appears appropriate. Secondly, it would force the court to consider what are normally mitigating factors when determining liability. Finally, it would protect against femicide being even partially excused. A man will not be able to argue the effects of jealousy, possessiveness and anger at a woman's lawful behaviour to reduce his charges for killing her.¹⁴⁴ One judge supports this recommendation because he fears his colleagues may not be able to understand the abuse as a mitigating factor.

3.3.3 Conclusion

To the extent provocation is a consideration for any of the three purposes for which it may be used, South Africa provides the widest latitude in interpretation. Unlike most of the foreign jurisdictions researched, South Africa readily accepts the cumulative effects of emotions, including of fear and emotional stress when determining whether the provoking act resulted in the accused's loss of self- control. This is particularly important for battered women who kill their abusers after losing control. Unfortunately, as will be described later in section 6.1, in practice courts fail to recognise the cumulative effects in many of these cases.

3.4 Diminished Capacity

South African criminal law does not have a partial-excuse defence of diminished capacity. Courts consider diminished capacity when deciding whether to mitigate a sentence of an accused, treating it identically to provocation. The broad approach to the types of emotions and factors that can result in diminished capacity could greatly benefit battered women who kill if applied to them properly.

3.5 Necessity as an Excuse

As described in section 2.2 earlier, necessity typically serves as a justification for unlawful behaviour against an innocent victim. South Africa also recognises necessity as a full excuse to murder in very limited circumstances. The only such circumstances in which courts have recognised necessity as an excuse is when the accused was under the force of compulsion of a third party to kill the victim.¹⁴⁵ The theory behind this defence is that if a reasonable person had submitted to the compulsion, then it would be unfair to expect the accused to have acted as a hero and a martyr by doing more than a reasonable person would do.¹⁴⁶ Thus the accused cannot "be blamed for committing an unlawful act – even if she acts intentionally and with awareness of unlawfulness."¹⁴⁷ As an excuse, the act itself remains unlawful but the accused cannot be blamed for his/her actions.

To qualify for a defence of compulsion, or necessity as an excuse, the accused must be aware of the threat and must believe that the third party will follow through the threat.¹⁴⁸ If there are any other available means to avoid committing the unlawful killing, the accused cannot invoke this defence.¹⁴⁹ As seen in the case S v Mandela, 2001 (1) SACR 156 (C), the prior requirement of no other means to avoid the threat translates into an imminence requirement. In Mandela, the accused killed an acquaintance following a threat and the belief that if he did not, he would be killed himself the next day. The Cape High Court wrote:

A person who is faced with the most agonising of choice of safeguarding his own right to life at the expense of another's right to life may be regarded as not having the requisite mens rea (although he may have culpa when he fails an objective test). However given the exquisite balance between the conflict between the two right bearers of this most precious of rights, a Court can only find necessity to be a defence, such that the accused then lacks the requisite culpability, in circumstances where the danger of death cannot be averted, save by acts of heroism which extend beyond the capacity that should, and can, be demanded of the reasonable person.¹⁵⁰

The court concluded that because the accused did not expect the third party to follow through on the threat until the following day, "there was no immediacy of life threatening compulsion."¹⁵¹ The court accepted the threat as genuine. However, it stated: "Were a court to accept so low a standard in finding the existence of such a defence it would be guilty of demanding very little from members of our society, which is now a constitutional community based on fundamental principles including those of freedom, dignity, ubuntu and respect for life."¹⁵² This latter statement is consistent with all of the defences to murder.

Although compulsion remains a defence to murder, there is some question of whether allowing such a defence violates the Constitution. Now that the right to life is explicitly protected by the Constitution, can a court essentially weigh one person's life against another's to determine whether a person acted reasonably under compulsion?¹⁵³

The compulsion/necessity excuse defence is not presently applicable to battered women who kill their abusers. The defence assumes that a third party imposes a threat on the life of the accused to kill the victim. In the battered woman situation, one would be arguing that the victim compelled the accused to kill him,¹⁵⁴ a situation presently not covered by the compulsion/necessity excuse defence.

3.6 Non-Pathological Criminal Incapacity

Non-pathological criminal incapacity is a defence that counters the element that an accused acted voluntarily, which is necessary to convict him/her of a crime.¹⁵⁵ Essentially, "the human mind must be in control of the act that he has performed" in order to be found criminally responsible.¹⁵⁶ Under this defence, an accused claims that s/he was incapable of self-control at the time s/he acted. As a result, she did not have the necessary cognitive function to commit the crime.¹⁵⁷ The accused also claims that a pathological mental problem or disease did not cause the incapacity and that it is of a temporary nature.¹⁵⁸ The cause of the incapacity is what differentiates this defence from insanity. If the loss of capacity is "due to factors such as intoxication, provocation and emotional stress, it is termed non-pathological incapacity."¹⁵⁹ If the accused succeeds at the defence, s/he must be acquitted of the crime.¹⁶⁰

The legal theory behind this defence is that if a person was unable to control him/herself, s/he should not be treated as culpable for having committed a crime. South African courts are wary of the application of the defence, fearing that it is far too easy for a criminal defendant to argue criminal incapacity.¹⁶¹ As a result of this fear, the Supreme Court of Appeal, in its Eadie decision, clarified the principles of the defence in hopes that the courts would stop the accused from abusing the defence.¹⁶² The Eadie decision is discussed fully below.

3.6.1 Elements

To succeed in a defence of non-pathological criminal incapacity, the accused must provide evidence of a precipitating event that caused him/her to lose the ability to distinguish right from wrong or act in accordance with what is right or wrong. Since the Eadie decision, non-pathological criminal incapacity is now treated as identical to sane-automatism, when a person acts without any will and as an automaton. In the court's words: "It must now be clearly understood that an accused can only lack self-control when he is acting in a state of automatism."¹⁶³

As with all criminal defences, the accused must lay the foundation for each element of the defence and the prosecution must disprove the defence beyond a reasonable doubt.¹⁶⁴ The prosecution is aided in its burden by "the natural inferences that in the absence of exceptional circumstances a sane person who engages in conduct which would ordinarily give rise to criminal liability, does so consciously and voluntarily."¹⁶⁵ Further, courts will carefully scrutinise all elements of the evidence to stop the abuse of the defence.¹⁶⁶

Loss of capacity
To succeed on a defence of non-pathological criminal incapacity, a person must lay the foundation for a finding that she did not know what was right or wrong.¹⁶⁷ Also, that she could not act in accordance with that knowledge at the time the crime was committed.¹⁶⁸ While this has always been South Africa's test for criminal capacity, the Eadie decision questioned whether an accused could prove that despite retaining the ability to distinguish between right and wrong, s/he could not act based on that knowledge. The Supreme Court of Appeal wrote: "Whilst it may be difficult to visualise a situation where one retains the ability to distinguish between right and wrong yet loses the ability to control one's actions, it appears notionally possible."¹⁶⁹ This conclusion changes the nature of the defence as many courts found criminal incapacity based on what is now only "notionally possible."

Because that second method of showing incapacity – a loss of control when one knows it is wrong – has been called into doubt, it is no longer enough to show that the person had "an inability to restrain oneself, or an inability to resist temptation, or an inability to resist one's emotions."¹⁷⁰ As the Supreme Court of Appeal described, to allow someone to argue "the devil made me do it" to escape liability for a criminal act "does violence to the fundamentals of any self-respecting system of law."¹⁷¹

The court described the circumstances as rare in which a person would be able to meet the elements of the defence.¹⁷² Some experts felt that as a result of the Eadie decision, it would now be nearly, if not actually, impossible to prove non-pathological criminal incapacity.

Courts determining an accused's capacity employ a subjective test to determine whether the accused suffered from non-pathological criminal incapacity at the time of the killing.¹⁷³ They ask whether the person suffered from criminal incapacity, and not whether a reasonable person in the accused's shoes would have suffered from such incapacity in the face of particular events.

However, before reaching a final conclusion, the courts must also employ an objective test – was it reasonable for the accused to have lost control – to determine the credibility of the accused's subjective claim.¹⁷⁴ If the accused fails the objective test, it calls into question whether, subjectively, s/he lost control. This is identical to the courts' approach to the question of the accused's honest belief raised under putative self-defence and whether the accused acted in response to a provocation. For example, in Eadie, one of the deciding factors against finding incapacity was that "… hundreds of thousands of people daily find themselves in similar or worse situations, yet they do not go out clubbing fellow motorists to death when their anger may be provoked."¹⁷⁵

When adding the objective element to the determination of capacity, the Supreme Court of Appeal wrote that the defence was easily abused because of the "misapplication" of this test:

Part of the problem appears to be … a too-ready acceptance of the accused's ipse dixit concerning his state of mind. It appears … to be justified to test the accused's evidence about his state of mind, not only against his prior and subsequent conduct but also against the court's experience of human behaviour and social interaction.¹⁷⁶

Certain behaviours indicate whether a person suffered f