S Goosen

Introduction

Certain types of intentional killing are no longer regarded as unlawful, and therefore are not punished as murder. South Africa recognises that killing in self-defence is justifiable, and therefore not murder. 1 Burchell offers the following definition of private defence:

A person who is the victim of an unlawful attack upon person, property or other recognized legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the course of such private defence is not unlawful.2

Burchell has noted that two important and yet somewhat conflicting themes shape the structure of the law of private defence. One is that private defence involves a choice between two evils, and that in choosing, the lesser evil is to be preferred. The evils are set out as follows. Firstly, the harm threatened by an attack upon the interests of an individual. Secondly, harm perpetrated against the legal interest of the attacker, in the process of repelling the attack. The doctrine of the lesser evil requires that the defender should not inflict greater harm than that threatened by the initial attack. Burchell notes: "the central organizing principle of this approach is thus the comparative assessment of harms involved".3

The opposing approach is one which justifies private defence using the concept of the autonomous individual. The theory underlying this approach is that every person has the right to protect their legal interests, and is under no obligation to surrender

 Samantha Goosen. LLB (UPE), LLM (Criminal Justice) (UPE), PhD (UKZN). Post-doctoral Research

Burchell and Milton Principles of Criminal Law (2005) 230.

Burchell and Milton Principles of Criminal Law (2005) 231.

these rights in order to avoid inflicting some evil on another person. According to this approach, an individual who chooses to infringe the rights of another is the author of the harm suffered in the course of a defensive response to an attack.4

Snyman refers to two justifications for the existence of private defence. The protection theory emphasises individuals and their right to defend themselves against an unlawful attack. In respect of upholding justice theory, people acting in private defence perform defensive acts, thereby assisting in upholding the legal order. Private defence is meant to prevent justice from yielding to injustice. These acts are now subject to the Constitution.5 This point was noted in S v Walters,6 that:

self-defence is treated in our law as a species of private defence ... Until now, our law has allowed killing in defence of life, but also has allowed killing in defence of property, or other legitimate interests, in circumstances in which it is reasonable and necessary to do so ... What is material is that the law applies a proportionality test, weighing the interest protected against the interest of the wrongdoer. The interests must now be weighed in light of the Constitution.7

Private defence forms part of South African common law. The courts are guided by the Constitution as to which approach is to be followed when a common-law principle, rule or doctrine, appears to be in conflict with the Constitution. Section 39(2) provides that "when interpreting any legislation and developing the common-law or customary law, every court, tribunal or forum must promote the spirit, purport and, objects of the Bill of Rights". This essentially means that the common law must be "adapted or corrected, where applicable, to reflect constitutional values".8 Van Dikhorst J gave the following summary of the meaning of the section:

Section 35(3) [now 39(2)] is intended to permeate our judicial approach to interpretation of statutes and the development of the common law with the fragrance of values in which the Constitution is anchored. This means that wherever there is room for interpretation or development of our virile system of law

4 Burchell and Milton Principles of Criminal Law (2005) 231. 5 Constitution of the Republic of South Africa, 1996. Herein referred to as "the Constitution”. 6 S v Walters 2002 7 BCLR 663 (CC). 7 S v Walters 2002 7 BCLR 663 (CC) 53. 8 Ally and Viljoen 2003 SACJ 129-130.

that is to be the point of departure. When in future the unruly horse of public policy

is saddled, its rein and crop will be that value system.9

This assessment calls for a two-staged approach to be adopted. In respect of the first stage, the content and scope of the rights protected -including the meaning and objects of the conduct challenged -must be determined to establish if there is such deprivation or limitation.10 If there is such a limitation, the enquiry would then proceed to the second stage. This stage entails a balancing process which applies a proportionality test provided for in section 36(1) of the Constitution. The abused woman relying on the conduct stipulated should be able to demonstrate that the limitation is justifiable under the Constitution.11

While the Constitution does not establish a hierarchy of rights, judges and academics have acknowledged that some rights are more foundational, constituting a core of rights from which others are derived. In S v Makwayane,12 O'Regan J earmarked the right to life as "antecedent to all other rights in the Constitution." The same holds true for the right to dignity, especially when taken together with the right to life. To this should be added the right to bodily integrity. Ally and Viljoen note the meaning of the right to bodily integrity:

Violence against an individual is a grave invasion of personal security. Section

12(1)(c) requires the State to protect individuals, both by refraining from such

invasions itself and by discouraging private individuals from such invasions.13

To meet constitutional muster, the limitation must be closely linked to its purpose.14 Abused women are entitled to protect their lives, and therefore can kill to achieve this purpose. However, an important factor in such an evaluation is if less restrictive means were available to achieve the stated objectives. As Ally and Viljoen note, one way of posing this question is to reformulate some of the case law as common law: "the use of violence, especially lethal force, can only be justified if it is necessary;

9 Du Plessis v De Klerk 1995 2 SA 40 (T) 501i-j. 10 S v Walters 2002 7 BCLR 663 (CC) para 26. 11 S v Walters 2002 7 BCLR 663 (CC) para 326. 12 S v Makwanyane 1995 6 BCLR 665 (CC). 13 Ally and Viljoen 2003 SACJ 132. 14 Section 36(1)(d) Constitution.

that is, if it is the only means to avoid death or grievous bodily harm".15 While it could be said that the battered woman could have left the abusive relationship, the law does not require the abused woman to leave her home, nor does it expect ordinary persons to display acts of heroism. Therefore the death or serious bodily injury of the abuser caused as a result of the limitation can be justified when section

36 is applied.16

Private defence is an extraordinary remedy that involves the infliction of harm upon another individual. To escape criminal liability for this act the defender must be able to show that her resort to private defence conformed to the social and legal norms that result in the use of self-help by citizens. In respect of self-defence the norms that apply require that the defender be able to provide evidence that the resort to force was necessary in the circumstances that she found herself in, and that she used means appropriate to the danger that confronted her. These requirements for successfully invoking the defence are expressed as conditions that must have been present or complied with. Such "triggering" conditions relate to the nature of the attack and the nature of the defender's response (the defence).17

For a situation of private defence to arise, evidence must show (a) an attack, (b) upon a legally protected interest; and (c) that the attack was unlawful.

The first requirement is that there must have been an attack. Fear alone is not sufficient to justify a defence.18 Private defence may be utilised only where there is an attack which has already commenced or is imminent.19 The term "commenced" means that private defence may be resorted to only where the attack has already begun and there is no time to seek other forms of protection.20 Burchell notes that "imminent means that the attack is about to begin immediately -what is important here is not so much the imminence of the threat, but rather the immediacy of the

15 Ally and Viljoen 2003 SACJ 132. 16 Constitution of the Republic of South Africa, 1996. 17 Burchell and Milton Principles of Criminal Law (2005) 233. 18 However, fear may be relevant to establishing the existence of "putative" private defence. 19 Steyn 1932 SALJ 462. 20 Burchell and Milton Principles of Criminal Law (2005) 234.

response required to avoid the attack. If the nature of the attack is such that the threatened harm cannot be avoided, the victim should be entitled to act with such anticipation as is necessary for effective protection."21 It was noted in S v Mokgiba 22 that—

The appellant was reasonable in his belief that his attacker did not come to visit him or to look for work. The actions of the attacker posed an immediate threat to the bodily integrity and the life of the man and his wife. The appellant was entitled to use all his strength and remedies he had at his disposal, even if these remedies meant that his attacker would die in the process. There was no duty on the appellant to wait until his attacker first physically harmed him, or to ask him what the purpose of his visit was, before he defended himself.23

In R v Zikalala 24 the court held that:

The observation places a risk upon the appellant that he was not obliged to bear. He was not called upon to stake his life upon a 'reasonable chance to get away.' If he had done so he may well have figured as the deceased at the trial instead of the accused.25

The attack must not have been completed, and any measure taken after the attack has ended 26 would be retaliatory rather than defensive and therefore unjustified. This is problematic, as battered women tend to kill in instances where their abuser is asleep or incapacitated and there is no imminent threat of harm. Some academics have suggested that victims of battered woman syndrome ought to be allowed to pre-empt the anticipated and inevitable attack of the abusive spouse, and it would appear as if South African courts are moving in that direction. Since 1947, South African law has dealt with the question of whether an accused who relied on selfdefence and acted lawfully must be judged by objective standards. This point was demonstrated in S v Motleleni:27

21 Burchell and Milton Principles of Criminal Law (2005) 234. 22 S v Mokgiba 1999 1 SACR 534 (O). 23 S v Mokgiba 1999 1 SACR 534 (O) 550d-e. 24 R v Zikalala 1953 2 SA 568 (A). 25 R v Zikalala 1953 2 SA 568 (A) 573a-b. 26 S v Mogohlwane 1982 2 SA 587 (T). Y after being robbed by X, went home, collected a weapon,

returned to the scene of the robbery, and used force against X to recover his property. It was held that he had acted in lawful private defence in so far as his actions had been part of the res gestae of the original attack.

27 S v Motleleni 1976 1 SA 403 (A).

The question whether an accused, who relies on self-defence, has acted lawfully must be judged by objective standards. In applying these standards one must decide what the fictitious reasonable man, in the position of the accused and in light of all the circumstances would have done.28

Snyman suggests that "reasonableness is a relative concept, depending on the circumstances of each case".29 Generally, it is accepted that the "reasonableness" test is a vehicle to ascertain the legal convictions of the community or the community's sense of equity and justice (boni mores). This has been described as an instrument of judicial policy.30 In Government of the Republic of South Africa v Basdeo31 the court noted that—

the value judgment on which the application of the general criterion of reasonableness is based, is on considerations of morality and policy and the court's perception of the legal convictions of the community, and entails a consideration of all the circumstances of the case.32

In conducting such an enquiry, the court must be guided by values and norms underlying the Constitution. The Constitution, being the supreme law of the land, is a system of objective, normative values for legal purposes. An approach to the "legal convictions" test would be informed by the foundational values of the Constitution, namely "human dignity, equality and freedom". 33 Such an approach will have as its basis the circumstances and perceptions of the accused. Section 9 of the Constitution requires that courts have regard to the particular circumstances of the

accused.34

Although it has been noted that the objective test is subject to the qualification that the person acting in self-defence may not benefit from prior knowledge that he has of his attacker, which the reasonable person would not have,35 it would appear as if

28 S v Motleleni 1976 1 SA 403 (A) 406c. 29 Snyman 2004 SACJ 178. 30 S v Engelbrecht 2005 2 SACR 41 (W) para 330. 31 Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A). 32 Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A) 367f. 33 Section 39(2) Constitution. 34 Section 9 Constitution. 35 Burchell and Hunt South African Criminal Law (1983) 331.

the courts are moving towards a more qualified objective test of self-defence. This point was made clear in S v Ntuli36 where Holmes JA noted that the South African courts have always insisted that they must be careful to avoid the role of armchair critics, wise after the event, and weighing the matter in the secluded security of the court-room. The approach is that "in applying these formulations [the triggering conditions] to flesh and blood facts, the courts adopt a robust attitude, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self

defence". 37

In S v Engelbrecht38 the accused had been the victim of domestic violence for a number of years. This included not only physical but also psychological abuse. On the day of the deceased's death he had been drinking and watching pornography. The deceased indicated to his wife that he wished to act out a scene in a video that he was watching. While the accused was submitting to the deceased's demands, the accused's daughter walked into the bedroom. 39 Later that night, the accused's daughter accidentally knocked the deceased in the face.40 He screamed at her and hit her, and forbade the accused to talk to her daughter. If she failed to heed his instructions, he said she would be killed. The accused then proceeded to kill her sleeping husband by locking his thumbs in thumb cuffs behind him and tied a plastic bag around his head which subsequently caused him to suffocate.41 In this case, Satchwell J held that self-defence had to be evaluated objectively, and is based on a consideration of what would have been reasonable in the situation the accused found herself in. 42 The judge noted that "the reasonable woman must not be forgotten in the analysis and deserves to be as much part of the objective standard of a reasonable person as does the reasonable man". 43 Therefore, on this basis it was held that:

36 S v Ntuli 1975 1 SA 429 (A). 37 S v Ntuli 1975 1 SA 429 (A) 437e. 38 S v Engelbrecht 2005 2 SACR 41 (W). 39 S v Engelbrecht 2005 2 SACR 41 (W) para 128. 40 S v Engelbrecht 2005 2 SACR 41 (W) para 130. 41 S v Engelbrecht 2005 2 SACR 41 (W) paras 10-11. 42 S v Engelbrecht 2005 2 SACR 41 (W) para 327. 43 S v Engelbrecht 2005 2 SACR 41 (W) para 328.

There is indeed compelling justification for focusing not only on the specific form which the abuse may have over time and in particular circumstances, but pertinently on the impact of the abuse upon the psyche, make-up and entire world view of an abused woman.44

By thus taking into account the accused's situation the court relaxed the traditional requirements for self-defence. Satchwell J went on to state that in determining the lawfulness of the self-defensive act, the "attack" element has become more broadly defined: "one individual incident of abuse, a series of violations or an on-going cycle

of maltreatment".45

With regards to the imminence requirement, the court followed the finding in the Canadian case of R v Lavallee,46 where it was held that requiring a systematically-abused woman to wait until the commencement of an attack to defend herself is "tantamount to sentencing her to murder by instalment".47 Satchwell J decided to reinterpret the common law by adopting the Canadian approach to address this shortcoming:

where abuse is frequent and regular such that it can be termed a 'pattern' or 'cycle' of abuse then it would seem that the requirement of imminence should extend to encompass that which is inevitable.48

The judge went on to explain, that in order to determine if the action taken was necessary, the extent to which it was necessary would have to be established, as also to what extent the normal legal channels were ineffective. While Mrs Engelbrecht's efforts to leave her husband were taken into consideration, Satchwell J adopted a cautionary approach in this regard:

[I] am of the view that the court must, in this context, be extremely cautious in seeking to rely upon examination of the efforts taken by an abused woman to extricate herself from the abusive situation or to escape the abusive spouse or partner. Judgment should not be passed on the fact that an accused battered

44 S v Engelbrecht 2005 2 SACR 41 (W) para 343. 45 S v Engelbrecht 2005 2 SACR 41 (W) para 344. 46 R v Lavallee 1990 55 CCC (3d) 97. 47 R v Lavallee 1990 55 CCC (3d) 97 para 348. 48 R v Lavallee 1990 55 CCC (3d) 97 para 349.

woman stayed in the abusive relationship. Still less is the court entitled to conclude that she forfeited her right to self-defence for having done so.49

In discussing the proportionality requirement, Satchwell J noted that in the case of an abused woman, her particular circumstances should be taken into account:

the parties respective ages; the relative strengths, gender socialization and experiences; the nature duration and development of their relationship; the content of their relationship, including power relations on an economic, sexual, social, familial, employment and socio-religious level; the nature, the extent, duration, persistence of the abuse; the purpose of and achievements of the abuser, the impact upon the body, mind, heart, spirit of the victim; the effect on others who are aware of or implicated in the abuse; the extent to which it is possible for State-legislated, formal institutional, informal personal bodies and individuals to intervene to terminate the abuse; the extent to which it is possible for the abused victim to access and utilize any of the above channels in the event that they previously failed and to unilaterally intervene to impose constitutional protections.50

Satchwell J went on to note that in evaluating if the actions taken by the accused were reasonable, the analysis is partly objective and partly subjective. 51 Placing emphasis on the accused's individual circumstances could have the effect of subjectivising the test for self-defence. This raises the question: if the Engelbrecht case is correct, would it not have been better dealt with as an instance of putative self-defence? In terms of current South African law, if a battered woman is not able to successfully plead self-defence because the court found her conduct was unlawful, objectively assessed,52 then she may be acquitted of murder on the basis of putative private defence, which is subjectively assessed. 53 In S v De Oliviera54 it was held that such a defence would be of assistance to an accused "who honestly believes his life ... [is] in danger, but objectively viewed [it is] not".55 This honest but incorrect belief would eliminate the necessary intention to commit such an unlawful act. Furthermore, the test for intention is subjectively assessed:

49 R v Lavallee 1990 55 CCC (3d) 97 para 356. 50 R v Lavallee 1990 55 CCC (3d) 97 para 357. 51 R v Lavallee 1990 55 CCC (3d) 97 para 358. 52 S v De Oliviera 1993 2 SACR 59 (A). 53 S v De Oliviera 1993 2 SACR 59 (A) 163i-j. 54 S v De Oliviera 1993 2 SACR 59 (A) 163i-j. 55 Reddi 2005 SACJ 275.

The focus of attention in ascertaining whether or not intention existed is the woman's subjective state of mind. The fact that her belief may have been unreasonable or even foolish under the circumstances is of no consequence at all as this enquiry does not concern itself with what a reasonable person would have done under the same circumstances.56

Furthermore, the "social framework or circumstances that may have impacted on the woman's conduct would have a bearing on the determination of the woman's culpability".57 Evidence of the "cyclical nature of abuse" as well as the woman's failed attempts at leaving her abuser would be highly relevant to inform putative self-defence.58 For this reason, if a reasonable person located in the extraordinary circumstances of the accused would not have foreseen that the resort to selfdefence was unlawful, then the abused woman cannot be expected to have such foresight. In such circumstances "her lack of foresight would not be regarded as negligent and a charge of culpable homicide would fail". 59 It is submitted that putative self-defence is highly relevant to the abused woman who kills her abuser in circumstances that fall outside the parameters of private defence, as it may represent the difference between a conviction of murder and one of culpable homicide in South African law. At its most extreme, it may even prove the difference between a conviction of murder and a complete acquittal.60

The second requirement is that the private defence may be resorted to only in respect of a legally recognised protected interest in law. Many legal systems have approached the question of what interests may be protected by private defence in a casuistic fashion, and this results in not all legal interests being recognised as the subject of the private defence.61 Section 7(2) of the Constitution requires the State to "respect, promote and fulfil the rights in the Bill of Rights".62 The foundational values of the Constitution include those of "equality" and "dignity." Sections 9(1) and

56 Reddi 2005 SACJ 275. 57 Reddi 2005 SACJ 276. 58 Reddi 2005 SACJ 276. 59 Reddi 2005 SACJ 276. 60 Reddi 2005 SACJ 276. 61 Burchell and Milton Principles of Criminal Law (2005) 235. It is universally agreed that a person

is entitled to protect: life (see R v Jack Bob 1929 SWA 32; R v Zikalala 1953 2 SA 568 (A)); limb (see R v Cele 1945 NPD 173; R v Patel 1959 3 SA 121 (A) 123); dignity (see S v Van Vuuren 1961 3 SA 305 (E)); sexual integrity (see R v Nomahleki 1928 GWL 8).

62 Constitution of the Republic of South Africa, 1996.

9(2) provide that "everyone is equal before the law and has the right to equal protection and benefit of the law", and that "equality includes the full and equal enjoyment of all rights and freedoms," while section 10 provides that "everyone has an inherent dignity and the right to have their dignity respected and protected".63 The protected rights include those in section 12 "to freedom and security of the person", which cover the rights "not to be deprived of freedom arbitrarily or without just cause; to be free from all forms of violence either from public or private sources; not to be treated or punished in a cruel, inhuman or degrading way", and also "to bodily and psychological integrity", which covers the rights "to make decisions concerning reproduction; to security in and control over their body". 64 In addition to common-law and statutory provisions for the protection of these rights, the legislature has enacted the Domestic Violence Act 116 of 1998, of which the Preamble states:

Recognizing that domestic violence is a serious social evil; that there is a high incidence of domestic violence within South African society; that victims of domestic violence are amongst the most vulnerable members of society; that domestic violence takes on many forms; that acts of domestic violence may be committed in a wide range of domestic relationships and that the remedies currently available to the victims of domestic violence have proved ineffective; and having regard to the Constitution of South Africa; and in particular, the right to equality and to freedom and security of the person; and the international commitments and obligations of the State towards ending violence against women and children including obligations under the United Nations Conventions on the Elimination of all Forms of Discrimination against Women and the Rights of the Child; it is the purpose of this Act to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of State give full effect to the provisions of this Act, and thereby to convey that the State is committed to the elimination of domestic violence.

The Domestic Violence Act has comprehensively defined "domestic violence" as including physical and non-physical forms of violence, all of which fall under the rubric of "controlling and abusive behaviour ... where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant". It

63 Constitution of the Republic of South Africa, 1996. 64 Constitution of the Republic of South Africa, 1996.

would appear that the legislature has chosen to emphasise the effect of abusive conduct upon the victim, as opposed to the specific form taken by such conduct.65

In S v Baloyi 66 the Constitutional Court noted that domestic violence compels constitutional concern in a number of important respects. On the one hand, the Constitution:

... has to be understood as obliging the state directly to protect the right of everyone to be free from domestic violence. Indeed, the State is under a series of constitutional mandates which include the obligation to deal with domestic violence; to protect both the rights of everyone to enjoy freedom and security of the person and to bodily and psychological integrity, and the right to have their dignity respected and protected, as well as the defensive rights of everyone not to be subjected to torture in any way and not to be treated or punished in a cruel, inhuman or degrading way.67

On the other hand,

to the extent that it is systematic, pervasive and overwhelmingly gender-specific, domestic violence both reflects and reinforces patriarchal domination, and does so in a particularly brutal form ... The non-sexist society promised in the foundational clauses of the Constitution, and the right to equality and the non-discrimination guaranteed by section 9, are undermined when spouse-batterers enjoy immunity.68

The Constitutional Court endorsed the view that domestic violence is "systematic, pervasive and overwhelmingly gender-specific." It "both reflects and reinforces patriarchal domination and does so in a particularly brutal form". It thus also implicates the core values of equality.69

In Engelbrecht 70 it was held that those rights which were enshrined in the Constitution constituted the interests which were deserving of protection in this defence of justification. It followed that the interests which were attacked and which an abused woman could protect include her life, bodily integrity, dignity, quality of

65 S v Engelbrecht 2005 2 SACR 41 (W) para 157. 66 S v Baloyi 2000 1 SACR 79 (CC). 67 S v Baloyi 2000 1 SACR 79 (CC) para 11. 68 S v Baloyi 2000 1 SACR 79 (CC) para 12. 69 S v Baloyi 2000 1 SACR 79 (CC) para 12. 70 S v Engelbrecht 2005 2 SACR 41 (W).

life, her home, her emotional and psychological wellbeing, her freedom, and the interests of her children. In short, she could defend her status as a human being

and/or mother.71

Thirdly, the private defence can be resorted to only in respect of an attack that is unlawful.72 The fact that the attacker is insane and lacks criminal capacity does not cause the attack to be lawful and thus defence against such an attack is lawful.73 In the case of an abused woman, the unlawful attack against which she defends herself or others may be one individual incident of abuse, a series of violations, or an ongoing cycle of maltreatment. Not all attacks are required to be directed at the abused woman herself, but obviously there must have been some assault upon her, for her to be considered abused. The attack may, but need not necessarily, be physical in nature, and may include psychological and emotional abuse, degradation of life, diminution of dignity, and threats to commit any such acts.74

The defence employed by an abused woman must also comply with certain requirements. First of all, she must prove that the defensive act was necessary to avert the attack, in other words, the defence employed by the abused woman must be necessary to protect the threatened interest. Performing the defensive act ought to be the only way in which the abused woman can necessarily avert the threat to her rights or interests. This is decided on the facts of each case.75 The basic idea underlying private defence is that a woman is allowed to "take the law into her own hands," as it were, only if the ordinary legal remedies do not afford her effective protection. The rationale underlying this defence has been stated as ensuring that "justice should not yield to injustice".76 As Snyman has noted, "[t]he defence deals with nothing less than the protection of justice in the circumstances in which the police are unable because of their absence, to perform this task". For this reason, it is essential that the court critically examines the extent to which the "ordinary law of

71 S v Engelbrecht 2005 2 SACR 41 (W) para 345. 72 Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C) 404-405. 73 Burchell and Milton Principles of Criminal Law (2005) 237. 74 S v Engelbrecht 2005 2 SACR 41 (W) para 344. 75 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) 497h. 76 Snyman Criminal Law (2006) 102.

the land" was effective in preventing the precipitating unlawful attacks, and freeing the abused from the attacks and their impact.77

The underlying and often unarticulated question is if an abused woman has a duty to flee the attack(s) rather than defend herself by killing. Snyman argues that there is no duty upon the attacked person to flee, because "this is a negation of the whole

essence of private defence [which deals] … with the upholding of justice … not a

capitulation to injustice".78 However, he submits that "there is no absolute duty to retreat and that the approach of our law ought to be that the question of whether or not the battered woman could or should have retreated is merely one of the issues to be taken into account when assessing whether the abused woman's defensive act

was allowed by law".79

In Engelbrecht Satchwell J considered that bearing in mind the "hidden" or "concealed" nature of domestic violence, which is frequently confined to the privacy of the home, she was cautious about requiring the abused woman (and her children) to vacate their home, leaving the abusive spouse in full occupation.80 The judge further held that flight may be thought to encompass efforts made not only to leave the home but also to approach state authorities such as the South African Police Service, the family violence courts, shelters, family and friends, and so forth, The response to the unarticulated question as to why, if the violence was so intolerable, the abused woman did not leave her abuser long ago, should be that this question does not go to whether or not she had an alternative to killing the deceased at the critical moment. Nevertheless, as was stated in Lavallee,81 to the extent that her failure to leave the abusive relationship earlier may be used in support of the proposition that she was free to leave at the final moment, expert evidence can

provide useful insights.82

77 Snyman Criminal Law (2006) 102. 78 Snyman Criminal Law (2006) 107. 79 Burchell and Milton Principles of Criminal Law (2005) 239. 80 S v Engelbrecht 2005 2 SACR 41 (W) para 354. 81 R v Lavallee 1990 55 CCC (3d) 96. 82 S v Engelbrecht 2005 2 SACR 41 (W) para 355.

Satchwell J noted that the court must, in this context, be extremely cautious in seeking to rely upon examination of the efforts taken by an abused woman to extricate herself from the abusive situation, or to escape the abusive spouse or partner. Judgment should not be passed on the fact that the battered woman stayed in the abusive relationship. Still less is the court entitled to conclude that she forfeited her right to private defence by having so done.83

There must be a certain balance between the attack and the defence.84 As Snyman notes—

The upholding-of-justice theory principle plays an important role in the rule that there must be a reasonable relationship between the attack and the defensive act that is, the requirement of proportionality in private defence. The harm occasioned by the defensive action must be proportional to the legal interests of the defender that are endangered and that are being protected by her However, when accepting the individual protection theory as the only basis for private defence, it could be argued that the defending party may fend off imminent infringement of her rights without the defensive action necessarily being restricted in any way. The problem is that the legal order does not tolerate gross disproportion between the interest

protected by the defender and the interest she is attacking … Disregard of the

requirement of proportionality leads to law abuse -that is, disregard of the upholding-of-justice principle underlying private defence.85

The limits of private defence are difficult to describe with any degree of precision, since everything depends on the particular circumstances of the case. The approach to be favoured, which was adopted by the court in In re Ex Parte Minister of Justice: S v Van Wyk,86 is whether the defender acted reasonably when he defended himself or his property. Put another way, the court will look at what may reasonably be expected of the attacked party in the circumstances of each case:

This test allows the court to assess the defence in the context of factors such as the nature of the attack, the interest threatened, the relationship of the parties, their respective age, sex, size and strength, the location of the incident, the nature of the means used in the defence, the result of the defence.87

83 S v Engelbrecht 2005 2 SACR 41 (W) para 356. 84 Snyman 2004 SACJ 189. 85 Snyman 2004 SACJ 189-190. 86 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A). 87 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) para 49, discussed in Burchell

and Milton Principles of Criminal Law (2005) 241.

In addition to the factors mentioned, the court in Engelbrecht took into account factors which were relevant to the situation of the accused, and which could be used to show that her actions were reasonable in the light of her circumstances. These include:

The parties respective ages; relative strengths, gender, socialization and experiences; the nature, duration and development of their relationship; the content of their relationship, including power relations on an economic, sexual, social, familial, employment and socio-religious level; the nature, the extent, duration, persistence of the abuse; the purpose of and achievements of the abuser; the impact upon the body, mind, heart, spirit of the victim; the effect on others who are aware of or implicated in the abuse; the extent to which it is possible for State-legislated, formal institutional, informal personal bodies and individuals to intervene to terminate the abuse; the extent to which it is possible for the abused victim to access and utilize any of the above channels in the event that they previously failed to unilaterally intervene to impose constitutional protections.88

While these factors noted by the court suggested that proportionality between the attack and defensive action on her part had played an important role, the assessors in Engelbrecht chose to emphasise help-channels which they felt Mrs Engelbrecht had not utilised sufficiently89 -thus undermining the court's previous statements that proportionality between the attack and the defence was important.

Secondly, the right of private defence can be exercised only against the attacker, not

against a third party.90

The third requirement, namely the one of imminence, lies at the heart of the justification of self-defence and forms the focal point of this discussion. 91 This intrinsic limitation on the scope of self-defence ensures that citizens act only when the state has failed to protect their legal rights. 92 However, the case of S v

88 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) para 357. 89 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) paras 418, 448. 90 Burchell and Milton Principles of Criminal Law (1997) 142. 91 The attack should not yet have been completed (S v Mogohlwane 1982 2 SA 587 (T). Any

measure taken after the attack has ended would be retaliatory rather than defensive (R v Hayes 1904 TS 383). 92 Rosen 1986 Am U L Rev 31.

Engelbrecht,93 which deals with the position of a battered woman acting in selfdefence, seems to suggest that the traditional imminence requirement does not adequately cater for these women's situations. For instance, Mrs Engelbrecht killed her husband in a non-confrontational situation: while he slept she locked his thumbs in thumb cuffs behind his back and tied a plastic bag around his head in order to suffocate him.94 A claim of self-defence in terms of the general principles of South African law could be rejected on the ground that it was unreasonable to believe that such an attack was imminent. The conduct would therefore open itself up to being interpreted as an act of punishment or vengeance, neither being justifiable as selfdefence.95 Ossification of specific rules of self-defence has been predicated on what a reasonable response to deadly force might be, and this is based on the paradigm of an encounter between two men of roughly equal physical size and ability. In such cases, the abused woman is clearly disadvantaged: a woman's response to physical violence is likely to be different from a man's because of his size, strength and socialisation. 96 The need for legislation 97 and the development of the "battered woman syndrome" to expand the imminence requirement has therefore developed as a result of the inability of the courts to deal with cases of abused women. This is because they often involve an accused who is deserving of sympathy and who cannot fairly be blamed for her conduct, but who would have no self-defence claim if the law were strictly applied.98 For instance, in Engelbrecht99 the court adopted the Canadian approach, where it was held that where the abuse can be termed a "pattern" or "cycle" of abuse, then it would seem that the requirement of imminence should extend to encompass abuse which is inevitable.100

There have been numerous calls for the abolition of the imminence requirement. The problem is that something must stand in its stead to distinguish legitimate cases of self-defence from illegitimate ones. The focus of this article will be the variations

93 S v Engelbrecht 2005 2 SACR 41 (W). 94 S v Engelbrecht 2005 2 SACR 41 (W) para 10-11. 95 Reddi 2005 SACJ 270. 96 Hatcher 2003 NYU Ann Surv Am L 22. 97 Domestic Violence Act 116 of 1998. 98 Rosen 1986 Am U L Rev 13. 99 S v Engelbrecht 2005 2 SACR 41 (W). 100 S v Engelbrecht 2005 2 SACR 41 (W) para 349.

advanced for the imminence requirement, and why these theories will not be practically applicable to South African law.

3 Should imminence remain a requirement in South African law of self-defence?

It is submitted that the Engelbrecht 235case unacceptably broadened the scope of private defence in its unanimous opinion that further domestic violence was imminent or inevitable.236 On the one hand, it could be suggested that Satchwell J correctly considered the legal convictions of society in determining the unlawfulness of the conduct. The imminence requirement was in fact applied. However, this was done in terms of the legal convictions of society, which now also include a consideration of the fundamental human rights as guaranteed in the Bill of Rights. Therefore, perhaps Satchwell J did not in fact dispense with the "imminence" requirement. Instead, she clearly delineated the extended meaning of the imminence requirement by noting that the cycle of abuse was in fact "inevitable". Furthermore, given the provisions of sections 8 and 39 of the Constitution and the consideration of fundamental human rights in the determination of unlawfulness, precedent is no longer an obstacle in the way of the adaptation of the common-law requirement of imminence to comply with the values on which South African society is based.

While it could be argued that constitutional norms could at least provide a broad-based "principle" or set of principles on which to draw distinctions in determining which factors should be considered in extending the imminence requirement, it is submitted that this view is impractical. The concept of unlawfulness, which hinges on the legal convictions of the community, has not only found favour with South African courts, but requires the judge not to impose his own subjective preferences onto the case, but to seek the solution in the sentiments of "all enlightened individuals in society" or the "legal convictions of the community's lawmakers".237 The enquiry into reasonableness in the context of unlawfulness can accommodate only the generic facts or the physical act, assessed in terms of the constitutional rights, where the "reasonable man" test has become increasingly subjectivised to

235 S v Engelbrecht 2005 2 SACR 41 (W). 236 S v Engelbrecht 2005 2 SACR 41 (W) para 398. 237 Flack 1999 Responsa Meridiana 82.

take into account a number of the personal qualities of the accused. Although there is a need for flexibility in the area of the grounds for justification, and this makes objectivity more elusive, there have to be clear limits. Judges are expected to make value judgments in this context all the time, when they assess the extent to which an accused's conduct falls within the limits of self-defence. The realm of objectivity is in the recognition of pre-existing limits. The use of discretion in applying such preexisting rules is well-established, but it needs to be established if it is adequately countenanced. It is submitted that it is not. The concept fails to be objectivised sufficiently, and furthermore, judges are granted too much discretion in this respect. The Engelbrecht238 case is a clear example of such unfettered discretion.

While the Constitution does not establish a hierarchy of rights, judges and academics have acknowledged that some rights are more foundational than others, constituting a core of rights from which others are derived. The right to life is antecedent to all other rights in the Constitution.239 Surely the abuser's right to his life supersedes the abused woman's right to dignity or bodily integrity? It is therefore submitted that Satchwell J went too far when she declared that "even the quality of life, her home, her emotional and psychological wellbeing, her freedom as well as those interests of her children are protected by the right to private defence".240 While it could be stated that all three rights are of great importance, from an objective standpoint241 these rights have limitations and to meet constitutional muster must be linked closely to its purpose. 242 As Ally and Viljoen have noted, "the use of violence, especially lethal force, can only be justified if it is necessary, that is, if it is the only means to avoid death or grievous bodily harm". 243 Perhaps from the abused woman's position244 she was correct to kill her abuser. However, it is submitted that she had no way of knowing whether her abuser would have killed her at that very

238 S v Engelbrecht 2005 2 SACR 41 (W). 239 S v Makwanyane 1995 6 BCLR 665 (CC) para 326. 240 S v Engelbrecht 2005 2 SACR 41 (W) para 345, discussed in Snyman Criminal Law (2006) 106 n

36. 241 S v Engelbrecht 2005 2 SACR 41 (W) para 144. 242 Section 36(1)(d) Constitution. Ally and Viljoen 2003 SACJ 133, note that an important factor in

this evaluation is the question of whether or not less restrictive means are available to obtain the

stated objectives. 243 Ally and Viljoen 2003 SACJ 133. 244 Utilising the test set out in S v Engelbrecht 2005 2 SACR 41 (W).

moment. Indeed, the abuse had been going on for some time. There were therefore less-restrictive means of extricating herself from her situation. She could have called the police or left the premises.245 Although an abused woman is not expected to flee her home, in terms of the Constitution, it is submitted that the abuser's life takes precedence over the abused woman's right to remain in her home. Not only did Satchwell J in Engelbrecht246 not correctly identify whether or not the limitation on the accused's rights was justifiable,247 but the court failed to take cognisance of established precedence. Interpretation or development of the common law requires that the court must promote the spirit, purport, and objects of the Bill of Rights. It is therefore meant to adapt or correct applicable law to reflect common law, not to change it in its entirety.248 While proponents of the "battered woman syndrome" have attempted to introduce such evidence in cases (including the Engelbrecht case) to explain the circumstances that may have impacted upon the woman's conduct, it is submitted that South African courts -in any event -already do this to a limited

extent, as a matter of course.249

Later on, however, the court goes on to state that "the accused had not afforded the legal system, the South African police Service and society a fair chance of helping her. It had not been objectively reasonable in all the circumstances for the accused to kill the deceased when she did".250 How many times would it be necessary for the accused to have contacted the police before it would have been sufficient for her to have killed her husband? If the violence is to be viewed as "inevitable", if the abused woman is suffering from "battered woman syndrome", then it becomes clear that she could not have acted other than the way she did. It is submitted that the traditional element of imminence should remain in force. If the abused woman is being attacked and the threat is imminent (in the traditional sense), then she should be able to avail to herself of self-defence, although it should be noted that the court should also consider the fact that the battered women placed herself in this

245 S v Engelbrecht 2005 2 SACR 41 (W) para 448. 246 S v Engelbrecht 2005 2 SACR 41 (W). 247 S v Walters 2002 7 BCLR 663 (CC). 248 Ally and Viljoen 2003 SACJ 133. 249 See the case of S v Steyn 2010 1 SACR 411 (SCA). 250 S v Steyn 2010 1 SACR 411 (SCA) paras 418; 448.

dangerous situation.251 In the case of S v Norman,252 Judy Norman stayed with her abusive husband for 20 years. But now imagine that Judy killed her husband in a confrontational situation (ie where the attack was imminent). A woman who stays in an abusive relationship for 20 years cannot when an attack is taking place (that is to say when an attack is imminent in the traditional sense) state that she killed her abuser because she feared for her life. She had been attacked many times before. What makes this time different from the other times? She stayed, knowing that a future attack was a very real likelihood. The persistence of the attack (over 20 years) would militate against her claim of self-defence. In respect of putative self-defence, the abused woman's perspective and what she knew are critical. If this is true, then she cannot reasonably claim that she knew her abuser would kill her. Again, what would make this occasion different from the others? If, however, the abused woman "snapped" and really believed that her abuser would kill her, then she should be pleading non-pathological incapacity instead.253 Therefore any reference to mental and emotional characteristics, including recognised psychological disorder symptoms (such as "battered woman syndrome") should not be included in qualifying the

objective test.254 Therefore—

It would be better for the court to ask whether a reasonable person in similar (but

not all) of the circumstances would have considered the threat to be imminent. This

is the standard that is already used in South African law.255

While it is obviously true that if a reasonable person were defined to be just like the accused in every respect, he would arguably do exactly what the accused did under the circumstances. This, however, is an inherent difficulty that self-defence law confronts whenever it tries to determine which of the accused's characteristics are properly considered in making an objective inquiry: the perennial problem of

251 In terms of actio libera in causa.

252 S v Norman 378 SE 2d 8 12 (NC) 1989.

253 Burchell and Milton Principles of Criminal Law (1997) 109.

254 This view is supported by South African writers such as Burchell and Hunt South African Criminal Law (1970) 23 and De Wet and Swanepoel Strafreg (1985) 69.

255 Reddi 2005 SACJ 270-271.

"striking the balance between the defender's subjective perceptions and those of the

hypothetical reasonable person". 256

The case of S v Steyn257 is a case in which courts have demonstrated that they are competent to take the abused woman's situation into account. In this case the accused shot and killed her former husband when he threatened her with a knife.258 The deceased had abused the accused both mentally and physically over a number of years.259 On the night of the shooting, the accused told the deceased that she had contacted her medical aid to ascertain if they would pay for the treatment of her anxiety disorder. This statement sent the deceased into a rage and he threatened and choked her. As a result she fled to the bedroom. However, since she was not in good health and required food before taking medication for numerous medical conditions,260 she ignored the deceased's instructions to remain in the bedroom. When the deceased saw her his reaction was immediate and violent. He jumped up and proceeded towards her with a steak knife that he had been using to eat his meal with. She perceived this threat as deadly serious, and fearing for her life she

raised her revolver and fired a single shot.261

In determining whether the attack was imminent, the court a quo held that when the accused left her bedroom in order to fetch food from the kitchen, a reasonable person in the accused's position would have foreseen the possibility that the deceased in the condition and mood he was in might attempt to attack her. Therefore a reasonable person would not have proceeded to place herself in the position of danger where she might be forced to use a weapon to defend herself. The court found that in this instance she had acted unreasonably and therefore

256 Reddi 2005 SACJ 279-271. 257 S v Steyn 2010 1 SACR 411 (SCA) paras 418; 448. 258 S v Steyn 2010 1 SACR 411 (SCA) para 1. 259 For instance, he would often tell her that her would slit her throat, with a smile on his face, and

regularly locked her in the bedroom for extended periods of time. She often kept food in her bedroom to sustain herself during these periods. 260 These included high blood pressure, a stomach ulcer, and chronic back pain (S v Steyn 2010 1 SACR 411 (SCA) para 5). 261 S v Steyn 2010 1 SACR 411 (SCA) para 10.

negligently.262 The Court of Appeal found that the court a quo had misdirected itself by confusing the question of unlawfulness with the test of negligence.263 At any rate, the test for negligence would arise only once it had been established that the

accused's conduct was unlawful. 264

The court of appeal then turned its attention to the question of the lawfulness of the accused's conduct. The court noted that the conduct of the alleged offender was to be measured against that of a reasonable person on the basis that reasonable conduct is usually acceptable in the eyes of society, and therefore considered lawful.265 Modern legal systems do not insist on strict proportionality between the attack and the defence. Rather, the proper consideration is whether -taking all factors into account -the accused acted reasonably in the manner in which she defended herself or not.266 The factors relevant to the decision in this regard would include the following: first, the relationship between the parties; second, their ages and respective genders (given that Mrs Steyn was female, and that women tend under normal circumstances to be the physically weaker sex, she may have had to resort to the use of weapons to defend herself); third, the location of the attack; fourth, the nature, severity and persistence of the attack between the parties; fifth, the nature of any weapon used in the attack; sixth, the nature and severity of any injury or harm likely to be sustained in the attack; seventh, the means available to avert the attack; eighth, the nature of the means used to offer defence; ninth, the nature and extent of the harm likely to be caused by the defence; and lastly, the

value of the interest(s) threatened.267

When considering if these factors are sufficient to take the abused woman's situation into account, it becomes clear that they are adequate. For instance, in relation to the location of the incident it is clear that it could not have been expected of the accused to gamble with her life by turning her back on the deceased, who was

262 S v Steyn 2010 1 SACR 411 (SCA) para 17. 263 S v Steyn 2010 1 SACR 411 (SCA) para 18. 264 S v Steyn 2010 1 SACR 411 (SCA) para 18. 265 S v Steyn 2010 1 SACR 411 (SCA) para 18. 266 S v Steyn 2010 1 SACR 411 (SCA) para 19. 267 S v Steyn 2010 1 SACR 411 (SCA) para 19.

extremely close to her and about to attack her with a knife, in the hope that he would not stab her in the back. She would have had to turn around in order to return to her bedroom, by which time he would have been upon her and flight would have been futile.268 In relation to the history of the relationship between the accused and the deceased, it was such that she never had been able to resist him or his unlawful assaults during the many years that she had been the subject of his abuse. This shows that her training in conflict management had been of no use to her in her daily life. She had clearly been dominated by him.269 Given that she was in an emotional state and frightened as a result of having been assaulted by the deceased, she was entitled to leave her bedroom, in her own home, in order to get food. There was nothing unlawful in her action in doing so, and it cannot have been expected of her to telephone for assistance every time she needed to do something in her own

home.270

What these factors demonstrate is that the court already takes the abused woman situation into account, to a limited extent, as a matter of course. Since no single profile of a battered woman exists, it would be inadvisable to expect the court to go so far as to attempt to assess whether or not the killing was a reasonable response

for a battered woman. 271 However, the court would also have to take into consideration the difficulty that the abused woman faced in extricating herself from this position.

3 Conclusion

By utilising an imminence requirement, the courts have been able to limit the intrinsic scope of self-defence. Although it has been noted that the traditional requirement of imminence does not adequately cater for battered women's situations, it is submitted that the variations that have been introduced in foreign law will not work in principle in South African law. Not only does no precedent exist

268 S v Steyn 2010 1 SACR 411 (SCA) para 21. 269 S v Steyn 2010 1 SACR 411 (SCA) para 23. 270 S v Steyn 2010 1 SACR 411 (SCA) para 23. 271 Reddi 2005 SACJ 175.

for the use of such varied standards of imminence, but the range of criticisms levelled at these suggests that it would be better to stay with the status quo: the traditional element of imminence. Furthermore, any reference to the "'reasonable battered woman"' standard is unnecessary, since South African courts already take the abused woman's situation into account, to a limited extent, by considering several factors when determining whether the abused woman acted reasonably. One case which has illustrated this point well is S v Steyn.272 By rethinking certain factors in the situation as a set of relatively innocuous normative propositions, the abused woman's situation is consistent with standard propositions in the law of self-defence.

272 S v Steyn 2010 1 SACR 411 (SCA).

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Register of cases

Canada

R v Lavallee 1999 55 CCC (3d)

R v Malott 1998 1 SCR 123 (SCC) R v Melaragni 1992 96 (CCC) (3d) 78 (Ont Court GD) R v Nelson 1992 71 CCC (3d) 449 (Ont CA) R v Patel 1994 87 (CCC) 3d 97 (SCC)

England

Regina v Dudley Stephens 14 QBD 273 (1894)

South Africa

Du Plessis v De Klerk 1995 2 SA 40 (T) Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) Government of Republic of South Africa v Basdeo 1996 1 SA 355 (A) Ntanjana v Minister of Justice 1950 4 SA 398 (C) R v Cele 1945 NPD 173 R v Hayes 1904 TS 383 R v Jack Bob 1929 SWA 32 R v K 1956 3 SA 353 (A) R v Nomahleke 1928 GWL 8 R v Patel 1959 3 SA 121 (A) R v Ziklalala 1953 2 SA 568 (A) S v Baloyi 2000 1 BCLR 86 (CC) S v De Oliviera 1993 2 SACR 59 (A) S v Engelbrecht 2005 2 SACR 41 (W) S v Ferriera 2004 2 SACR 454 (SCA) S v Govender 2001 4 SA 273 (SCA) S v Makwanyane 1995 6 BCLR 665 (CC) S v Mnguni 1966 3 SA 776 (T) S v Mogohlwane 1982 2 SA 587 (T) S v Mokgiba 1999 1 SACR 534 (O) S v Motleleni 1976 1 SA 403 (A)

S v Ntuli 1975 1 SA 429 (A) S v Steyn 2010 1 SACR 411 (SCA) S v T 1986 2 SA 112 (O) S v Van Vuuren 1961 3 SA 305 (E) S v Walters 2002 7 BCLR 663 (CC)

United States

S v Norman 378 SE 2d 8 12 (NC) 1989 Tennessee v Garner 471 US 1 (1985)