Criminal Justice for Female Victims of Domestic Violence: Time to Deal Defencelessness a Final Blow

Abstract

At the Presidential Summit on Gender-based Violence (GBV) and Femicide in November 2022, President Cyril Ramaphosa instructed the Department of Justice and Correctional Services to implement criminal justice reforms that would prioritise the needs of domestic violence and GBV survivors. Ironically, from January to March 2023, shortly after the President’s instruction, South Africa experienced yet another increase in violence against women, with 969 murders and 1 485 attempted murders. Carrying out the President’s instruction may take the form of legislative amendments to offer stronger protection and/or reforming the defences available to survivors of abuse who, having lost confidence in the system, take the law into their own hands and end up as murder-accused in criminal proceedings. Two years following the President’s instruction, this article takes stock of progress and recommends a potential way forward. In terms of reforms to the Domestic Violence Act, some noteworthy changes took effect in 2023, including the option to apply for a domestic violence safety monitoring notice. However, in light of the already overstretched police force and the poor track record of protection orders in keeping women in abusive relationships safe, the likelihood that the notice will bring dramatic change is slim. Shifting the focus to the defences available to battered women who face murder charges after killing their abusers, the article examines the plea of private defence as well as non-pathological criminal incapacity. With reforms in this area sorely lacking, South African authorities have two options: Lawmakers may follow the example of Australia and Canada, which countries extended the scope of private defence by way of legislative amendments to accommodate abused women. This, however, is the least preferred option. Unlike the two foreign jurisdictions, South Africa has a much narrower definition of private defence and employs a mainly objective test. Alternatively, and ideally, the defence of non-pathological criminal incapacity based on provocation and emotional stress could be revived from its slumber erroneously imposed by S v Eadie in 2002. This can be achieved through a clarificatory appeal court judgment, without the need for legislation. The subjective nature of the test to determine criminal (in)capacity means that the abused woman’s state of mind – including what she perceived and believed to be true at the time of killing her abusive partner – can be taken into consideration.