Case Review: Evidence

• Jurisdiction: South Africa
• Pages: 377-384
• Citation: (2005) 18 SACJ 377
• Author: Nicci Whitear-Nel
• Date: 16 August 2019
• Published date: 16 August 2019

Case reviews 377

Evidence

NICCI WHITEAR-NEL

University of KwaZulu-Natal

Expert Evidence : Domestic violence cases

The accused, in the case of S v Engelbrecht 2005 (2) SACR 41 (WLD) was

charged with the murder of her husband. Her defence was justif‌i cation,

on the basis of battered woman syndrome. In support of her defence, she

called a clinical psychologist, and the gender co-ordinator for the Centre

for the Study of Violence and Reconciliation.

In the course of her judgment, Satchwell J conf‌i rmed the general

principles relating to the admissibility of expert evidence, and held that

expert evidence was highly relevant in cases involving domestic violence

because it assisted the court in understanding the social context of

domestic violence, the impact it had on the psyche of an abused woman,

and how those effects manifested themselves in her behaviour.

Satchwell J held that expert testimony was particularly relevant in dispelling

myths and stereotypes concerning abused women ( for example: that

battered women are not as badly beaten as they claim or they would have

left the abuser, and/or that the abused have a masochistic strain and thus

‘consent’ to abuse). The court held further that expert testimony could assist

in providing guidance to the court concerning whether the woman was able

to perceive the danger from her mate, why she did not f‌l ee if she perceived

imminent danger, what the nature and extent of the abuse was and why she

believed that killing her mate was the only way to save her own life.

Satchwell J’s decision is clearly correct in my view, and is wholly

consistent with her approach in the earlier case of Holtzhazen v Roodt

1997 (4) SA 766 (W) where she allowed general expert evidence regarding

the behaviour of rape survivors, but did not allow the evidence of a

psychologist regarding the credibility of a complainant.

Prosecutor’s duty to inform court of prior inconsistent

statement

Prior to the enactment of our constitution, statements made by prosecution

witnesses were regarded as privileged documents, and as such were not

handed to the defence. Nevertheless, the Appellate Division held that if a

prosecutor was aware of a material discrepancy between what the witness

said on the stand, and what was contained in his written statement, the

discrepancy should be drawn to the attention of the court.

(2005) 18 SACJ 377

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