S v Engelbrecht

• Jurisdiction: South Africa
• Judge: Satchwell J
• Judgment Date: 16 February 2005
• Citation: 2005 (2) SACR 41 (W)
• Docket Number: 64/2003
• Hearing Date: 16 February 2005
• Counsel: C Geel for the State. D Vetten for the accused. K Pillay for the amicus.
• Court: Witwatersrand Local Division

Satchwell J:

Introduction

[1] Jaco and Anne-Marie A Engelbrecht were married to each other on 23 January 1993. On 29 June 2002 Mrs Engelbrecht killed Mr Engelbrecht. She has been charged with the crime of murder to which has been entered a plea of not guilty. B

[2] This judgment deals with the facts of the death of Mr Jaco Engelbrecht; the abuse to which Mrs Engelbrecht alleges she was subjected during her marriage and the effect thereof upon her; the incidence of domestic violence in South Africa; various theories explaining domestic violence; the contribution of expert evidence to C comprehension of the phenomenon of domestic violence; the law pertaining to wrongfulness and culpability; private defence as a ground of justification to wrongfulness and considerations of 'attack', 'imminence', 'interests threatened' and 'proportionality'.

[3] Throughout this trial I have been assisted by two D assessors - Adv Ingrid Opperman of the Johannesburg Bar and Prof Bobby Naudé of the Department of Criminal and Procedural Law at the University of South Africa. The decisions on the facts have been reached by all three of us. Decisions on the law are mine alone but I have been assisted in regard thereto by both assessors. E

[4] Mrs Engelbrecht was arrested on 30 June 2002 and remained in custody until 8 December 2003, when she was released on her own recognisance.

[5] Mrs Engelbrecht appeared before me on 13 August 2003 and, handing in a statement in terms of s 112 of the Criminal Procedure Act F 51 of 1977 entered a plea of guilty to the murder of Mr Engelbrecht. I convicted her of murder. Sentencing was postponed to 8 December 2003 for expert evidence to be available to assist the Court. The next day, 14 August 2003, Mrs Engelbrecht gave evidence in support of an application for bail. I refused bail on the grounds that I had convicted Mrs Engelbrecht of premeditated murder in respect of which G s 52 of Act 105 of 1997 prescribes the imposition of a minimum sentence of life imprisonment unless the trial Judge finds 'substantial and compelling circumstances' to be of application. [1]

[6] However, in the course of her bail application, Mrs Engelbrecht gave evidence that she had been the victim of abuse at the H hands of her now deceased husband. In the light of that information, I exercised my powers in terms of s 186 of the Criminal Procedure Act and invited both the Centre for Applied Legal Studies (CALS) and the Centre for the Study of Violence and Reconciliation (CSVR) to assist the Court. The request to both those bodies was that they furnish I information on the following basis:

'Judge Satchwell is concerned that, as the presiding Judge, she is properly appraised of legal developments both in South Africa and in other jurisdictions

Satchwell J

with regard to issues of domestic violence, A responses thereto by the survivor thereof, approaches by courts in defences and sentencing options where an abusive domestic partner is killed by the abused partner and other relevant matters.'

[7] In response, CALS applied to be admitted as amicus curiae, which application, opposed by the State, was granted by myself on 25 November 2003. [2] The B amicus has submitted to this Court several volumes of relevant documentation and Adv Pillay of the Johannesburg Bar presented argument on behalf of the amicus at the close of this trial. CSVR accepted the invitation to assist and Ms Lisa Vetten, Gender Co-ordinator at CSVR, testified as a witness in terms of s 186, being examined by both the State and the defence. We are C greatly indebted to both CALS and the CSVR for their generous and professional assistance in this matter.

[8] When the trial resumed for sentencing on 8 December 2003, Mrs Engelbrecht was represented by different attorneys and counsel and changed her plea to one of 'not guilty'. She applied for D release on bail, such release being granted, subject to certain conditions, on 9 December 2003. Application for the recusal of myself as the presiding Judge was made by the State on 11 December 2003 and refused.

[9] The trial commenced on 26 April 2004 and concluded on 22 November 2004. Advocate C Geel of the Office of the E Directorate of Public Prosecutions represented the State and Adv D Vetten represented Mrs Engelbrecht.

The death of Mr Jacobus Johannes Engelbrecht

[10] It is common cause that Mrs Engelbrecht killed Mr Engelbrecht F on 29 June 2003 at their residence at 10 Huisvan Flats, Burger Street, Krugersdorp. [3] Mrs Engelbrecht's evidence was that she had cuffed the hands of her husband with a pair of thumb-cuffs which she had purchased that morning [4] and which were found restraining Mr Engelbrecht after his death. [5] Mrs Engelbrecht testified that she covered her husband's head with a plastic bag, which was tied to him with the belt of a dressing G gown. [6]

[11] As a result of this treatment, Mr Engelbrecht suffocated. The cause

Satchwell J

of death is recorded in the post mortem report as A being consistent with asphyxiation or smothering or suffocation ('versmoring'). [7] Dr H J Scholtz, the head of the Department of Pathology at the University of the Witwatersrand and at the Department of Health, testified that where blood flow continues to the brain, the suffocated person would use air in the lungs for approximately one-and-a-half minutes, with brain B damage ensuing after three to five minutes. Where blood flow is cut off, then unconsciousness would result within 20 seconds and brain damage after three minutes. For blood flow to the brain to be cut off, approximately five kilograms of pressure would need to be exerted to the carotid artery.

The defence

[12] Mrs Engelbrecht denies criminal liability. Her defence C arises out of the context of and is located within the abusive relationship she alleges she suffered and endured at the hands of the deceased.

[13] It is submitted by the defence that a jurisprudence has developed relating to intimate homicides that supports a range of D defences, including those falling within the categories of self-defence, partial self-defence (where the battered woman was justified in acting in self-defence, but employed excessive force so to do), provocation and diminished criminal capacity (known in South African law as 'temporary non-pathological incapacity'). It is submitted that not one of these defences articulate comprehensively the E variety of experiences that constitutes the phenomenon of intimate murders.

[14] Accordingly, Mr Vetten, has argued for a 'self-standing ground of justification or excuse applied to the facts of this case unshackled by the values in forming other defences developed in different contexts for different reasons. This defence F develops the common law in a manner consistent with the Constitution of the Republic of South Africa Act 108 of 1996. It holds an accused woman to the standard of reasonableness and negatives the blameworthiness of her conduct in appropriate circumstances. It vindicates the values underpinning the Constitution. It accommodates a proper understanding of an abused woman within her context.' G

[15] In brief, the defence argues for a development of the normative theory of culpability. [8] Where an accused has an awareness of unlawfulness, criminal capacity and intention but commits an act in circumstances under which the law could not fairly expect a reasonable person to have acted differently, then Mr Vetten argues the Court should find H that Mrs Engelbrecht is not blameworthy and is excused from the act of killing Mr Engelbrecht.

[16] It is submitted that, on the particular facts of this case, where Mrs Engelbrecht 'who intentionally kills her abuser with awareness of the I

Satchwell J

unlawfulness of the act, and with criminal capacity A and in circumstances where the reasonable person in the position of the accused might well have done the same' a verdict of 'not guilty' should be returned on the charge of murder.

[17] The amicus has submitted that in the event of this Court testing the lawfulness of Mrs Engelbrecht's conduct against B an established ground of justification, the elements of such defence should be developed in order to promote the spirit, purport and object of the Bill of Rights [9] which would require interpretation of the defence 'so as to be relevant and accessible to abused women who resort to violence as a result of the abuse'. The amicus has argued further that the Court need C not confine itself to assessing Mrs Engelbrecht's conduct in the light of established defences but need only assess Mrs Engelbrecht's actions according to the 'legal convictions of the community' test which should be driven by the values underlying and embodied in the Constitution.

[18] This Court has no doubt that Mrs Engelbrecht was subjected to prolonged abuse - verbal, mental, sexual, financial, D psychological and physical - of such severity that her response thereto demands and deserves empathy and understanding of the entire community and of this Court. Further we have no doubt that Mrs Engelbrecht had previously done a great deal to avoid, evade and escape the abuser and his abuse.

[19] The question is whether or not the law can and should E acknowledge the stresses and strains under which Mrs Engelbrecht endured years of domestic violence so as to absolve her of criminal liability for her action in killing Mr Engelbrecht.

[20] The State's own witness, Dr Leon Fine, examined Mrs Engelbrecht and concluded that she was suffering from 'diminished F responsibility' at the time of the killing of Mr Engelbrecht. We are not asked to excuse from criminal liability under the guise of 'non-pathological criminal incapacity'. [10] It is not the evidence of Mrs Engelbrecht herself nor of the expert witnesses, Carr and Vetten...