S v Engelbrecht

• Jurisdiction: South Africa
• Citation: 2005 (2) SACR 41 (W)

S v Engelbrecht
2005 (2) SACR 41 (W)

2005 (2) SACR p41

Citation	2005 (2) SACR 41 (W)
Case No	64/2003
Court	Witwatersrand Local Division
Judge	Satchwell J
Heard	February 16, 2005
Judgment	February 16, 2005
Counsel	C Geel for the State.; D Vetten for the accused.; K Pillay for the amicus.

Flynote : Sleutelwoorde

Evidence — Expert G evidence — Approach of H court — Generally — Matter in respect of which witness called to give evidence should call for specialised skill and knowledge — Witness must be person with experience or skill to render her or him expert in particular subject — Guidance offered by expert should be sufficiently relevant to matter in issue to be determined by Court — Expertise of any witness shouldn't be elevated to such heights that Court's own capabilities and responsibilities abrogated — Opinion offered to Court must be proved by I admissible evidence, either facts within personal knowledge of expert or on basis of facts proven by others — Opinion of such witness must not usurp function of Court.

Evidence — Expert evidence — Approach of court — When to be admitted — Expert testimony should properly be admitted in cases involving domestic J

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violence in following instances — Firstly, expert A testimony admissible to assist fact-finder in drawing inferences in areas where expert has relevant knowledge or experience beyond that of lay person — Secondly, where there are stereotypes which may adversely affect consideration of battered woman's claim to have acted in self-defence in killing her mate and expert evidence can assist in dispelling these myths — Thirdly, expert testimony B relating to ability of accused to perceive danger from mate may go to issue of whether she 'reasonably apprehended' death or grievous bodily harm on particular occasion — Fourthly, expert testimony pertaining to why accused remained in battering relationship may be relevant in assessing nature and extent of alleged abuse — Fifthly, by providing explanation as to why accused didn't flee when she perceived her life to be in C danger — Expert testimony may also assist in assessing reasonableness of belief that killing her batterer is only way to save her own life.

General principles of liability — Defences — Justification — 'Reasonableness' test in relation to justification defences is vehicle to ascertain legal convictions of community or community's sense of equity and D justice (boni mores) — In conducting enquiry, Court to be driven by values and norms underpinning Constitution — Constitution, being supreme law of land, is system of objective, normative values for legal purposes — Necessarily such approach will have at its core circumstances and perceptions of accused — In context of abused woman who kills her abuser, it requires that court have regard E to her experience of abuse as well as impact of abuse on her — Implications of gendered background to justification defences are that development of elements of recognised defences have largely ignored women's lives and their experience of violence — If it strains credulity to imagine what 'ordinary man' would do in position of battered spouse, it is probably because men didn't typically find themselves in that F situation — Definition of what is reasonable has to be adapted to circumstances which are, by and large, foreign to world inhabited by hypothetical 'reasonable man' — Test of 'reasonableness' incorporating both objective and subjective components, while reasonable woman not to be forgotten in analysis and deserving to be as much part of objective standard of reasonable person as did 'reasonable man'. G

General principles of liability — Defences — Justification — Private defence or self-defence as justification against unlawfulness available to abused women who kill their abusive spouses and partners — Facts and circumstances of each case fall to decide outcome.

General principles of liability — Defences — Justification — Justification H defences in context of domestic violence — Has to be accepted that domestic violence, in all manifestations of abuse, intended to and can establish pattern of coercive control over abused woman, such control being exerted both during instances of active or passive abuse as well as periods that domestic violence in abeyance — Compelling justification for focusing not only I on specific form which abuse can take over time and in particular circumstances, but pertinently on impact of abuse upon psyche, make up and entire world view of abused woman.

General principles of liability — Defences — Justification — Unlawful 'attack' against which abused woman defends herself or others can be one individual incident of abuse, series of violations or ongoing cycle of J

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maltreatment — Not all attacks required to be directed A at abused woman herself but there has to be some assault upon her for her to be so considered — Attack can, but need not necessarily, be physical in nature and can include psychological and emotional abuse, degradation of life, diminution of dignity and threats to commit any such acts.

General principles of liability — Defences — Justification — Interest protected — All rights enshrined in Constitution B constitute interests which are deserving of protection in defence of justification — It follows that interests which are attacked and which abused woman can protect, include her life, bodily integrity, dignity, quality of life, her home, her emotional and psychological wellbeing, her freedom as well as those interests of her child(ren) — In short, she defends her status as human being and/or mother. C

General principles of liability — Defences — Justification — Imminence of attack — In context of domestic violence — Where abuse frequent and regular such that it can be termed 'pattern' or 'cycle' of abuse then it seems that requirement of 'imminence' should extend to encompass abuse which is 'inevitable'. D

General principles of liability — Defences — Justification — Extent of defensive act — Abused spouse relying on defence of justification to justify attack on abuser — Defence implemented by abused woman has to be necessary to protect threatened interest — Execution of defensive act has to be only way in which attacked party can avert threat to her rights or E interests — To be decided on facts of each case — Essential that Court critically examines extent to which ordinary law of the land effective in preventing precipitating unlawful attacks and freeing abused women from attacks and their impact.

General principles of liability — Defences — Justification — Flight — What F constitutes — In context of domestic violence — Flight can be thought to encompass efforts made, not only to leave home but also to approach State authorities such as South African Police Service, family violence courts, helplines and shelters, family and friends and any other bodies or individuals which would assist abused woman to extricate herself from abuse or to provide refuge at time of attack — To extent that failure G to leave abusive relationship earlier can be used in support of proposition that she was free to leave at final moment, expert evidence can provide useful insights — Court has to be extremely cautious in seeking to rely upon examination of efforts taken by abused woman to extricate herself from abusive situation or to escape abusive spouse or partner — Judgment shouldn't be passed on fact H that accused battered woman staying in abusive relationship — Still less is Court entitled to conclude that she forfeited right to self-defence for having so done.

General principles of liability — Defences — Justification — Balance between attack and defence — In context of domestic violence — Usually accepted that if accused can have I averted attack by resorting to conduct which is less harmful than that actually employed by her, and if she inflicts injury on or harm to attacker which is unnecessary to overcome threat, her conduct didn't comply with requirement for private defence — That depends on facts of each case — In making determination of proportionality, account should be taken of particular circumstances of each case, which J

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include parties' respective ages, relative strengths, A gender socialisation and experiences; nature, duration and development of their relationship; content of relationship including power relations on an economic, sexual, social, familial, employment and socio-religious level; nature, extent, duration, persistence of abuse; purpose of and achievements of abuser; impact upon body, mind, heart, spirit of victim; effect on others who are aware of or implicated in B abuse; extent to which it is possible for State- legislated, formal institutional, informal personal bodies and individuals to intervene to terminate abuse; extent to which it is possible for abused victim to access and utilise any of those channels in event that they previously failed to unilaterally intervene to impose constitutional protections — Appreciation of situation by abused woman and her belief as to reaction required is objectively verifiable basis C for such perception — Such basis may need to be elicited through combination of evidence comprehensible to non-abused male or female judicial officer as well as expert evidence to interpret that which is not familiar or comprehensible to non-abused judicial officer. D

General principles of liability — Defences — Justification — Court declining to move away from individual ground of justification such as private defence to general defence of reasonableness and look more widely than rigid criteria of identified defence which is subcategory of reasonableness.

General principles of liability — Normative approach to criminal law — Court declining E ...