The defence of non-pathological incapacity with reference to the battered wife who kills her abusive husband

• Jurisdiction: South Africa
• Author: P A Carstens
• Pages: 180-189
• Published date: 24 May 2019
• Citation: (2000) 13 SACJ 180
• Date: 24 May 2019

The defence of non-pathological

incapacity with reference to the

battered wife who kills her

abusive husband

PA CARSTENS*

J LE ROUX**

`A hundred years ago among the Tlingit people living in what is now southeast

Alaska, there was a belief that one should not beat one's wife. If ever a husband

deviated from this norm and beat his wife, his clan was required to pay her clan in

material goods. The whole community came together for a potlatch to exchange

goods. The whole community knew why they were there. Wife-beating was

expensive; wife-beating was shameful.There was very little wife-beating among the

Tlingit people a hundred years ago.'

(Marie M Fortune)

1 Introduction

A relatively recent development of the South African criminal law is the

recognition of the defence of `non-pathological' criminal incapacity.

The South African courts have ruled that an accused who is charged with

murder may escape criminal liability altogether if severe emotional stress was

present at the time of the act — even in the absence of proof of any mental

illness or defect. It is particularly in cases where a battered wife is accused of

murdering her abusive husband that this defence is raised.

1

Although the

South African courts recognize this defence, psychiatric opinion/evidence

(which is usually required to support and sustain this defence) is more

sceptical.

The aim of this paper is to evaluate the validity and the applicability of this

defence with reference to relevant South African case law where battered

wives were accused of murdering their abusive husbands. It will be argued

* BLC LLB LLD (Pret),

Associate Professor in the Department of Public Law, University of

Pretoria; Associate Member of the Pretoria Bar.

** Blur LLB (UPE) LLD (Pret),

Senior Lecturer in the Department of Public Law, University of

Pretoria.

1

See

S v Campher 1987

(1) SA 940 (A);

S v Smith

1990 (1) SACR 130 (A);

S v Wiid

1990 (1) SACR

561 (A); Also see JMT Labuschagne Die mishandelde vrou-sindroom, die redelike persoon-

standaard en die grense van noodweer' (1998)

THRHR

538.

180

(2000) 13 SACJ 180

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