Anti-Gender-based violence organisations have lauded the appeal filed by the Centre for Applied Legal Studies (Cals) against a ruling that convicted a woman of killing her abusive husband, who had repeatedly raped and abused her.
Cals contends that the magistrate did not adequately consider the evidence presented by the defence. In November 2022, the woman, whose identity is protected due to her HIV status, was sentenced to 10 years in prison for stabbing her husband in the neck three times.
“Prior to her arrest in November 2018, she had spent a year facing beatings from her partner, so severe that she suffered a miscarriage. On the night she was arrested, she was held against her will and raped. This evidence was not challenged by the State at trial and accepted as fact by the court,” stated Cals.
CALS is appealing both the sentence and conviction of the woman and argues the magistrate failed to provide adequate reasons in the judgment and failed to evaluate the evidence at trial.
“Simultaneously we are launching a constitutional challenge to the Mandatory Minimum Sentences Regime and the Criminal Law Amendment Act. The constitutional challenge will demonstrate that these laws are unconstitutional as they fail to take into account the mitigating factors of psychological trauma suffered as a result of gender-based violence, especially intimate partner violence which leads to what is known as ‘battered woman syndrome’.”
Kavya Swaminathan of the Tears Foundation said the 10-year sentence, despite the history of abuse, raised significant concerns about the legal system’s understanding and treatment of domestic violence survivors.
“Cals’ appeal is critical, as it highlights the failure of courts to consider the context of long-term abuse and the psychological impact on survivors.
“This omission can lead to unjust outcomes, particularly when the survivor’s actions are framed solely as criminal without acknowledging the coercive control, trauma, and fear that led to those actions. The appeal by Cals is a necessary step towards addressing systemic gaps in how domestic violence is understood in legal proceedings.”
South African courts have made some progress in recognising the complexity of domestic violence, but often, women who kill their abusive partners in self-defence are still subjected to rigid interpretations of the law, she said.
“The defence of ‘battered woman syndrome’, which accounts for the psychological impact of long-term abuse, is sometimes overlooked or inadequately presented. Self-defence laws in South Africa are traditionally framed around immediate threats of harm, which might not always apply in situations of ongoing domestic violence.
“Therefore, when the abuse is cumulative and a woman reacts in what seems like an over-response or a delayed response, courts may struggle to align their judgments with her lived experience, leading to convictions like the one in this case,” said Swaminathan.
Legal expert Mpumelelo Zikalala said: “The role of the court is to teach people not to take the law into their own hands. In a situation of a long-term domestic abuse, the court may not be sympathetic to someone who says they have killed their partner in self-defence and they had not considered other avenues like protection orders.”
Promoting self-defence as a legal solution in these cases could deter survivors from seeking help through shelters, counselling and legal support, he said.
The Mercury