478 OBITER 2010

PRIVATE DEFENCE IN CONTEXT OF THE

BATTERED WIFE WHO KILLS HER ABUSIVE
HUSBAND/PARTNER

Ann Elizabeth Steyn v The State

(reported as S v Steyn 2010 1 SACR 411 (SCA))

1 Introduction
In South Africa where there is a high incidence of domestic violence, it is not
surprising to find our reported criminal case law abound with many examples
where battered spouses have killed their abusive partners. It is to be noted
that all these accused were charged with, and more often than not,
convicted of murder (see S v Campher 1987 1 SA 940 (A); S v Wiid 1990 1
SACR 561 (A); S v Kalogoropoulos 1993 1 SACR 12 (A); S v Arnold 1995 3
SA 256 (C ); S v Henry 1999 1 SACR 13 (SCA); S v McDonald 2000 2
SACR 493 (N); S v Ferreira 2004 2 SACR 454 (SCA); S v Engelbrecht 2005
2 SACR 165 (SCA); S v Mnisi 2009 2 SACR 227 (SCA); compare also S v
Loubscher 1979 3 SA 47 (A); S v Moses 1996 1 SACR 701 (C ); S v Di Blasi
1996 1 SACR 1 (A); see also Gobodo-Madikizela and Forster “The
Aftermath of Domestic Abuse” in Tredoux, Foster, Allen, Cohen and
Wassenaar (eds) Psychology and the Law (2005) 364-383; and Peter
“Domestic Violence” in Kaliski (ed) Psycholegal Assessment in South Africa
(2006) 146-161). In all these cases extreme provocation and emotional
distress ultimately led to the homicide and caused the accused to invoke
either non-pathological automatism (sane automatism) and/or non-
pathological criminal incapacity as defences. Consequently, it was argued
on behalf of the accused that they either acted involuntarily or without
criminal capacity, or at the most with diminished criminal capacity at the time
of the homicide due to provocation or emotional distress. In some instances,
where a voluntary act and criminal capacity were proved, the
provocation/emotional distress even had the effect that the state could not
prove intention beyond reasonable doubt for a conviction on murder, but had
to concede that only a conviction on culpable homicide was justified, as the
accused acted negligently under the circumstances (see Burchell Principles
of Criminal Law 3ed (2005) 358ff; Snyman Criminal Law (2008) 149ff;
Carstens and Le Roux “The Defence of Non-pathological Incapacity with
Reference to the Battered Wife who Kills her Abusive Husband” 2000 SACJ
180; Ludsin “Ferreira v The State: A Victory for Women who Kill their
Abusers in Non-confrontational Situations” 2004 SAJHR 642; and Louw
“Recent Developments in the Defence of Non-pathological Criminal
CASES / VONNISSE 479

Incapacity” in Kaliski (ed) Psycholegal Assessment in South Africa (2006)

50ff).
The notion that a battered (provoked) wife/husband/partner who kills
her/his abusive husband/wife/partner may or can invoke private defence
(self-defence) has rarely been considered by our courts (see, however, S v
Engelbrecht supra; and S v Ferreira supra). Provocation or emotional
distress, in principle, influences the voluntary act committed by the accused
and/or the criminal capacity of the accused and may affect the element of
intention, but seldom has any bearing on the element of unlawfulness. After
all, private defence requires an unlawful, immediate or imminent human
attack perpetrated upon the accused or another person (see Snyman 10; S v
Van Wyk 1967 1 SA 488 (A) 504E-F; S v Mokgiba 1999 1 SACR 534 (O)
550; and S v Mogohlwane 1982 2 SA 587 (T)). Since the disappointing
decision in S v Eadie (2002 1 SACR 633 (SCA)), in which the defence of
non-pathological criminal incapacity due to provocation was effectively
abolished (battered wives now have to rely on sane automatism, which is
difficult to prove) (see Snyman 237ff; and contra Burchell 430ff), battered
wives who now kill their abusive husbands/partners are “left in the lurch” as it
were, specifically in view of systematic assaults/attacks perpetrated upon
them by their abusive partners. From a legal point of view it seems as
though a “reconfiguration” of the principles of criminal law in these instances
is called for. The “reconfiguration” of the defence essentially relates to the
material requirements for the unlawful human attack, as well as the
requirements for the lawful fending off the attack, specifically in context of
domestic violence. It is for this reason that the judgment under discussion is
particularly instructive and to be noted.

2 The facts
The salient facts, which are relayed here in much detail for the foundational
context, appear from the judgment by Leach AJA (Mthiyane JA and Wallis
AJA concurring): On the evening of 9 February 2007, the appellant shot and
killed her former husband, a man who for years had abused her, both
mentally and physically, and who had assaulted her earlier that evening.
Pursuant to this incident, the appellant was charged with murder in the High
Court, Port Elizabeth. Her plea that she had acted lawfully in self-defence
was rejected and she was convicted of culpable homicide. In the light of the
weighty mitigating circumstances which were present, the appellant was
sentenced to three years’ imprisonment, wholly suspended on certain
conditions. With leave of the court a quo, the appellant appealed to Supreme
Court of Appeal solely against her conviction.
The essential background to the case indicates that the appellant was 53
years of age at the time of the fatal incident and had married the deceased
in 1971. The marriage relationship had substantially deteriorated over time.
The deceased was extremely jealous of the appellant and often accused her
of forming relationships with other men. In addition, the deceased drank
heavily and often abused the appellant, both mentally and physically. He
often told her that he would slit her throat with a smile on his face. He also
480 OBITER 2010

regularly locked her in her bedroom, at times for extended periods. So often
did this occur that she took to keeping food in her room to sustain her should
she be imprisoned in this way. On one occasion she was locked in her
bedroom for an entire weekend. Eventually the appellant divorced the
deceased. After the divorce, the appellant was admitted to a clinic where she
was treated for depression. Although the appellant and the deceased were
the joint owners of the former matrimonial home, and it had been their
intention to convert a section of the house into a “granny flat” in which she
would reside, the appellant was advised by a psychiatrist not to return to the
house. Consequently, after returning from the clinic she took up residence in
a flat for which the deceased undertook to pay the rent. Unfortunately,
financial restraints forced the appellant to give up this arrangement and after
two months she moved back to the former matrimonial home where,
although she no longer shared a bedroom with the deceased, her life with
him returned to what it had been before. The deceased continued to abuse
her mentally and physically and she did all the domestic duties expected of a
housewife. She often fled to her bedroom, which became both her sanctuary
and her prison. At times she locked herself in to prevent the deceased from
assaulting her while, on other occasions, the deceased ordered her to her
room or himself locked her in. The appellant was not in good health. She
had required surgery to her back after sustaining an injury but had continued
to experience back and body pain for which she took anti-inflammatory
medication. She had also undergone a resection of her colon which resulted
in her being obliged to eat small amounts of food regularly throughout the
day. In addition, not only did she require medication for an ulcer which had
to be taken after food but she was also on medication for high blood
pressure, cholesterol and depression. Consequently the appellant made
arrangements with her medical aid to return to the clinic for treatment.
On the day of the incident, the deceased telephoned the appellant and
told her to take meat out of the freezer for him to braai that evening. She did
so, and also prepared potatoes to accompany the meal. The deceased
arrived home after dark. He had clearly been drinking and was not in a good
mood. He went to light a fire on which to cook the meat. The appellant
poured the deceased a drink, took it to him and then seated herself on one
of the padded benches. She eventually plucked up sufficient courage to tell
the deceased that she had contacted her medical aid to ascertain if it would
pay for treatment for her anxiety at the clinic. On hearing this, the deceased
erupted. He verbally abused her in foul and offensive terms, telling her that
she had been born mad and would die mad. He then jumped up from where
he was sitting, grabbed her by the throat and began to hit her. When the
appellant’s pet German Shepherd dog jumped up, it drew the deceased’s
attention away from the appellant, and he released her in order to chase it
out of the room. She seized the moment to make her escape, and ran to her
bedroom where she locked herself in. The deceased shouted after her that
she was to stay in her room and that she would get nothing to eat that night.
The locked-in appellant, however, urgently needed to take her prescribed
medication and needed to have something to eat before doing so.
Unfortunately she did not have any food in her room that night and, in
CASES / VONNISSE 481

desperation, decided for the first time to ignore an instruction from the
deceased to remain in her room and go and fetch one of the cooked
potatoes she had earlier left in the kitchen. Scared and upset as a result of
the earlier assault, she armed herself with her .38 revolver which she hoped
would dissuade the deceased from attacking her again. On her way to the
kitchen, the deceased saw the appellant and his reaction was both
immediate and violent. He screamed that he had told her to stay in her room
and that he had already told her that she would get nothing to eat. Holding
the steak knife that he had been using, he jumped to his feet and rushed at
her, shouting that he was going to kill her, a threat which appeared to be
deadly serious. Fearing for her life, she instinctively raised her revolver and
fired a single shot at the deceased before turning and fleeing back to her
room where she locked herself in. She then telephoned a friend of hers, a
policewoman, who rushed to the house to assist her. It was then ascertained
that the deceased had been fatally injured, the bullet having passed through
his hand (which had presumably been held up in front of him) before
entering the body through the right upper anterior chest wall some 9,5 cm
below the right clavicle, passing through the right lung and exiting the right
chest posteriorly about 15 cm above the sacral bone. The bullet caused a
right-sided haemothorax and the collapse of the right lung. From the position
where he had been shot in the braai room, the deceased managed to get
into the kitchen before he collapsed and died from loss of blood.

3 The judgment
In essence the Supreme Court of Appeal had to assess the question
whether the appellant did act in private defence when she shot and killed the
deceased. This assessment entailed that the court had to evaluate the
veracity of the testimony of the appellant. The court noted that the trial court
found her to be a wholly satisfactory witness whom there was no reason to
disbelieve, and correctly concluded that her version could reasonably
possibly be true and that her guilt or otherwise had to be determined on her
own version. In this regard the court noted that the trial court formed a good
impression of the appellant and found her to have been a reliable witness.
The court then considered whether the trial court was correct in
concluding that, on her own evidence, the appellant had acted unlawfully. In
this regard the trial court found that when the appellant left her bedroom in
order to fetch a potato from the kitchen, a reasonable person in the
appellant's position would have foreseen the possibility that the deceased, in
the condition and mood he was in, might attempt to attack her. It held that a
reasonable person would therefore not have proceeded to place herself in a
position of danger where she might be forced to use her pistol to defend
herself. Accordingly it concluded that the appellant had acted unreasonably
and that the fatal incident could have been avoided if she had telephoned for
help and waited for assistance before she left her room. The reasoning of
the court was therefore that the appellant had acted negligently and was
guilty of culpable homicide. In assessing this stance taken by the trial court,
the Court of Appeal entertained the argument on behalf of the appellant that
482 OBITER 2010

the trial court had misdirected itself by confusing the question of

unlawfulness with the test of negligence or culpa, and the submission that
the issue of whether the appellant was guilty of negligence or culpa would
only arise once it had first decided that her conduct was unlawful. This
argument, the court ruled, was not without substance as it is indeed so that
when an accused raises a plea of private defence, the court’s initial inquiry is
to determine the lawfulness or otherwise of the accused’s conduct and that,
if found to be lawful, an acquittal should follow. At the same time, however,
the court was quick to observe that it was clear from its judgment that the
court a quo specifically turned its attention to the question of the lawfulness
of the appellant’s conduct and, in considering that issue, the courts often do
measure the conduct of the alleged offender against that of a reasonable
person on the basis that reasonable conduct is usually acceptable in the
eyes of society and, consequently, lawful. In this regard, and in view of the
circumstances of the present case where the facts were known, the court
ruled that it was unnecessary to decide whether the trial court misdirected
itself in the manner suggested as the court of appeal could itself determine
the lawfulness of the appellant’s conduct on those facts. The court therefore
stated and reiterated the fact that every case must be determined in the light
of its own particular circumstances, and it was impossible to devise a precise
test to determine the legality or otherwise of the actions of a person who
relies upon private defence. The court further observed that it is to be noted
that there should be a reasonable balance between the attack and the
defensive act as “one may not shoot to kill another who attacks you with a
flyswatter” (see Burchell 243; and Snyman 113-114, as quoted by the court).
The court, once again, listed the factors relevant to the decision in context of
private defence as the following: (i) the relationship between the parties; (ii)
their respective ages, gender and physical strengths;(iii) the location of the
incident; (iv) the nature, severity and persistence of the attack; (v) the nature
of any weapon used in the attack; (vi) the nature and severity of any injury or
harm likely to be sustained in the attack ; (vii) the means available to avert
the attack; (viii) the nature of the means used to offer defence; (ix) the nature
and extent of the harm likely to be caused by the defence (also see Snyman
107ff).
The court, in dealing with the argument on behalf of the state that the
appellant could have fled to her bedroom and thus could have avoided being
assaulted without the necessity of shooting at the deceased, remarked that
whether a person is obliged to flee from an unlawful attack rather than
entitled to offer forceful resistance, was somewhat of a vexed question.
However, the court ruled that in light of the facts in this case, it was
unnecessary to consider the issue in any detail. In addition the court
observed that it could not have been expected of the appellant to gamble
with her life by turning her back on the deceased, who was extremely close
to her and about to attack her with a knife, in the hope that he would not stab
her in the back (see also the reliance placed on S v Trainor 2003 1 SACR 35
(SCA) [13]). The court further ruled that the appellant could not be faulted for
offering resistance to the deceased rather than attempting to flee from him.
CASES / VONNISSE 483

Ultimately, in considering the lawfulness of the appellant’s conduct, the

court stated that it was necessary to keep in mind that she was obliged to
act in circumstances of stress in which her physical integrity and indeed her
life itself were under threat. It was necessary in such circumstances to
“adopt a robust approach, not seeking to measure with nice intellectual
calipers the precise bounds of legitimate self-defence”. In adopting that
approach, the court found that the appellant did not act unlawfully. She
found herself in a position of great danger in which her life was under direct
threat. There can be no doubt that in these circumstances she was entitled
to use deadly force to defend herself. Had she not done so, it might well
have cost her her life. The court observed that in these circumstances her
instinctive reaction, as she described it, of shooting at the deceased, who
was seemingly hell-bent on killing her, was reasonable and the court a quo
erred in finding otherwise. Consequently the court allowed the appeal and
the conviction and sentence were set aside.

4 Assessment
In assessing this judgment one is in the first instance struck by the robust
and principled stance taken by the court in allowing the appeal with
recognition of the requirements for private defence in context of domestic
violence. In addition, this judgment is, as far as it could be established, the
first reported judgment of the Supreme Court of Appeal where a battered
wife who killed her abusive husband successfully invoked private defence as
a ground of justification in context of domestic violence. In this regard it is
submitted that the judgment is to be welcomed. This judgment follows in the
wake of the significant judgment in S v Engelbrecht (supra par [340] 132f),
where it was also recognized that the defence of private defence or self-
defence as justification against unlawfulness was available to abused
women who killed their abusive spouses and partners with the caveat that
the facts and circumstances of each case fell to decide the outcome. Also of
note in the Engelbrecht judgment (supra par [342] and [343] 132h-i), is the
ruling that the unlawful “attack” against which the abused woman defends
herself or others could be one individual incident, a series of violations or an
ongoing cycle of maltreatment, and further (par [345] 133c-d), that all those
rights which were enshrined in the Constitution constituted the interests
which were deserving of protection in this defence (private defence) of
justification. According to this judgment, the requirement of “imminence” of
the attack (in context of private defence) should be extended to encompass
abuse which was “inevitable” (see par [349] 134c-d).
Although the judgment under discussion did not deal directly with the
judgment in Engelbrect (supra), it is nevertheless submitted that many of the
judicial sentiments expressed in Engelbrecht resonate in the judgment of
Steyn. The judgment in Engelbrecht certainly serves as a subtext for the
present decision. The court in the judgment under discussion (with reliance
on Burchell 243) stated that there should be a reasonable balance between
the attack and the defensive act, and that modern legal systems do not insist
upon strict proportionality between the attack and defence. The ultimate and
484 OBITER 2010

proper consideration, in these cases, is whether, taking all the factors into
account, the defender acted reasonably in the manner in which he/she
defended himself/herself properly (see par [19] of the judgment). The word
“reasonably” refers to the boni mores in context of the element of
unlawfulness and should not be confused with the test for criminal
negligence (in context of fault). It was also noted, albeit obiter, that the
element of unlawfulness preceded that of fault and that the issue of
negligence or culpa would only arise once it had first been decided that the
appellant’s conduct was unlawful (see par [17] to [19] of the judgment).
The significance of the judgment under discussion in context of private
defence becomes apparent with reference to the court’s observation that “it
is necessary to keep in mind that she was obliged to act in circumstances of
stress in which her physical integrity, and indeed her life, were under threat”
(as per par [24] of the judgment) (author’s own emphasis) (compare S v
Engelbrecht supra par [345] 133c-d: “all those rights which were enshrined
in the Constitution constituted the interests which were deserving of
protection in this defence [private defence] of justification ... Interests which
were attacked and which an abused woman could protect, include her life,
bodily integrity, dignity, quality of life, her home, her emotional and
psychological wellbeing, her freedom ... In short she defended her status as
a human being”) (author’s own emphasis). It is submitted that the Supreme
Court of Appeal, by implication, emphasised that when battered women who
kill their abusive husbands invoke private defence, the defensive act directed
at the unlawful attack should be assessed with reference to the abused
wife’s constitutional rights in context of the scourge of domestic violence.
This assessment also entails that the crystallized common-law requirements
for the determination of the proportionality between the attack and the
defence (as per par [19] of the judgment) ultimately depends on an
accumulative assessment of all the circumstances. There is thus specific
judicial recognition and understanding that in context of domestic violence
with concomitant emotional distress a court cannot “measure with nice
intellectual callipers the precise boundaries of legitimate self-defence (see S
v Ntuli 1975 1 SA 429 (A) 437 per Holms JA). It is submitted that this
approach is correct and certainly accords with the “reconfiguration” of the
justification of private defence in context of domestic violence as enunciated
in S v Engelbrecht (supra). Although this defence, against the backdrop of
domestic violence and dysfunctional relationships, should be carefully
scrutinised by the courts as not to afford a battered woman “a licence to kill”,
the ambit, scope and boundaries of private defence need to be balanced by
the values and norms underpinning the Constitution. Such an assessment
must also take cognisance (by way of expert evidence) of the very nature of
battered women’s lives and their experiences of domestic violence while
simultaneously dispelling stereotyping which may adversely affect judicial
consideration of a battered woman’s claim to have acted in private defence
(for instance why the appellant did not flee rather than offer forceful
resistance to the attack) (see par [21] of the Steyn judgment; and cf S v
Engelbrecht supra par [26] and [29] 54g-55b and 56a-d).
CASES / VONNISSE 485

In conclusion, it is submitted that the judgment in Steyn is a logical

extension (at least by implication) of the judgment in Engelbrecht (supra). It
is therefore essential that these two judgments should be read and
interpreted together as the leading precedents in instances where battered
wives invoke private defence in justification of killing their abusive
husbands/partners. In view of the judgment in S v Eadie (supra) in which the
defence of non-pathological criminal incapacity due to provocation was
effectively curtailed, as well as the substantive and formal difficulties facing
the battered woman who invokes the defence of sane automatism, it is
submitted that the judgment in Steyn offers an additional and effective
defence (private defence), within boundaries, to battered women who kill
their abusive husband/partners.

Pieter Carstens
University of Pretoria