A judgment that found a woman guilty of murdering her abusive husband after he raped her during a domestic violence incident is being appealed as evidence of self-defence was disregarded.
The Centre for Applied Legal Studies (CALS) submitted its application this week to appeal the Palm Ridge regional court ruling on the grounds that the conviction and sentencing did not consider the evidence brought by the defence.
The appeal is that of a woman, who could not be identified due to her HIV status, who stabbed her husband three times in the neck during yet another domestic violence incident in November 2018. She was convicted and sentenced four years later in 2022 despite testifying that he had locked her up, raped her and threatened to kill her.
Asked why it took two years for the appeal to be filed, the centre's Dr Sheena Swemmer told TimesLIVE Premium this was due to the long process of obtaining transcripts from the initial case.
“That’s a travesty in itself. [Two years] is how long it took us to get court transcripts. You need the transcripts to appeal a case and the courts have special transcribers who work on tenders. Two years and we could not even get all the transcripts. We just launched with about 80% of it,” she said.
During her initial trial, the woman testified that she was raped by the deceased during the violent incident. She said she was locked in the house by the deceased who had assaulted her. She had a knife which was used to open the door of the shack. She admitted that she held onto the knife when the deceased approached to try to take it.
“The applicant was determined not to give up possession of the knife, likely because she did not want it to end up in the hands of the deceased, who had threatened to kill her on several occasions,” the CALS application said.
Testimonies by witnesses, neighbours and the woman’s daughter confirmed the abusive relationship, where the deceased husband would beat her until her eyes were bloody, had raped her on several occasions, and a fight was heard between the couple on the day of the murder.
In addition, expert evidence by clinical psychologist Dr Giada Del Fabbro, who had been practising for 10 years and worked with 20 cases of victims of domestic violence at the time, was presented to the trial court.
Fabbro testified that victims of domestic violence who are threatened with assault never quite know when they will happen, though they are imminent. She also raised evidence on the psychological phenomena of Battered Women Syndrome.
However, magistrate L Singh disregarded the evidence and went on to find the woman guilty of murder in April 2022 and sentenced her to ten years’ imprisonment in November 2022. The woman had been incarcerated since her arrest in November 2018.
However, CALS is challenging Singh’s decisions on several grounds, including ignoring the evidence brought by the defence, not considering the abusive relationship with the deceased, the abuse during the murder and the argument of self-defence.
In the application, CALS states that Singh found that the state proved beyond a reasonable doubt that the woman was guilty, but did not give reasons for the findings. Neither were reasons given why self-defence was rejected.
The magistrate had conceded in her judgment that the woman was a victim of abuse and accepted incidents that happened in the past, but did not consider the violence that occurred on the night of the murder.
“[Singh] concluded that the accused could have exhausted various other options to secure her safety or leave, despite the fact that the applicant had testified that she was worried about the safety of the children as well as her own, and further that she was locked in at the time and could not open the door.”
Singh is also being challenged for failing to consider the authorities and evidence brought before the court by both the state and the defence when making her judgment, CALS said.
“The learned magistrate Singh was provided with tools to guide her in making a cogent and fair finding. She elected not to be fully guided by these tools.
When it came to the testimony of clinical psychologist Dr Fabbro, CALS argued that the magistrate interpreted self-defence as not suitable because the woman was not in a “life and death situation”.
“The magistrate failed to consider that the crux of an abusive relationship is the victim never knowing when the continued assaults would become life-threatening. Had the magistrate correctly relied on the evidence adduced by Dr Fabbro, she would have made a finding that there is merit in the contention of the applicant (woman) who relies on private defence. The magistrate’s disregard to evaluate this evidence is a misdirection in law and will not be upheld by a court of appeal.”
Singh also neglected the testimonies of the multiple rapes, despite witnesses confirming that the woman had reported being raped previously by the deceased.
Instead, she treated the rape experience as an attempt for the woman to “escape liability” from the incident with the magistrate failing to consider that the rape happened more than once, said CALS.
“Had learned magistrate Singh drawn the inference that the applicant was raped multiple times by the deceased, and not just once on the night of the incident, the magistrate would not come to a conclusion that the version of rape of the applicant is unreasonable and an attempt to escape liability.
“It is inexplainable that the learned magistrate found that this evidence in support of private defence was not plausible to redound in favour of the applicant.”
In contesting the 10-year sentence, CALS argued that the court disregarded that the woman had been incarcerated for four years before her sentence was handed down in November 2022.
In addition, she was a first-time offender with no previous convictions and no criminal record.
“The court erred in not adequately taking into consideration the fact that the applicant’s right to life and healthcare was, and is still, currently being infringed by the inconsistent supply of chronic medication to the applicant by the Johannesburg Correctional Centre since the time of her incarceration as the applicant is HIV positive and on ARV treatment.”
Swemmer said the woman remained incarcerated despite the appeal application and the matter would be heard towards the end of October at the Johannesburg high court pending feedback and a final date from the Palm Ridge magistrate's court.
CALS attorney in gender justice Basetsana Koitsioe said the current trends in terms of sentencing indicate that expert evidence and witness testimonies were discounted when it came to cases where women are accused of killing their abusers.
“Our courts make assumptions about what is ‘reasonable’ for a woman who has suffered prolonged abuse to do when they face yet another experience of domestic violence. The harsh approach taken to sentencing fails to understand the psychology of abuse,” Koitsioe said.
