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A woman who has been sentenced to 10 years in jail for stabbing and killing her abuser in a domestic violence dispute will be the centre of a groundbreaking case to win back her freedom and force courts to take history of abuse into account.
The Centre for Applied Legal Studies at Wits University has taken up the case of a mother of two that could redefine how courts approach domestic violence survivors who retaliate against their abusers.
In the court documents, the centre is seeking to overturn the previous court’s decision, arguing the state has not proven beyond a reasonable doubt that the accused intentionally and unlawfully killed her partner. They are requesting that the murder conviction be overturned.
Basetsana Koitsioe, an attorney at Gender Justice, argues the magistrate failed to provide adequate reasons in her judgment for her guilty finding and failed to properly evaluate the evidence.
“We provided expert testimonies – one detailing our client’s lifelong experience of abuse and another on battered woman syndrome and the slow-burn effect of prolonged abuse.
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“We believe the court must consider these circumstances during sentencing and conviction, not just when determining guilt,” Koitsioe said.
“Despite acknowledging that our client was a victim of abuse, the magistrate dismissed the idea that she was experiencing abuse at the time of the murder, which is a problematic stance.”
The accused was in 2022 sentenced to 10 years for stabbing her partner three times in the neck. Prior to her arrest in November 2018, she had allegedly faced severe violence, including one that caused a miscarriage.
On the night of the incident, she was held against her will and raped by the deceased, according to the centre.
“The court took none of this into account when convicting and sentencing the woman. Instead, the magistrate’s suggestion that our client should have found another way to deal with her abuser is unrealistic, given the dynamics of domestic violence in SA.
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“The magistrate seemed to judge our client based on her demeanour, implying she should have shown more remorse,” Koitsioe added.
In addition to the appeal, the centre is launching a constitutional challenge, asking that courts consider a history of domestic violence when determining sentencing in such cases.
Koitsioe said current laws were inadequate in addressing the needs of domestic violence victims.
“One particular Act considers factors like being a first-time offender or having children, but it doesn’t account for the experiences of domestic violence survivors. This omission is unconstitutional.”
Sonke Gender Justice co-executive director Bafana Khumalo supports the application, arguing the court system needs to take into account the history and context that leads to women taking such actions.
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The organisation said many convicted women had previously sought help from the legal system, only to find it unresponsive.
“During the GBV summits convened by the president, many women told how they have reported matters to the police and, in many instances, even received protection orders. Yet the abuse continued unabated. This can’t be ignored,” Khumalo said.
Cassius Selala of the department of women, youth and persons with disabilities, said the case highlights significant issues within the criminal justice system.
He emphasised education and training for law enforcement and judicial personnel on the dynamics of domestic violence.
“The complexities must be addressed to ensure justice for victims.
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