Legal centre launches legal challenge for domestic violence victims

As Women’s Month comes to an end, the Centre for Applied Legal Studies (CALS) is launching a constitutional challenge to ask that courts consider a history of domestic violence in determining cases.

This comes as the centre has approached the High Court in Johannesburg on behalf of a mother of two who was convicted of murdering her abusive partner in 2022 during an incident of domestic violence.

In a statement on Tuesday, the head of the Gender Justice programme at CALS, Dr Sheena Swemmer, said an increasing level of domestic violence will almost certainly result in people dying, most often women.

Domestic violence victims may respond to violence

“In some instances, victims of abuse may respond to violence. For them, it literally becomes a situation of ‘him or me’,” Swemmer said.

“What we’re arguing is that our courts need to take this phenomenon into account to engage properly with psychological aspects of domestic violence and trauma.”

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As a result, the centre launched an appeal this week in the case of a domestic violence victim who was convicted of murdering her abusive partner.

The mother of two was sentenced to ten years’ imprisonment by the Palm Ridge Magistrates Court in November 2022.

However, prior to her arrest, the woman spent a year facing beatings from her partner so severe that she suffered a miscarriage.

Mother held against her will, raped

“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 was accepted as fact by the court,” the centre said.

CALS added that it is appealing its client’s conviction and sentence, claiming that Magistrate L. Singh did not adequately consider the facts presented at trial or offer sufficient justification for her guilty verdict.

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The centre contends that Singh did not give enough weight to their client’s circumstances when sentencing her to ten years imprisonment.

Along with the appeal, the CALS announced that it is also pursuing a constitutional challenge against the Criminal Law Amendment Act and the Mandatory Minimum Sentences Regime.

“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’,” the centre said.

Trends in sentencing

Attorney of the Gender Justice programme at CALS Basetsana Koitsioe said the current trends in sentencing show there is a pattern of courts discounting expert evidence and witness testimony in 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,” Koitsioe said.

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“The harsh approach taken to sentencing fails to understand the psychology of abuse.”