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Hearing in leave to appeal conviction of domestic violence victim

- Lee-Anne Bruce

CALS represents a mother of two who was convicted of killing her abusive partner during an incident of domestic violence in leave to appeal

On Tuesday, 3 December 2024, the Palm Ridge Magistrates Court is set to hear an application for leave to appeal in a case where a mother of two was convicted of murdering her abusive partner during an incident of domestic violence. Together with the appellant, the Centre for Applied Legal Studies is launching a constitutional challenge requiring courts to consider a history of domestic violence when determining a victim’s response to domestic violence.

On Tuesday, 3 December 2024, the Palm Ridge Magistrates Court is set to hear an application for leave to appeal in the case of a domestic violence victim who was convicted of murdering her abusive partner, and sentenced to ten years’ imprisonment. Prior to her arrest in November 2018, the victim had spent a year of abuse from her partner so severe that she reported suffering a miscarriage. On the night she was arrested, her partner held against her will and she was raped. This evidence was not challenged by the state at trial and was accepted as fact by the Court.

The appellant is represented by the Centre for Applied Legal Studies (CALS). We are seeking leave to appeal both our client’s sentence and conviction, arguing that the judgement by the magistrate failed to provide adequate reasons for the guilty finding and the magistrate failed to properly evaluate the evidence at trial. We also contend that the magistrate did not give enough weight to our clients’ personal circumstances in sentencing her to ten years’ imprisonment.

Domestic violence is recognised as a widespread and life-threatening problem globally, particularly affecting women and children. Though gathering data on domestic violence is difficult, it is thought that up to 50% of women in South Africa may experience intimate partner violence in their lifetimes. The difficulty of gathering of data is due to nature of domestic violence as it occurs in private spaces and survivors face challenges in reporting abuse,

“The almost inevitable culmination of escalating domestic violence is that someone will die, most often women,” says Dr Sheena Swemmer, head of Gender Justice at CALS. “In some instances, victims of abuse may respond to violence with violence. For them, it literally becomes a situation of ‘him or me’. What we’re arguing is that our courts need to take this phenomenon into account, to engage properly with the psychological aspects of domestic violence and trauma.”

In addition to the appeal, we are simultaneously launching a constitutional challenge to the Mandatory Minimum Sentences Regime and the Criminal Law Amendment Act. The constitutional challenge seeks to demonstrate that these laws are unconstitutional as these laws 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 current trends in sentencing show that there is a pattern of courts discounting expert evidence and witness testimony in cases where women are accused of killing their abusers,” says Dr Sheena Swemmer. “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.”

The application for leave to appeal is set to be heard by the Palm Ridge Magistrates Court on Tuesday, 3 December 2024.

Read our papers in the matter here.

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