defence pleas Marianne Merten Cape lawyers are preparing an unprecedented use of “battered women syndrome” as a crucial part of a self-defence plea being mounted by a Guguletu woman accused of murdering her husband.
The lawyers will seek to persuade the court that on the night of December 21 1998 Xoliswa Mngxaso was justified in stabbing her husband, David Mondera, because of the repeated abuse he had inflicted on her during their 10 years together. If the legal argument succeeds it will set a precedent broadening the scope of self- defence pleas in such cases – it would make the pattern of domestic violence relevant in assessing the guilt or innocence of an accused during trial. Self-defence or justification is, if successful, a complete defence entitling the accused to acquittal, as opposed to other defences, such as provocation or temporary insanity, which don’t guarantee acquittal but instead have the effect of reducing sentence. Self-defence is difficult to prove; the court has to be convinced the accused acted reasonably when using force to defend himself or herself. Battered women syndrome is accepted in courts in the United States, Australia, Canada and England, but has yet to be endorsed by a court in South Africa, where one out of four women is abused by her male partner. “This is about shifting the common law on self-defence to make the law more accessible to women,” said Women’s Legal Centre attorney Deborah QuSnet. “Making new law is always difficult.”
Men who murder their women partners – as happens once every six days according to research – as a rule successfully raise temporary insanity as a legal defence. But women who kill their male partners are usually found guilty, if not of murder, then culpable homicide. For example, in 1992 Lousia Chatburn, a mother of two and first- time offender, was sentenced in the Cape High Court to 25 years in jail for killing her husband Victor after years of living in an abusive marriage. On the night of the stabbing Mngxaso (36) hurriedly packed money, underwear and a knife into her handbag. She said something to her husband as he was sitting in the shebeen part of their shack and walked out. He followed. There was a violent struggle in the road near their home. According to Mngxaso’s lawyer she was hit on the head with a rock, stabbed and dragged towards the house. She pulled out the knife and tried to keep her husband at bay. Backed up into a corner, she stabbed him – once.
Neighbours beat her in the street afterwards. Mngxaso was arrested; her husband was rushed to the Guguletu Day hospital. The Wynberg Regional Court faces the difficulty of evaluating testimony of trial witnesses who may have conflicting interests due to relationships with the survivor and the deceased and who are part of a pattern of abuse they may or may not be prepared to admit.
For example, Mngxaso told her lawyers she frequently left her marital home to stay at her mother’s home when the abuse became too much. But her sister-in-law, Violet Mondera, testified Mngxaso left only when she had stolen money from her husband. Yet Mondera also testified that the couple often fought and that she at least once saw bruises sustained in an assault. She denied knowledge of a 1997 incident when her brother hit Mngxaso over the head with a primus stove and locked her in a shack for several days. The silence around domestic abuse remains an issue courts will have to continue to tackle. “For a woman to prove she was battered is very difficult. Domestic violence happens behind closed doors,” said QuSnet. Mngxaso’s lawyers will call a clinical social worker as expert witness on battered women syndrome, and possibly a second expert, when the trial resumes on December 18.