Abstract:
Our Criminal Law has experienced a new defence which was developed by our Courts, known as the defence of non-pathological criminal incapacity. This defence is grounded in the acceptance that the affective function, along with the cognitive and conative functions of a person, is to be considered to determine capacity of an accused. When the defence is raised the capacity of an accused person is not considered in the context of a person suffering from mental illness or mental defect. The South African society is characterised, like so many other, by rampant and violent domestic violence. In many of these cases, the consequences are fatal. Women are generally at the receiving end of domestic violence. Victims of domestic violence suffer various forms of trauma including emotional, physical and psychological as a result of abuse. When this abuse is protracted these victims are generally classified as battered women. These intimate killings by abused victims of their abusers have seen them rely on this defence. The extent this defence is relied on could be distinguished by the killings in situations confrontational and non-confrontational where the basis for the reliance is not of a mental nature. Recourse and ultimate acquittal for these victims turned accused exists in some foreign jurisprudence. In the matter of S v Eadie 2002 (1) SACR 663 (SCA) the Supreme Court took a swipe at provocation and the manner in which the Courts applied the principles thereof which consequently has an effect on the defence of non-pathological criminal incapacity. This judgment prevails and the stare decisis rule apply in the absence of a contrary ruling. This dissertation considers inter alia the origin, development through the cases, the validity of the defence, the position of the battered woman and concludes with its finding that the judgment in S v Eadie supra does not exclude such victims turned accused from reliance on this defence. Copyright
