PROVOCATION AS A CRIMINAL DEFENCE IN SOUTH AFRICA EXPLAINED

Written by: Nash Ricky Mogale
31 July 2023

INTRODUCTION

Consider this scenario: Thomas and Fiona are in a domestic relationship. Fiona is infamous within the neighbourhood for being a bully and abusing her husband, Thomas, both verbally and physically. One day, Fiona aggressively approached Thomas regarding a household task they were supposed to collaborate on. In response, Thomas politely requested that Fiona communicate with him respectfully or cease the interaction. However, Fiona proceeded to verbally abuse Thomas, which led to him becoming enraged and physically striking Fiona. Subsequently, Fiona laid a charge against Thomas for committing assault.

Thomas lost his temper because of the way Fiona constantly verbally abused him. Can he be held responsible for the wrongdoing, or can provocation be used as a defence in court?

WHAT IS PROVOCATION?

Provocation can be described as an act whereby a person acts out of anger due to being taunted by another person, ultimately resulting in retaliation for the taunting. Provocation is often called the temporary “loss of control” due to being taunted by another person.
Provocation may consist of words, conduct, or a combination of both. South African law is partly based on Roman and Roman-Dutch law, which did not regard anger, jealousy, or other emotions as an excuse for criminal conduct. However, courts do consider emotions justified by provocation a mitigating factor when it comes to sentencing.

CAN PROVOCATION FROM THE VICTIM BE USED AS A GROUND FOR JUSTIFICATION?

Even though provocation doesn’t serve as an overall legal defence in criminal proceedings, it can still be contended that it serves as a mitigating element, diminishing the gravity of an offence, such as downgrading the offence of assault with the intent to do grievous bodily harm to common assault. Provocation examines whether the accused intended to commit an unlawful act but acted impulsively due to an abrupt surge of emotions. Courts are also anticipated to consider it when gauging the level of blame for sentencing considerations.

In the past, there have been instances where individuals accused of wrongdoing successfully argued provocation as a defence and were acquitted. However, it’s crucial to note that South African courts approach such cases cautiously, examining the specifics and subjective aspects of each situation.
In a notable case (S v. Eadie 2002), a judge in the Supreme Court of Appeal highlighted that the courts must carefully weigh individual circumstances against established standards of behaviour. This involves a complex evaluation process to determine the credibility of the accused’s account. Consequently, it is not a simple task for an accused to rely on provocation as justification for unjustifiable actions.

CAN PROVOCATION BE USED AS AN ARGUMENT FOR A LIGHTER SENTENCE?

Yes, the judicial system is poised to comprehensively consider this factor when evaluating culpability, thereby playing a pivotal role in determining appropriate sentencing measures.

WHAT ARE THE OPTIONS IN DEALING WITH ABUSE?

Individuals possess the fundamental right to take assertive action when faced with potential harm or danger. This includes the option to promptly seek assistance by applying for a protection order either at the closest police station or magistrate’s court, thus invoking legal safeguards.

Alternatively, one can opt to take a proactive stance by filing a criminal charge at the local police station while concurrently pursuing the avenue to secure a protective order.

WHAT IS A PROTECTION ORDER?

A protection order is an order issued by the court that orders an individual with whom one has or had a domestic relationship to stop any abusive behaviour. This order also has the authority to prevent the person from seeking assistance from third parties to engage in such behaviours. In situations requiring urgent action, an interim protection order can be promptly issued at any hour, reinforcing your safety.

CAN A MALE APPLY FOR A PROTECTION ORDER AGAINST A FEMALE?

Any person who is a victim of domestic violence can apply for a protection order, including individuals of all races, genders, sexual orientations, and ages. In the case of minors, or if they are too young to act independently, the responsibility falls upon a parent, legal guardian, or a designated representative authorised to act on their behalf, always with the prerequisite of obtaining the minor’s consent.

Furthermore, this category extends to law enforcement officials, who are granted the authority to intervene and take appropriate measures when confronted with cases of domestic violence.

WHAT CAN A VICTIM DO IF THE ABUSER DISOBEYS A PROTECTION ORDER?

If a protection order has been granted and the abuser continues to act in contravention thereof, the victim can call the South African Police Service to arrest the abuser.

In domestic violence cases, the complainant will then file an affidavit of the offence committed, and the police, depending on the seriousness of the offence, such as threats and/or assault, will arrest the respondent and also seize any dangerous weapons, if any.

In circumstances where the police feel there are insufficient grounds for arresting the abuser, they will charge the abuser with breaching the protection order and notify her to appear in court on a specific date at a specified time. Once such a charge is laid, a prosecutor may not refuse to institute prosecution or withdraw the matter without the consent of the director of public prosecutions. If the respondent is found guilty of violating the protection order, a fine, imprisonment for a period not exceeding five years, or both may be imposed.

CONCLUSION

In cases where provocation is used as a defence, the court examines whether the accused had the deliberate intention to commit a crime or whether their actions stemmed from a sudden loss of control triggered by an emotional outburst.

It’s important to note that provocation isn’t a blanket defence in criminal proceedings. Instead, it can be presented as a factor to potentially lessen the severity of a crime, such as downgrading murder charges to culpable homicide.

In specific instances, provocation might cloud or even negate the individual’s recognition of the wrongdoing, impacting their intent to engage in the criminal act. This becomes particularly relevant when proving the “intent” component of a crime. Interestingly, asserting provocation can also inadvertently reveal intent, as it establishes a motive for the crime.

However, courts exercise caution when considering the acquittal of an accused in such cases, meticulously scrutinising the details of each situation. Courts typically focus on the personal and emotional aspects of the case in question. Contact Burger Huyser Attorneys: We boast years of experience in these matters. Our expert criminal lawyers are ready to assist in your defence and help you attain a protection order.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE