A Verulam man has failed in his bid to overturn his conviction for assaulting his wife, with two KwaZulu-Natal judges saying that even though he was provoked “responding with violence will not be tolerated, nor will the striking of women”.
South Africa was a violent society, they said, and people seemed to resort to violence far too quickly when faced with taxing situations.
“The law is crafted so that it applies to all those who are subject to it. It cannot be selectively applied to afford those who do not control their tempers as a defence against allegations of criminal conduct at the expense of those who habitually control their tempers.
“The message must be clearly transmitted that consciously giving in to anger and responding to violence will not be tolerated,” judge Rob Mossop said, with acting judge William Nicholson concurring.
The man’s trial was heard in the Verulam magistrate’s court, where he was sentenced to three months imprisonment, wholly suspended for three years.
His wife testified that there were marital difficulties and that she had seen him with another woman at a restaurant. Believing that he was being unfaithful, she confronted him at his office. He responded by hitting and kicking her.
The message must be clearly transmitted that consciously giving in to anger and responding to violence will not be tolerated
— Judge Rob Mossop
Later that evening, at their home, the conflict again escalated and he hit his wife on her left ear with a flat hand.
He then apparently left the house to obtain medication for her. But while he was out, she experienced severe pain and drove herself to the local hospital where she was seen by Dr Nicholas Raymond. He diagnosed a traumatic tympanic membrane perforation of her ear and a bruise on her right shin.
Given the alleged circumstances of how she was injured, she was seen by several experts who formed part of a “crisis team”, and was hospitalised for five days.
Raymond testified at the trial, confirming his findings and said the injury to her eardrum must have been caused by a “significant force”.
The man’s version was put to his wife during cross-examination. He alleged she had verbally abused him, had used coarse and unbecoming language about his mother and sister. She had then pushed him from behind and started hitting him repeatedly on the back of his head.
In his evidence, he agreed that when he struck the complainant on her left ear, the blow was of sufficient force to knock her off her feet.
The magistrate found him guilty of aggravated assault and imposed the suspended sentence.
Aggrieved by this, he lodged an appeal against conviction and sentence.
Dismissing the appeal, Mossop said the man’s advocate suggested “private defence” — though this seemed not to have been raised at the trial.
Private defence is, in essence, a plea of self-defence.
“Accepting the appellant’s [the man’s] version that the complainant [his wife] was physically attacking him, there were several alternatives available to avoid what was occurring: he could have turned and faced her and admonished her to stop, he could have grabbed her hands or arms and physically stopped her from striking him.
“He suffered no injuries. In my view his response was out of proportion to what he was allegedly being subjected to,” Mossop said.
The high-water mark of the man’s defence was that he could no longer take his wife’s swearing and hitting the back of his head.
Mossop said this seemed to reveal not a reliance on private defence but merely exasperation over his wife’s alleged conduct.
While not wanting to adopt an “armchair critic” approach of what occurred, Mossop said he was of the view that the man’s conduct was not justified.
“That there was some provocation appears entirely likely. The complainant would not let the topic of his alleged infidelity rest. It appears she was determined to obtain a confession from him and she appears to have acted with a degree of dogged persistence.”
But, he said, a Supreme Court of Appeal ruling (in 2002) had put paid to a defence of provocation as a means of acquittal. It was now only a mitigatory factor.
He said the man had simply lost his temper and lashed out in rage. This was distinct, in law, from a loss of cognitive control.
Mossop said while there was some criticism of the woman’s evidence, her injuries had been objectively verified by Raymond.
The man had admitted hitting her on her ear and pushing her and had not established a legally justifiable explanation for his conduct.
Finding that the man was correctly convicted, Mossop said the suspended sentence was a sensible one given the fact that at the time of the trial the couple had apparently settled their differences and reconciled.
However, they later divorced.
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