S v SHONHIWA
HIGH COURT, HARARE
[Criminal Appeal HH 900-15]
October 8, 2015
CHIWESHE JP AND HUNGWE J
Criminal law - Statutory offences - Domestic Violence Act [Chapter 5:16], sections 3 and 4 - Interpretation - Intention of Legislature - Not all forms of domestic violence constitute criminal conduct.
The appellant was charged with and convicted of a single incident of physical abuse under the Domestic Violence Act [Chapter 5:16]. He was sentenced to four years imprisonment of which one year was suspended on the usual conditions. Aggrieved by this decision he appealed against both conviction and sentence.
Held, that the intention of the Legislature in the Domestic Violence Act was to limit domestic violence which constitutes criminal conduct to instances of physical and sexual violence only.
Quaere: whether the penalty provisions of the Domestic Violence Act ought to create a distinction between a single act of assault and a persistent pattern of physical abuse.
Semble: that the other categories of domestic violence stipulated in s 3(1) of the Domestic Violence Act do not constitute criminal conduct.
Legislation considered:
Criminal Law (Codification and Reform) Act [Chapter 9:23], s 89
Domestic Violence Act [Chapter 5:16], ss 3(1), 3(2)(a), 4 and 4(2)
South African Domestic Violence Act, 116 of 1998, s 1
HUNGWE J:
This appeal originates from the magistrates court in Chinhoyi. The facts are generally common cause. These can be stated as follows. The appellant visited his then girl-friend at her residence on 29 December 2013. Whilst in her presence his mobile phone rang. She snatched it from him before he could answer it. A struggle for the possession followed. It was during that struggle that the complainant says she was struck in the eye by the appellant. She did not seek medical attention for what may have been an irritation to her eye nor did she make a report to the police or anyone for that matter. It is not clear how the "injury" suddenly required medical attention some eight months later but on 15 August 2014 she visited Parirenyatwa Hospital for such attention. She was examined by a medical doctor who compiled a report. The report shows that the doctor found that the complainant had "sustained the following injuries: an eviscerated eye. Right. Post trauma and complicated by pan-endophthalmitis."
The appellant in his defence confirmed that the complainant had been accidentally struck on the eye a year before as they tussled for the possession of his mobile phone which had just rang. She was attended at a clinic where she received treatment for the eye which was tearing. He was later charged under the Domestic Violence Act [Chapter 5:16]. He denied the charge but after a trial he was convicted and sentenced to four years imprisonment of which one year was suspended on the usual conditions.
In his notice and grounds of appeal, the appellant raised several grounds of appeal against conviction as well as against sentence. More importantly in my view the appellant pointed out that the court a quo erred in convicting him when he had raised a good defence to the charge which defence the complainant herself had confirmed under cross-examination. The Domestic Violence Act defines domestic violence in s 3(1) in the following terms:
"3 Meaning of Domestic Violence and its scope
(1) For the purposes of this Act, domestic violence means any unlawful act, omission or behaviour which results in death or the direct infliction of physical, sexual or mental injury to any complainant by a respondent and includes the following –
(a) physical abuse;
(b) sexual abuse;
(c) emotional, verbal and psychological abuse
(d) economic abuse;
(e) intimidation;
(f) harassment;
(g)-(o)...
(p) any act of domestic violence described in paragraphs (a), (b), (c), (d), (e), (f), (g), (h), or (i) when it is perpetrated on the person of or property of the representative of the complainant."
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A reading of s 4 of the Domestic Violence Act shows that the legislature intended to limit domestic violence which constitutes criminal conduct to instances of physical and sexual abuse only; see s 4(2). Thus a crime in terms of the Act is limited to physical and sexual abuse as defined in s 3(1)(a) and (b) of the Domestic Violence Act. Relief for conduct which constitutes domestic violence is by way of a protection order as provided in Part 3 of the Act. The appellant was convicted of what amounts to physical abuse under the Act. Physical abuse is defined in s 3(2)(a) as "...any act or threatened act of physical violence towards a complainant." It seems to me that in order to sustain a conviction, it had to be shown that the accused committed an act of physical violence directed at the complainant. As such the State had to prove intention to act violently against the person of the complainant. The facts in this case show that the appellant was engaged in a tussle with the complainant in order to regain possession of his mobile phone. He did not intend to exhibit any violence, or threats thereof, towards her. In other words, she was struck by accident. She confirmed this herself. Yet the State outline gave the impression that he had struck her for asking why he had entered without knocking.
The second point to make appears to arise from the definition of domestic violence in terms of the Act. Whilst the Act criminalizes a single act of physical violence as domestic violence, not just assault as defined in s 89 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] it seems to me that in terms of penalty provisions, the law ought to create a distinction between a single act of assault and persistent pattern of physical abuse. Other jurisdictions maintain this distinction. In my respectful view, in order to attract the stiff penalties set out under the Act, there must be a pattern of some form of abuse prior to the act complained of, or leading to a prosecution.
In the United States of America, the Department of Justice Office of Violence Against Women defines domestic violence as follows:
"...a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone."
In the United Kingdom it is defined as:
"any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to:
- psychological
- physical
- sexual
- financial
- emotional"
The South African Domestic Violence Act, 116 of 1998 in s 1 defines domestic violence as:
"'domestic violence' means –
(c) emotional, verbal and psychological abuse;
(i) entry into the complainant's residence without consent, where the parties do not share the same residence; or
(j) any other controlling or abusive behaviour towards a complainant,
where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant;"
The South African Act then goes on to define the types of abuse set out in the definition to include "any act or threatened act of physical violence towards the complainant." It will be seen that our Act closely follows the South African Act. However, there is a world of difference in that the South African Act does not create a separate crime for physical or sexual abuse as ours does. I assume there is some satisfaction that the common law criminal provisions appear satisfactory to them. I would suggest that our penalty provisions make the distinction between a single act as opposed to a pattern of behaviour. Where, as here, a single act is charged as an act of domestic violence the usual penalty provisions set out in the Criminal Law (Codification and Reform) Act ought, in my view, to be applied. Unless a pattern is revealed as would qualify the complainant to apply for a protection order in terms of the Act, one must treat the first act as an out of character event rather than discriminate the offender on the basis of the status of the complainant. It in my view flies in the face of the equality before the law for similarly placed suspects. There is no justification for it.
In light of the above, there was no sufficient proof of an intent to commit an act of domestic violence as defined in the Act. As such, the State failed to prove the charge beyond a reasonable doubt and the appellant was entitled to an acquittal. In the result we make the following order:
The appeal be and is hereby allowed.
The conviction is set aside and the sentence is quashed.
The verdict of the court a quo is altered to read: "Not Guilty; Acquitted."
CHIWESHE JP concurred.
Murisi & Associates, appellant's legal practitioners
National Prosecuting Authority, respondent's legal practitioners
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