The price of the War­rior Woman’s free­dom

Mail & Guardian - - News - Athandiwe Saba

The Na­tional Pros­e­cut­ing Au­thor­ity (NPA) has de­cided not to pros­e­cute the mother who stabbed three men, one fa­tally, who al­legedly raped her daugh­ter.

But the de­ci­sion has puz­zled some le­gal ex­perts — many other women have killed in self-de­fence, yet they were pros­e­cuted, con­victed and have been be­hind bars for up to 10 years.

The Wits Jus­tice Project has re­searched cases in which women’s ar­gu­ments of self-de­fence for killing their in­ti­mate part­ners have failed in court. Ruth Hop­kins is mys­ti­fied by the NPA’s de­ci­sion not to pros­e­cute.

“The woman did some­thing that was very un­der­stand­able in the cir­cum­stances. But look­ing at the cases I have worked on and re­searched, I found it quite baf­fling, be­cause the women I have in­ter­viewed were in sit­u­a­tions where it’s ei­ther they die or the men they were pro­tect­ing them­selves against die,” she said.

The mother, who has been dubbed “War­rior Woman”, stabbed three men, in­clud­ing one to whom she was re­lated, about a month ago in Qumbu, near Queen­stown in the East­ern Cape. She found the three in a house rap­ing her daugh­ter.

When she was ar­rested, there was a public out­cry and the vil­lage ral­lied around the woman and her fam­ily, vow­ing to stand by her dur­ing the trial. But on Mon­day, the NPA swiftly removed the case from the roll, say­ing there was no rea­son­able prospect of a con­vic­tion.

Ac­cord­ing to Buhle Tonise, the mother’s lawyer, this was the best de­ci­sion the NPA could have taken. “I am proud of the de­ci­sion made by the NPA and that they re­alised quite early that there were no chances of win­ning this one. It’s con­cern­ing that they felt they had to charge her in the first place,” she said.

Be­fore the case was dropped a fam­ily friend said events have pushed the woman’s fam­ily to the brink, with the daugh­ter tak­ing the most strain. “She blames her­self and even says some­times that if she had not gone to the house that day her mother would not be fac­ing jail.

“She wasn’t heal­ing and her mind [was] oc­cu­pied with blam­ing her­self. She had a set­back and had to be ad­mit­ted to hos­pi­tal. But the bur­den has been eased now and the fam­ily is do­ing a lot bet­ter,” she said.

Pro­fes­sor James Grant, as­so­ciate pro­fes­sor of law at the Univer­sity of the Wit­wa­ter­srand, said two of the stab­bings could eas­ily be ar­gued un­der self-de­fence, but he was puz­zled that the woman was not charged for the third, fa­tal, stab­bing, when the man was try­ing to es­cape.

“There is no ques­tion in our law that you may use lethal force when some­one uses any de­gree of force against you or an­other per­son and en­dan­gers [an] in­ter­est of yours. Go ahead and kill them is the mes­sage from our law,” he said.

But Grant said the law changes the mo­ment the at­tack ends and the at­tacker tries to es­cape. “You can’t claim to be de­fend­ing your­self if the at­tack is over and the per­son is try­ing to es­cape.

“There has been some com­men­tary to the ef­fect that this woman en­joys the right to self-de­fence in all three cases. That com­men­tary is un­for­tu­nately mis­placed. If it’s true that one of the at­tack­ers had turned and was try­ing to es­cape, the mother may not use force in terms of the es­cap­ing at­tacker,” he added.

Grant sug­gested an­other de­fence the war­rior woman could have used, which would lean to­wards tem­po­rary insanity.

“You don’t have to be tech­ni­cally in­sane but you can be un­der such se­vere state of emo­tional shock that the law will un­der­stand that it can­not ex­pect you to have obeyed the law. This woman found three men rap­ing her daugh­ter. If this is true, I can­not imag­ine any court of law hold­ing her to a stan­dard we ex­pect you in those mo­ments to have abided by the rule of law,” he said.

Mean­while, the NPA is wait­ing to hear from the court the date of the in­quest. It’s spec­u­lated that the court may still find the mother must be held re­spon­si­ble for the man’s death.

Grant said the in­quest is a mere for­mal­ity. “At worst what would come out of it would be that the per­son in­deed died of un­nat­u­ral causes and the re­spon­si­ble party for the death is uMama. The court may for in­stance rec­om­mend a prose­cu­tion even, but ... the in­quest won’t give the NPA any ad­di­tional information to change its mind.”

For now, the war­rior woman and her daugh­ter have started to re­build their lives. But a case of rape in the high court against the two re­main­ing sus­pects awaits them.

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