Courts need to take into account Battered Woman Syndrome and other psychological effects of ongoing intimate partner violence.
Lesedi Modise* has been incarcerated for 2326 days. She is set to serve up to a further 2800 days if her conviction or sentence are not overturned.
Lesedi met Hlomu Malefu in a taxi one day while travelling from Kliprivier to Palm Ridge, Johannesburg. She doesn’t remember the exact date, but it was around April 2017. It was not long before they were in a relationship and deeply in love. Hlomu treated Lesedi well, most of the time. The problems would start later — after he lost his job, after he had been drinking.
She can’t recall when the beatings began, but it was a few months after they started dating. Hlomu would accuse Lesedi of sleeping with other men and disrespecting him, then slap or punch her and knock her down into the street. He would pull her along the road by her arm. Later, he would apologise and tell her he loved her and promise to stop the drinking. After two or three weeks, the cycle would begin again. A neighbour confirms that he often heard Hlomu fighting with Lesedi, leaving her looking “hurt”. Over time, the incidents escalated.
One weekend, Hlomu dragged Lesedi from the home she shared with her children, took her to his place of residence and locked her inside. There, she reports that he hit her, threw her to the floor, kicked her and raped her. Lesedi managed to call for help and her cousin recalls finding her locked inside the shack with blood all over her face, crying that she thought she was having a miscarriage.
Lesedi’s family encouraged her to go to the police to open a case against Hlomu. She says she tried to. The police sent her to the hospital with a form known as a J88 to note her injuries from Hlomu’s assaults, which the doctors completed for her. When she returned to the police station, they informed her that the officer responsible for sexual offences was not there. On another occasion, she tried to get a protection order against Hlomu, but when she called the police to serve it on him, they did not come.
On 4 November 2018, a familiar scene played out. Hlomu came to Lesedi’s home and threatened to kill her and her children and himself if she didn’t come with him to his residence. She sent a message to a friend asking them to call the police and then she went with Hlomu. Again, he locked her inside the dwelling against her will and raped her.
Afterwards, Lesedi tried to get away from Hlomu while he was sleeping, but she struggled to open the door. She attempted to pry the lock open with a pair of scissors and then a kitchen knife. Hlomu woke, got up and grabbed her by the wrist. She fought for control of the knife. Suddenly she felt something pouring over her head. She realised it was blood. Hlomu’s blood.
Lesedi screamed for help and begged a neighbour to kick the door down. She tried to stop the bleeding with a blanket and to call for an ambulance, but it was too late. Lesedi was arrested that night and taken into custody, where she has remained.
Her trial began in the Palm Ridge magistrate’s court after she had already been incarcerated for 1023 days. The matter faced several postponements, including a number throughout 2020 and 2021 because of the Covid-19 pandemic and lockdown regulations. Trial was finally set down for five days in late August and early September 2021, but was not finalised until March the following year.
In April 2022, Lesedi was convicted of murder — the intentional and unlawful killing of another human being. She was sentenced to 10 year’s imprisonment in November that year, in addition to the four years she had already served. There were significant delays in finalising her case. Reasons for this included: court workers were exposed to Covid-19; the recordings of the hearing could not be located; the courthouse experienced load-shedding and did not have diesel to run its generators; and there were not enough orderlies on duty at court.
Lesedi is represented by the Centre for Applied Legal Studies and a team of counsel led by advocate Kameel Premhid. Earlier this month, her legal team successfully petitioned the Palm Ridge magistrate’s court for leave to appeal her conviction and sentence to the high court. This process has once again suffered delays as a result of load-shedding and severe issues with acquiring transcripts from the trial, affecting access to justice.
Among other things, Lesedi’s legal team argues that the magistrate in her case failed to provide adequate reasons for her conviction and also did not properly consider Lesedi’s history of abuse. A finding of murder must mean that the state has proven beyond a reasonable doubt that Lesedi intentionally killed Hlomu and that she was not acting in self-defence.
The judgment does not seem to support this finding. Indeed, the judgment fails to set out sufficiently how the court reached the decision that Lesedi intended to kill her former partner, or address whether she was entitled to defend herself at the moment of his death. The court accepted that Lesedi had been abused both in the past and on the night in question, but still came to the conclusion that she was not facing any threat at the time.
In addition to the appeal, Lesedi’s legal team intends to launch a constitutional challenge to the Mandatory Minimum Sentences Regime and the Criminal Law Amendment Act. The challenge would show that these Acts are unconstitutional to the extent that they fail to take into account Battered Woman Syndrome and other psychological responses to the trauma of prolonged intimate partner violence. This calls instead for courts to consider a history of abuse as a mitigating factor in determining cases such as Lesedi’s.
Lesedi will probably have to await the outcome of her appeal in a correctional centre. The constitutional challenge may yet prevent other women from serving mandatory minimum sentences when they are faced with the terrible choice: him or me?
*Names and identifying features have been changed to protect the identity of the accused and her children.
Lee-Anne Gaertner is a communications specialist at the Centre for Applied Legal Studies, University of the Witwatersrand.
