Losing your temper with a nagging and provoking wife is no defence for assaulting her
Losing your temper with a nagging and provoking wife is no defence for assaulting her, a judge found in confirming the husband’s conviction and subsequent suspended jail sentence on appeal.
The husband, who is not named as the couple have subsequently been embroiled in divorce proceedings, turned to the Pietermaritzburg High Court, after the Verulam Magistrate’s Court convicted him of assault and sentenced to him three months’ imprisonment, wholly suspended for three years on certain conditions.
The complainant was the appellant’s wife but the marriage was experiencing some difficulties and they subsequently decided to get divorced.
The wife testified that in May 2018, she had seen her husband sitting with another woman at a restaurant in a shopping mall. She had concluded that he was being unfaithful to her and had taken umbrage at his apparent brazen conduct.
A short while later, she had gone to his office and confronted him. She alleged that while they were in the boardroom at his office, he had assaulted her by hitting and kicking her, all of which the husband has denied.
After the incident in the boardroom, he had returned home at the end of his working day. The simmering discontent between the couple had continued to build.
It had erupted in the kitchen when the wife had again confronted him about his conduct. That had led to the husband slapping the complainant on her left ear.
He had then rushed to the pharmacy to get her medication but she had driven herself to hospital as the pain had become unbearable.
She had been seen by a doctor.
The doctor had testified that she had suffered a traumatic tympanic membrane perforation to the left ear and a haematoma to the right shin. She had been admitted to hospital and remained there for days.
The doctor told the court that the injury to the complainant’s eardrum would have required the infliction of “significant force”.
The husband’s version was that he had been at the restaurant with a client. When his wife had confronted him at home, she had allegedly verbally abused him and had used coarse and unbecoming language about his mother and sister.
She had pushed him from behind and commenced hitting him repeatedly on the back of his head, all the while swearing at him and continuing to use unbecoming language about his mother and sister.
He said that he could neither take the abuse nor put up with her hitting him on the back of the head. He had swung around and, with an open hand, had struck out at her.
Judge Robin Mossop said the husband’s defence was unclear. “Was it that he had been provoked by the complainant? Or had he acted in private defence? Or had he merely lost his temper.”
While the husband had insisted that it was private defence, the judge said none of the requirements for the defence had been met.
“Accepting the appellant’s version that the complainant was physically attacking him, there were several alternatives available to him to avoid what was occurring: he could have turned and faced the complainant and admonished her to stop what she was doing.”
The judge said he could have also grabbed her hands or arms and physically stopped her from striking him.
“After all, he was not being set upon by a person physically stronger than himself nor did he ever state that he felt his well-being was in danger … In my view, his response was out of proportion to what he was allegedly being subjected to,” the judge said.
“It would not be unfair to state that our society is generally a violent one and that people seem to resort to violence far too quickly when faced with taxing circumstances. Martin Luther stated that nothing good ever comes from violence. He was correct.”
Judge Mossop said that while he had not been there to experience what the husband had done, the husband’s conduct was not justified under the circumstances.
“Society requires that there must be some degree of proportion between the attack and the response. Where excessive force is applied to a relatively trivial threat, it is not justified and it is, thus, unlawful.”
Judge Mossop said it was probable that the wife had provoked the husband as she would not have let the topic of his alleged infidelity rest.
“It appears that she was determined to obtain a confession from him, and she appears to have acted with a degree of dogged persistence.”
But, the judge said, provocation could no longer result in an acquittal but might be viewed as a mitigatory feature.
“The law is crafted so that it applies to all those who are subject to it, and it treats all as equals. It cannot be selectively applied to afford those who do not control their tempers a defence against allegations of criminal conduct at the expense of those who habitually control their tempers.”
In turning down the husband’s appeal, the judge said: “The message must be clearly transmitted that consciously giving in to anger and responding with violence will not be tolerated, nor will the striking of women.”
Pretoria News
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