Oscar Pistorius ruling perplexes legal experts

Judgment day: Oscar Pistorius struggles to get into the Pretoria high court. (Mujahid Safodien, AFP)

Judgment day: Oscar Pistorius struggles to get into the Pretoria high court. (Mujahid Safodien, AFP)


As the Mail & Guardian went to print on Thursday, Judge Thokozile Masipa was only part-way through delivering judgment in the murder trial of Oscar Pistorius. But even with the actual verdict still to come, Masipa’s findings had already made key points — and had made four arguments on principles of law.

Disability does not make for unique vulnerability
Pistorius’s defence had argued — to the outrage of some lobby groups for disabled people — that his lack of mobility made him particularly vulnerable to crime, and more fearful than average. This, his lawyers implied, must be taken into consideration when measuring his actions.

“The accused is not unique in this respect,” Masipa said of Pistorius’s disability and resulting greater sense of threat.
“Women, children, the elderly and all those with limited mobility would fall under the same category.”

So would it be reasonable for women and children to wield firearms? “I do not think so, as every case would depend on its own merits.”

Likewise, Masipa said other aspects of Pistorius’s background, such as growing up in a paranoid environment, were of limited use in judgment. It would serve as an explanation for actions, she said, but an explanation “is just that: an explanation. It does not excuse the conduct of the accused.”

Pistorius was untruthful, but that does not imply guilt
“Inconsistent”. That was how Masipa first described Pistorius’s approach to explaining exactly how he came to kill Reeva Steenkamp.  Less than two hours into her judgment, Masipa was already clear: what Pistorius said he had been thinking and how he acted in the early hours of that morning could not be reconciled. 

By the time Masipa was done for the day she had also labelled Pistorius a “very poor witness”, “not truthful” and “not candid”. 

Based on his evidence, Masipa said, a number of things made no sense, including:

  • Why Pistorius did not check with Steenkamp, who he thought was in bed next to him, whether she had heard a noise he assumed had been made by an intruder;
  • Why Pistorius did not check whether Steenkamp had heard him after he first spoke to her, and before he set off to investigate the noises;
  • Why Steenkamp, just metres away on the other side of a toilet door, neither communicated with Pistorius nor phoned the police; and 
  • Why Pistorius fired four shots through the door before running back to find Steenkamp.

“These questions shall unfortunately remain a matter of conjecture,” Masipa said.

But what weight untruthfulness should carry in judgment depends on the details of a case, she said, and an accused is not obliged to convince a court of the truth of his version of events, even if that version seems highly improbable.

“The court is not entitled to convict unless it is satisfied not only that the explanation is improbable but, beyond any reasonable doubt, is false.”

A gun can be a first resort, but rarely
In dealing with the possibility that Pistorius is guilty of culpable homicide, Masipa offered a hypothetical example. A man wakes up to see a figure hovering over him. In a state of panic he reaches for a firearm and shoots. In such a case, said the judge, “his conduct would have been understandable, and perhaps excusable”.

That, after all, would constitute a “real emergency”, at least in the mind of the shooter. But that was not the situation with which Pistorius was confronted, Masipa said. 

He had time to think, time to reflect and time to call security guards or the police, or just shout to neighbours for help. It is unreasonable to have done none of those things, she found.

Not that sleeping with a loaded gun to hand is reasonable to begin with, regardless of the realities of crime.

“Many people in this country have experienced crime or the effects thereof directly or indirectly at some time or another,” Masipa said. “Many have been victims of violent crime, but they have not resorted to sleeping with firearms under their pillows.”

Dolus eventualis is tricky, even for judges and lawyers
In South Africa murder does not have to be premeditated, but it must be carried out with intent, and the law recognises three types of intent. Direct intent, or dolus directus, is simple enough, and indirect intent, or dolus indirectus, requires an accused to accept that death could be a consequence, even if it is not the main goal. 

Dolus eventualis, the third type of intent, requires foresight of causing death, not by some objective standard but in the mind of the accused.

In the Pistorius case, Masipa boiled the test for eventualis down to two questions: Did Pistorius foresee that Steenkamp could have been behind the bathroom door when he shot at it, and did he fire anyway, having reconciled himself with the possibility that it could be her?

“The evidence before this court does not support the contention,” Masipa said. 

“How could the accused reasonably have foreseen that the shots he fired would kill the deceased?”

On that basis, she said, Pistorius “cannot be found guilty” of murder on the basis of dolus eventualis.

Various legal experts, from advocates to academics, were puzzled by this reasoning, and predicted that the state may appeal that finding regardless of the outcome of the case as a whole. 

Dolus eventualis, they said, should apply to the intruder Pistorius may have thought to be behind the door. 

Four shots into a small space containing a person, they argued, shows the acceptance of the possibility of killing someone.

Phillip de Wet

Phillip de Wet

Phillip de Wet writes about politics, society, economics, and the areas where these collide. He has never been anything other than a journalist, though he has been involved in starting new newspapers, magazines and websites, a suspiciously large percentage of which are no longer in business. PGP fingerprint: CF74 7B0F F037 ACB9 779C 902B 793C 8781 4548 D165 Read more from Phillip de Wet

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