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12 Jan 2016 14:31
Oscar Pistorius in court. (Reuters)
Oscar Pistorius argues that the Supreme Court of Appeal (SCA) exceeded its jurisdiction by questioning the trial court’s factual findings, and could thus not have convicted him of murder.
It also discriminated against him on the grounds of his disability, according to papers his lawyers filed with the Constitutional Court this week.
The SCA should not have reconsidered the trial court’s factual finding, namely that Pistorius genuinely, though erroneously, believed that his and Reeva Steenkamp’s lives were in danger (putative private defence).
Pistorius’s lawyers argue that the SCA erred by introducing an objective rationality criterion, of the “rational person”.
In doing so, the SCA ignored Pistorius’s subjective state of the mind, in particular his anxiety disorder, his serious physical disability and his feelings of vulnerability.
“The SCA unfairly discriminated against the applicant on the ground of his disability, vulnerability and anxiety, which is prohibited by section 9(4) of the Constitution.”
The SCA found Pistorius did not “entertain an honest and genuine belief that he was acting lawfully”. It thus rejected Pistorius’s putative private defence and convicted him of murder.
If the SCA had not impermissibly reconsidered this factual finding, it could not have set aside the conviction of culpable homicide and substituted it with murder, according to the papers.
“The legal requirements for putative private defence were not a question of law referred to the SCA under section 319 of the CPA (Criminal Procedure Act).
Pistorius, currently out on R10 000 bail, is expected to return to the High Court in Pretoria on April 18 for sentencing proceedings. He faces a minimum of 15 years in jail for murder, unless he provided substantial and compelling reasons to deviate from this prescribed sentence.
On Valentine’s Day in 2013, he shot and killed Steenkamp, his girlfriend, claiming he mistook her for an intruder hiding in the toilet of his Pretoria home.
Pistorius has already served one sixth, or 10 months, of the five-year sentence he was handed for culpable homicide. He was released from jail in October.
In his application lodged with the Constitutional Court, Pistorius also argued that the SCA committed legal errors in its approach to dolus eventualis.
According to the papers, the SCA failed to appreciate the inextricable relationship between the first component of dolus eventualis, which was foresight and reconciliation, and the second, which was knowledge or foresight of unlawfulness. – News24
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