Oscar - why Judge Masipa was correct

2014-09-15 07:32

There appears to be widespread dissatisfaction with the Oscar Pistorius judgment with much of it ostensibly principally stemming from the difficulty that people have in understanding the judges logic about the role of intent.

Commentators, journalists, talk show hosts and a large contingent of the public have been expressing their discontent and bewilderment at how the judge could have found that "the accused did not intend to kill anyone, let alone the deceased" when he fired four high calibre bullets into a small cubicle knowing someone to be inside.

Many academics and practitioners in the legal fraternity have equally questioned the application of the principle of "dolus eventualis" and how it's requirement could not have been considered to have been met in the circumstances described.

There have also been comparisons to the Jub Jub case, and, as one journalist put it "evidently firing four bullets into the door of a small toilet cubicle is less predictably deadly than drag racing according to our courts" (paraphrased).

In explanation of the above there have been some scholars referring to the distinction in the concepts of "error in objecto" - i.e. labouring under an error of the identity of one's target, and "aberratio ictus" - i.e. missing A and hitting B. The former attracts liability in the form of dolus and latter less likely to do so.

 I think all these explanations and the persisting confusion is arguably much easier to clear up and does not require such a great leap in understanding liability for murder in the case at hand. The judge further perhaps did not explain this adequately in her reasoning, and as paraphrased above.

 Perhaps one of the greatest misconceptions which is contributing to the confusion is a general belief that dolus (necessary in a case of murder) is another word for intent. This is not the case. Dolus is a very specific kind of intent - it is intention to carry out a certain act, coupled with the knowledge that such an act is wrongful.Therefore what the judge has essentially found is that, although Oscar may very well have intended to kill the person behind the door (regardless of who he thought it may have been), he believed that he was justified in doing so on the basis that he feared being attacked.

 This is the premise upon which "putative private defence" (i.e. self defence of a person labouring under the impression they may be attacked, even though there is in fact no threat) is based. In illustration, in "traditional" private (self) defence, A attacks B (to kill) and B responds with force in protection of his life, thereby killing A. B's innocence would be based on two grounds - firstly, in the circumstances, his life was in fact under threat, and he could thus respond to protect his life with an equal show of force and take A's life. Secondly, he believed his life was under threat and therefore believed he was entitled to kill A.

 Putative self defence is present when B's life was not, in fact, under threat, and thus only the second liability-restricting scenario above can apply. This is the case in Oscar's circumstances, when his life was not under threat, and therefore could not rely on traditional self defence. However, he would still be able to escape liability for murder, even it is found he intended to kill the person behind the door, on the basis that he believed his life was under threat. This would remove the prerequisite dolus, constituting both of intention, and knowledge of wrongfulness. Obviously if he had known it was Reeva, he could not rely on either ground because he could not have been believed he was entitled to kill as he could not have believed his life was under threat (unless of course the circumstances would have justified it, in which case he would have needed to plead it).

 In this regard, the comments of Smallberger JA in S v de Oliviera 1993 (2) SACR 59 provide some insight:

"In putative private defence it is not lawfulness that is in issue but culpability (‘skuld’). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.”

Judge Masipa had therefore found (albeit with perhaps not the most lucid wording), that Oscar may have had the intention to kill, but because he didn't think it was Reeva behind the door (for the reasons provided in her judgment), he could only have thought it was an intruder, and therefore believed he was entitled to shoot (even to kill) when he heard the sound causing him to shoot.

 Once this has been established, Oscar cannot be found guilty of murder as it requires the subjective element of dolus (in its totality) to be present. What is then asked, is if this was in fact the case (that he believed his life was in danger), was it a reasonable belief to have held)?. I.e. would another person in his position, have held the same belief, and would they, holding such belief, have acted the way Oscar did?

 The answer to this question, the judge found, was no. Therefore he acted negligently (measured against a hypothetical third party in his position), and must therefore be found guilty of culpable homicide.

 The difference therefore, in the case with Jub Jub, is that, it was accepted that Jub Jub had the prerequisite dolus, in that he did foresee (subjectively) that, by taking substances and drag racing close to a school, he may kill someone, and he reconciled himself with that. He could not have had a belief that he was entitled to kill someone in those circumstances, and therefore the full scope of dolus was present - intention, with the knowledge that the conduct is wrongful.

 Whether the judge came to the right conclusion (regarding the question of subjective intention to kill) by Jub Jub is accurate, is perhaps up for debate. But the difference between the two cases in principle is that Oscar's dolus was incomplete by the mistaken belief under which he was labouring that he thought justified him to shoot, whereas with Jub Jub there was nothing that could have caused him to labour under a mistaken belief to justify his conduct.

 The state may naturally appeal on the grounds that Oscar had knowledge of his wrongful conduct (albeit under the supposition it was an intruder) and therefore the required dolus to be liable for murder. But that may be considered a finding on fact, a finding which should be left in the discretion of the trial judge.

 From this perspective, therefore judge Masipa technically came to the right conclusion (given her finding on the facts), and the basis of it not illogical, which unfortunately appears to be dominating popular opinion. Should this confusion therefore be cleared up, hopefully the correct interpretation of the court's judgment will accordingly prevail.

(this article forms the opinion of the writer and in no way constitutes legal advice or a definitive explanation on the subject)

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