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Denise Ni She
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Oscar Pistorius: Why the SCA must address the state's miscarriage of justice

05 September 2017, 10:46

The Oscar Pistorius trial was regarded by the State as a show trial which would demonstrate that Justice in South Africa would be served equally to all regardless of position or wealth within society. Such is a noble view, but it also ensured that the only verdict the State would accept was a guilty to murder verdict and to achieve this, the State was prepared to go to any length, even to deny a person's basic human rights. A guilty to murder verdict was the States starting position one that was intrinsically flawed, the antithesis of Justice.

From the onset, the State both allowed and promoted a trial by media. The more public support the State could engender for its case. the easier it would be to adopt practices that were unorthodox and unethical but would be accepted without question. Prior to a single piece of evidence being presented, the State with the aid of the media had already convinced the public that Oscar had intentionally killed his girlfriend. This would ultimately allow a prosecutor to adopt a mode of cross examination that not only received international criticism but was an example of prejudicial, professional malpractice yet was applauded in South Africa both in and out of the Court room.

The failure of the State to prevent the numerous fabrications that appeared on virtually a weekly basis in respect to the case, showed their compromised and hypocritical commitment to a fair judicial process. The media was allowed to interview and write whatever and whoever they wished. This resulted in a portrayal that this case was very much about violence against women. The State needed the case to be viewed well in advance of the trial as one of violence against women. This would ensure that Oscar received no sympathy for mistaking his girlfriend for an intruder. It would also ensure that any other verdict than a guilty to murder verdict would not be accepted. Ultimately it would provide the fuel for the future appeals that would be required by the State to ensure that Oscar was convicted of murder and the maximum possible sentence imposed. The States case was not about the pursuit of Justice but the application of vengeance.

The Sunday Tribune on 17 Feb 2013 reported that the police had been called to the house earlier in the evening because of complaints from neighbours. This was one of the many stories repeated verbatim by the media which had absolutely no basis in fact. The police however never denied it but allowed such publications to seep into the public collective consciousness which ultimately would allow them adopt a practice that denied Oscar his human right to a fair trial. The State and media therefore formed a symbiotic relationship to ensure that the only verdict that would be acceptable was a guilty to murder verdict.

Interviews with Reeva's parents were broadcasted entailing how Reeva was chased by Oscar to the toilet and shot. One has to question where, when and who provided this erroneous information to the Steenkemps. Such actions was not only a real attempt to deny Oscar justice but was a callous act of cowardice to feed false reports to Reeva's parents, reports it would seem they still believe.

The media also reported on a regular basis, cases of people killed by intruders and occasionally people shot mistaken for intruders and suspended sentences given to people who tragically killed loved ones mistaken for intruders. The hypocritical irony of this was conveniently ignored and forgotten.

The initial investigation by the police would have identified the insurmountable difficulties in pursuing a case that Oscar deliberately murdered Reeva. The State having taken statements from numerous ear witnesses and neighbours, were well aware of the  weaknesses and  contradictions in their case that Oscar deliberately killed Reeva. Witnesses testified to hearing 2 sets of bangs, the latter, the State claiming were gunshots but could not give any explanation for the first set of bangs. The State could also provide no explanation as to why their witnesses who were alert, listening to what was happening, did not hear a single sound of the cricket bat hitting the door but could hear a severely if not  fatally injured woman scream from within a toilet where the door was closed and where there was no open window. They could provide no explanation as to how witnesses heard what they perceived to be a woman screaming after the last shot was fired and by which time Reeva was mortally wounded. The media reported a neighbour hearing an argument and the term voices was used by both the media and Nel and later by an SCA judge yet no one ever testified to hearing voices. Despite these difficulties the NPA continually informed the media that they were confident that they would prove Oscar intentionally killed Reeva.

It therefore served the States purpose for it to be conveniently portrayed as violence against women and for political interference and the media to support that premise. If the State could convince the populace that this was a dreadful case of domestic violence; any irregularities in their practice, any lack of evidence would be  conveniently ignored. The States case relied on the media to forward their case in the absence of evidence.

During the trial, Nel was given a centre stage to conduct a performance which saw him, humiliate and castigate Oscar on a daily basis, mislead  the court on a daily basis as to what Oscar previously said, lie to Masipa as to what a State witness testified to.

His cross examination received international criticism from Canada, UK and the USA. However because of the portrayal of the case as one of violence against women, Nel was viewed as championing a cause rather than fulfilling the  role he was employed to do - ensuring that the trial was fair and just.

For Nel the verdict that Oscar murdered Reeva was a foregone conclusion, the initial verdict a minor complication as he could always appeal and approach the SCA in the same fashion as he undertook the initial trial, altering what was said in Masipa's judgement, altering the testimony of his witnesses.

Nel was fully aware of his reputation and knew that he could say what he liked and no one would question him which is exactly what transpired. He also knew he would need to concentrate on the violence against women angle because that is what would propel his numerous appeals. Not only is a murder conviction unheard of in a case  of a homeowner killing an intruder  but  demanding a 15 year minimum sentence particularly when the home owner had such a substantial disability that he relied on the use of prosthesis to walk properly would be ridiculed. Similarly  asserting that the death of an intruder equated with the death of a home owner would likewise receive major criticism yet that is exactly what Nel has done. His actions are ignored because the NPA underhandedly continue to pursue this as though Oscar intentionally killed Reeva while claiming they do the opposite.

What was seen during the trial, ignored by both Masipa and the SCA and not challenged sufficiently by the defence was the numerous assertions made by Nel with regard to Oscar lying, creating a version, tailoring his evidence which were never cross referenced to check what Oscar actually said. Testimony given by Oscar was misinterpreted and altered by Nel. Oscar's mentioning of the alarm system in 2013 was altered by Nel to a failure to make any reference to it. Demands from Nel as to what witnesses would be called by his defence or what discussions were held between him and his advocates was presented as his blaming his advocates, despite such questions showing that  Nel was interfering with Oscar's right to non disclosure of any discussions held between Oscar and his council.

What became apparent was the influence Nel had coupled with an inability of Judge Masipa to remain impartial and exercise control over the Court. This was shown in her failure to address the derogatory method of cross examination and her apparent acceptance of the criticisms levied at Oscar by Nel regarding his untruthfulness without cross referencing them to what Oscar said. Masipa applauded Nel on his conduct, that either implied that she was unaware of his misleading the Court or that she condoned as acceptable for a prosecutor to lie. Either way it shows that Oscar was denied a fair trial.

Judge Masipa's recall and the notes she took also indicated how she was influenced by the State's assertions of what Oscar said, rather than what  the transcript showed was said. The one occasion she referred to her own written notes  following a dispute between the State and Defence, she repeated verbatim what Nel claimed Oscar said rather than what he actually said. 

Mr  Nel asks Mr Pistorius  what the accident was.

Page 1555

The accident was that I discharged my firearm in the belief that an intruder was coming out to attack me,

MR NEL: So the discharge was not accidental? Or was the discharge accidental?

MR PISTORIUS:  “The discharge was accidental, My Lady; I believed that somebody was coming out.

MR PISTORIUS It is not just a firing of a firearm and the firearm went off by accident. What I am saying is that at that time I did not know what to think. I fired into the toilet door which was... I believed somebody coming out to attack me.

Nel however says

The record will be...

I discharged my firearm accidentally. It went off by accident.


But that is not what Oscar said.

When Mr  Roux challenged Nel to this effect saying 

He (referring to Oscar) never said that he discharged it accidentally.

MR ROUX: My Lady, he never said that he discharged his firearm.  He said he was asked what does he mean by an accident . He never said that he discharged it accidentally.  It was the state putting that to him and he then explained his version.  It was never his answer. 

Mr Pistoriuss answer was: The accident was that I discharged my firearm in the belief that an intruder was coming out to attack me My Lady

COURT:  I am not sure you are correct, Mr Roux.  I am not sure you are correct.  I have it down here, unless I also misunderstood his answer.  I discharged the firearm accidentally.

Although Masipa accepts the possibility that she may have misunderstood, she failed to check the record. Roux reported to Masipa verbatim what Oscar said. Masipa rather than recording what Oscar was saying recorded instead what the prosecutions version of his testimony was. How can a person hope to have a fair hearing if a Judge is unable to record accurately what an accused person said and records instead what the Prosecutor claims was said. One then has to question if Masipa's record of what Oscar said in cross examination is in fact the record of what Nel claimed he said; what bearing did this have on her subsequence sentence and decision to allow the States appeal of the original verdict. Considering this was the only occasion Masipa read out what she had written, one needs to question the accuracy of her notes and how these influenced her perception regarding Oscar's truthfulness. If Masipa was so heavily influenced by the State that she took notes on the prosecutions determination as to what the record should be, then the numerous assertions that were made by Nel about Oscar lying or creating a version is likely also to have been accepted by Masipa. The reference by Masipa to Oscar’s untruthfulness and ultimately the SCA reference to it is indicative of how Nel manipulated the trial and SCA hearing. This would suggest the actions of the State was instrumental in preventing Oscar from firstly having a fair trial and ultimately in engineering an unjustified guilty to murder verdict.

Judge Masipa and her assessors  did not visit the crime scene they were unable to establish if in fact a person had somewhere to hide in the toilet and whether it would have been possible for Oscar to have hid from an intruder. It was not possible to see in situ the window that was open, the distance from the bed to the bathroom and toilet etc. Two dimensional photographic evidence do not provide the same detail, neither did the scaled model of the toilet in isolation provide a true representation of the crime scene as a whole. Furthermore, the Court and SCA was completely unaware of how Oscar would have struggled on his stumps, how he fired on his stumps etc. This was a major failing of the Court yet it seems to be a common practice in other trials, one therefore needs to question the omission of it in this case

In his closing argument Roux stated that Oscar had trouble recalling events and that was contributed to his struggling to give evidence. Judge Masipa responded by saying that  should have been stated previously in the trial. However Oscar did state this, he also gave details of his medication. If Masipa had looked at the side effects of his medication she would have seen that memory loss, poor concentration were side effects. She failed to do so. She failed to address the inaccurate accounts Nel gave in respect of Oscar's testimony. Instead she viewed Oscar as a poor witness who had no difficulties giving his testimony but struggled in respect to his cross examination. However her failure to see that Oscar was on a daily basis accused of being a liar, creating a version, tailoring his evidence when these allegations were essentially invented by Nel, prevented Oscar from being able to respond as she expected in the witness box.

If Masipa had addressed the deception by Nel, Oscar would now not be in prison for murder. By highlighting Nel's deception Masipa would have ensured that that State were not in a position to appeal. How could the State appeal a case when the practice of the prosecutor was shown by the Judge to have been deceitful and untruthful.

What became evident and accepted in the  case was a complete  absence of fairness, a practice which singled Oscar out from all other cases, treating him less favourably and with undue prejudice, a refusal to allow the case to end. Oscar has in fact waited 4 years to see what sentence he will serve. Since his initial verdict of Culpable Homicide until the sentencing hearing concluded, he has spent time in prison, under house arrest, on a electronic tag. Yet the State conveniently ignore this when appealing  for his 6 year sentence to be increased. The State have effectively instituted what amounts to psychological torture as a result of the unprecedented numerous appeals. Even if his sentence isn't increased Oscar probably realises that his chances of being released on parole are slim.  Where Oscar is concerned, normal procedures can be altered at a whim, political interference can change procedures so that he is detained longer for no apparent reason except some Minister somewhere finds some excuse to.  Returning him to prison to serve a further prison sentence when it was established that Reeva was not killed intentionally, that this was a dreadful mistake and one he would have to carry with him always is inhumane and a startling contrast to how Visagie was treated when he shot and killed his daughter in the mistaken belief she was a car thief. Visagie  was treated with compassion, while Oscar received what can only be described as unprecedented vindictive vengeance.

No other case has been appealed to the extent this case has. Yet every appeal made by the State is allowed,  the appeal made by Oscar was rejected. Rather than the case demonstrating that Justice is equal for all, it has highlight the fundamental flaws in its Justice system. The SCA rather than acting like a Supreme Court has adopted an approach where their relationship with the prosecution is so close to prevent any objective scrutiny of their case and consequently  orchestrate a miscarriage of justice.

The State with the assistance of a then associate lecturer James Grant  argued the appeal was necessary to give clarity to the concept Dolus Eventualis. Rather than restoring clarity, it has showed how divided the Legal Authorities are in respect to Dolus Eventualis. The two most prominent legal experts Burchell and Saayman both interpreted Dolus Eventualis contrary to how it was interpreted by the SCA, yet the ConCourt refused to hear the appeal by the Defence. For an appeal to be refused while such diverse views exist is far more suggestive of interference in the case and a desire to concur with the States position rather than promoting Justice. Surely  it is clear that in the interests of Justice the case should be reexamined and Oscar should not be now spending time in jail for the murder of a perceived intruder. What the Oscar Pistorius case has demonstrated is the legal chasm and polarisation that currently exists in South Africa with regard to this case. That should set alarm bells for the ConCourt and consequently if their main interest is the upholding of Justice, they have no option but to reexamine the SCA verdict. In any country where the leading, most knowledgeable, most respected legal authorities question the legality of a Supreme Court decision, it should result in the interests of Justice that verdict being scrutinised.

Rather than clarifying Dolus Eventualis and ensuring that Justice is seen to be done what they have achieved instead is to murky the legal waters considerably. In fact the State has somehow adopted an approach to Dolus Eventualis which would enable a person to be convicted of a crime even in the event that they were unaware their actions were unlawful and in circumstances where they believed their life to be at risk. The State in the appeal papers deny there ever was a component of Dolus Eventualis that incorporated the concept of knowledge of unlawfulness. It would therefore be interesting to determine how James Grant lectures on the subject making reference to both Saayman and Burchell and endorsing their interpretation of D.E while his actions as part of the States team contradicted them.  The State also maintained that this was not a case of Putative Self Defence again unlike the leading legal authorities who Grant refers to in his lectures. On his website he states that  Burchell and Taitz 'observe correctly that original Pistorius defence was putative self defence. If an accused makes a mistake about the facts or as Burchell correctly adds the law, he can not be convicted of murder. That is because an accused who is mistaken in this way has no intention to commit murder

The  NPA instead indulged  one of its members allowing the use of an appeal process to become a legal game of Ping Pong. Unless the NPA get the verdict they want, they ping the case back to the appeal court with no consideration to the emotional impact on both families and the financial cost. In so many ways the NPA and Nel  are using the Judicial Process in much the same way as an athlete might  use performance enhancing drugs just to win a race. One needs to question whether it is Nel or the NPA that is the supplier.

South Africa has some of the most overcrowded prisons in the world, there are numerous gangs and consequently gang related violence. Many  prisoners are on remand for excessively long periods who may be completely innocent and may be subject to rape, gang violence. Medical conditions such as Tuberculosis and AIDS are rife and gang rape a common occurrence, rather than money being spent addressing these issues, the NPA and State instead appeal at every opportunity with no regard to cost or morality of their actions

What the SCA verdict showed is that a Supreme Court can alter a verdict by going through the case and altering any aspect of the case to achieve the desired verdict. Their starting point in Oscar's was the murder verdict and a scrutiny of the SCA questions and judgement  is suggestive that this is the approach that was adopted. One has to question the influence of the State in the determination of the verdict. Questions asked showed an ignorance of crucial aspects of the case in favour of a media interpretation which again was both fuelled and influenced by the State.

Although the SCA attempted to justify their verdict by making numerous  references to what Oscar was or was not thinking. These were entirely subjective on their part and not supported by testimony or evidence in the trial. These were contradicted in their entirety by the psychological assessment and expert testimony in respect of Oscar's state of mind.

There is nothing more than personal unsubstantiated  opinion that supports the SCA view.

They ignored critical aspects of the trial and Judgement, replacing them with their own tailored version. They concluded Oscar fired at a person whose identity was unknown, who was not a threat and fired when he knew there was someone in the toilet and gave no explanation for firing. They conveniently disregarded the sequence of events which led Oscar to conclude that there was in fact an intruder and replaced them with their own. They also disregarded the numerous occasions Oscar spoke of the fear he experienced, the panic that led him to  fire, a belief his life was in danger and the belief someone was coming out to attack him. Furthermore the view they presented of intruders was a stark contradiction to the reality of home invasions.

Oscar mentioned 36 times that he fired believing there was an intruder about to exit the toilet. This was somehow translated as never having given a reason for firing. No explanation has ever been forthcoming from any of the SCA judges as to how their collective reading of the trial record could replace each one of those 36 times with a collective memory loss and replace it with Oscar never having given an explanation for firing. Oscar described numerous times the fear he felt, how he believed his life to be at risk. Why did the SCA need to alter this fear, the simple answer is to convict him of murder. 'The belief his life was in danger excludes Dolus' The SCA then conveniently alter this claiming it was a question of law.

This is a very dangerous precedent as it allows for the overturning of a factual finding of the Court A Quo  by maintaining it to be a question of law. How useful this tool could prove in respect to political opponents accused of a crime. There already is a precedent in the case for overturning an acquittal. A factual finding can then become a question of law which in turn can be overturned by an opinion which has no relevance to the testimony or evidence given. A refusal by the ConCourt to hear any appeal could then ensure that the required verdict was upheld, a verdict that was unjust. A very convenient way of removing opposition or using certain cases to score political points.

The State showed a deep prejudicial ignorance and a total denial of the impact of Oscar's disability. The  language used by Nel showed utter distain for Oscar's disability. Such a view returns to the prejudicial discrimination of previous eras when people with disabilities we hidden away from society viewed as second class citizens. For Nel to receive no criticism shows  support by the State and government for such prejudice. 

The State presented a view of Oscar's disability as though it was something Oscar paraded around or denied when it suited him. Nel used phrases such as 'he never acted disabled before and now uses his disability shamelessly' These remarks in any jurisdiction should be viewed for what they were  prejudicial, discriminatory, inflammatory remarks, such comments encourage disability discrimination and hate crime.

Oscar has no legs, where his feet and lower legs should be he has stumps. Nel is totally ignorant of what limitations Oscar has in his daily life without his prosthesis it is a complete  attempt to deny how vulnerable any person would be if they had a significant disability and believed there was an intruder in their home.  What the State clearly alludes to is that because Oscar fought to run in the Olympics he viewed himself as non disabled. The States view as portrayed by Nel separates society into disabled and non disabled in much the way as the racist ideology of apartheid. The views he expressed were mocking and extremely prejudicial. Such remarks should be seen for what they are, institutionalised disablism and met with disciplinary procedures being taken.  

Such prejudicial views are also evident  in the SCA  judgement  Oscar is perceived as not having a disability and being similar in ability to a non disabled person. This should send shock waves through organisations working towards equality as essentially it paves the way for blatant discrimination and prejudice. Had Oscar killed an intruder then no doubt such remarks would be seen for what they were, blatant prejudicial discrimination. Yet, if he had killed an intruder would his disability be suddenly irrelevant, would the fear he felt, a belief his life was in danger be watered down to a feeling of mere anxiousness as the SCA indicated. If Oscar had killed an intruder, it is highly improbable that his disability would be viewed as having  impacted little on his subsequent actions and that he was not vulnerable. .

This prejudicial practice is echoed in the tweets of James Grant  who retweeted a  cartoon  which mocked Oscar's disability. This inherent discrimination  echoes in the blatant prejudice and State orchestrated discrimination and racism of the apartheid.

 Grant's  twitter account is littered with tweets about the case that show a contempt for a pursuit of Justice. There are jokes about fellow legal experts and Oscar's disability, strongly hinted innuendos such as on 28/2/17 when he tweeted that ' I tried this afternoon to dishonestly believe that the voice you call Frank  heard something -but only managed a tremendous headache'. Frank was a housekeeper of Oscar's. Grant as a member of the States case continues to now portray the case as one of domestic violence.

If one explored his Twitter account, what is evident is a disrespect for the law, through his retweeting media articles which refer to the law as a 'white man's bitch', portraying the case as one of violence against women. He also tweeted on a regular basis with people who made death threats against Oscar and people who  called for Oscar to have 'his legs blown to pieces' . When it was pointed out to James Grant exactly who he was engaging on Twitter with,  he took the view that it was not up to him to police the Twitter accounts of people he tweeted with.

The morning of the SCA verdict overturning the Culpable Homicide verdict James Grant tweeted that his daughters were safer tonight than they were yesterday. Such a tweet could only refer to a view that the case was related to domestic violence. Although attempts were made to down play this by claiming he was referring to a legal hurdle that was now changed. There is little doubt that he was now using his twitter account to further the States view that Oscar intentionally killed Reeva. Prior to his becoming part of the States team, he tweeted that if Oscar was convicted of murder he would have grounds for appeal. Only Grant and his conscience can explain the change of view.  He later retweeted a media article saying the true significance of the case was one of violence against women. This then suggests that the State are continuing to view this case as domestic violence. Any appeal should be considered in this light. The State refuse to accept that Oscar didn't know it was Reeva and want Oscar punished as if he did. Effectively they are placing themselves above the law and rather than their serving the law, they view the purpose of the law is to serve them

The State in their most recent appeal on sentence suggest that in fact Oscar's actions were more closely linked to Dolus Directus. By virtue of picking up a gun it constituted the intentional killing of a human being. This would then imply that no one had a right to pick up a weapon to defend  themselves. That a person would need to wait and determine that there was an intruder before arming themselves. One would also then have to question why Nel is a member of a gun club and why the carrying of a weapon is not unlawful. Clearly Nel is yet again attempting to manipulate the Justice system to gain the maximum sentence for Oscar. His actions on so many levels would be interpreted as orchestrating a miscarriage of Justice in any fair and just legal system.

Nel's actions has to be compared to a prosecutor from the same NPA in a similar case. The case involved a man shooting and killing a person on his roof, he believed was trying to break in. The man posed no direct threat, it was unclear when the accused fired whether the man was armed. Prosecutor Ndlovu in 2014 stated-:

'that anyone could have done what Nobunga did, Shooting and killing the deceased does not mean the accused did the right thing but this could happen to anyone.

 How can  a prosecutor from the same organisation, now argue that the life of an intruder should be valued the same as the life of Reeva, that Oscar's actions bordered on Dolus Directus and he should serve 15 year minimum. One has to question the discrepancy and what additional factors are at play to cause such a difference in approach. Nobunga was given a suspended sentence for Culpable Homicide. The same NPA want Oscar to serve  a minimum of 15 years for murder.

Despite the verdict, the media continue to post instances of home owners killed by intruders and intruders killed on occasions with four or more shots, but it is somehow not regarded as murder. The SCA verdict also places home owners in a precarious position, if they fire  and the intruder is unarmed then could they face a minimum 15 year jail sentence. The State in this case placed the same regard for an intruders life as they did the life of Reeva. Therefore if it had been an intruder who subsequently killed Reeva and Oscar the crime according to the State is no different from Oscar's and both should be punished to same degree. There seems no consideration that an intruder is committing a crime by being in a person's home. Indeed reading the SCA judgement not only is an intruder perceived as not necessarily dangerous but almost having a right to be there. However,  the verdict may result in homeowners being more cautious and possibly risking their own lives for fear of facing a 15 year sentence The SCA judgement is seems very out of sync with the reality of home invasions and the fear that causes, if this is the case then how can they possibly be fit to serve in the position of power they do..

Since  James  Grant is rightly protective of his children; if he believed there was an intruder would he wait to ensure there was and then fetch a weapon to protect his children or would he opt to have a means of protecting his family while he checked. If there was an intruder in his home and behind the door of a toilet in a bedroom that his daughters were occupying, and his daughters were unable to escape, would he wait for an intruder to come out or would he fire through the door. if he fired  killing the intruders, would  he accept that he had committed murder and accept without question that he should be liable to serve 15 years in prison. If he was given a lesser sentence would he urge the State to appeal. Would he like Nel view the life of the intruder as being the same as the lives of his daughters? Would he view the intruders as not dangerous and risk his the life of his children rather than firing at an intruder?

Perhaps the most startling indication of how differently Oscar had been treated by the State is when one considers the NPA's actions in respect to Duduzane  Zuma.

The son of President Zuma was responsible for a fatal road accident. It was established at the inquest that the person killed was unlawfully killed, thus making him responsible for an unlawful death. No charges was ever brought against him. One of the main arguments made by the State for appealing the sentence of Oscar Pistorius was the pain and suffering he inflicted on the family of Reeva Steenkemp. Yet their pain and suffering was no different than that experienced by the family of the person killed in the accident caused by  Duduzane Zuma. This shows the real hypocrisy in the Oscar Pistorius case. The same NPA who decided to appeal at every opportunity the Oscar Pistorius case chose to ignore that no charges would ever be brought against  Duduzane Zuma.

I can't help but question that far from the reason given for the countless appeals being to gain greater clarity on DE or sentencing, had Oscar been a prominent member of the ANC or the son of a prominent member would the outcome be very different for him. I can't help but think he would have been treated the same as the other cases where family members were killed mistaken for an intruder and if charges were brought against him then a plea for Culpable Homicide would have been entered and accepted and a suspended sentence given.

This case looked in detail as to what constitutes Dolus Eventualis and I question whether  in fact it was the person asking the questions that should have been found guilty of Dolus Eventualis.  Nel knew his actions in misleading the Court in regard to what Oscar said was likely to bring about a miscarriage of Justice. Nel as a prosecutor was well aware that he could not mislead the Court, however he decided this was irrelevant and carried on regardless knowing full well the likely outcome of the consequences of his actions. Essentially these are the components of Dolus Eventualis.

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