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Denise Ni She
 
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Oscar Pistorius: Why the verdict in the SCA is a miscarriage of Justice

30 March 2016, 07:33

Why the verdict in the SCA Oscar Pistorius case is a miscarriage of Justice.

The Supreme Court of Appeal upheld the States case that the trial judge Masipa did not consider the circumstantial evidence in the case in it's totality. Regardless of whether Judge Masipa erred in her in her application of Dolus Eventualis, what was also required to prove a murder conviction was proof beyond reasonable doubt that Oscar  at the time he fired the shots knew his actions were unlawful.

If Oscar believed his life was in danger then his firing at what he perceived was a threat to his life, should not and under current legislation could not be deemed murder.

The SCA in delivering their verdict adopted a far more piecemeal approach to evidence than Masipa. They also rejected the results of the 30 day psychological evaluation. and in doing so overturned the factual findings of the trial Court - namely that Oscar had a genuine belief his life was at risk.

The SCA could not have considered the psychological evaluation and come to a conclusion that Oscar was merely anxious and therefore was not in fear for his life.

To claim the trial courts finding was either incorrectly conceived or is a question of law seems a feeble attempt to justify their judgement. In doing so the SCA also created a legal precedent as factual findings can not prior to this case be overturned by the SCA.

 To suggest that a person with no legs, on his stumps, with no means of escape, coupled with a heightened sense of anxiety, in one of the most violent countries in the world would simply be anxious in  circumstances, where they believe there  are intruders in their home is illogical and irrational. Yet that is exactly what the SCA claim to  have proved beyond reasonable doubt. No consideration was given to factual findings made in the trial court as to how the open window or the ladders underneath reinforced in Oscar’s mind that the subsequent noises he heard emanating  from the toilet were that of an intruder. There was no mention of threats he had received and how having been assaulted  weeks previously would have resulted in an anxious person to become even more apprehensive and terrified.

The suggestion made by both the State and the SCA that it could have been a child in the toilet was nothing more than an attempt to undermine the real fear that Oscar had and the reality of home invasions in South Africa.

When one delves further into their reasoning what emerges is smoking mirrors hiding perhaps the real motive which is simply a desire to gain a murder conviction at any cost. It would seem that the appeal was more about the State saving face than pursuing Justice. The State put more money and time into this case than any other. They did everything in their power including allowing a media style assassination of Oscar in their attempt to prove Oscar intentionally killed Reeva and they failed, because the evidence in the case overwhelming pointed to the fact that he did not know it was Reeva. Most similar cases do not even go to trial and Culpable Homicide is the usual verdict followed by a suspended sentence.  Yet no expense was spared by the State to achieve a murder verdict whatever way they could and in the process establishing legal precedents, changing the rules, placing the desire to win above the interests of Justice and the rights of the individual.

There have been many cases of family members killed and injured mistaken for intruders and intruders killed by house owners. It would seem that the number of shots or a fear for ones life did not become instrumental in deciding whether these cases were murder or culpable homicide. It was also never challenged or viewed as irrational their explanation that they believed their life was at risk The startling difference is that in other cases none of the people who fired the shots had a significant disability and none were famous. In fact in the case of Nelson Nobunga, who shot a man on the roof of his house, who he believed was attempting to break into his property, the magistrate said that what he did could happen to anyone.

The SCA also conveniently ignored that escape from a perceived intruder was not an option for Oscar since Oscar was unable to exit down the stairs on his stumps. Therefore the SCA have essentially set a very dangerous precedent  that disability and vulnerability are irrelevant.  This could therefore see an increase in the number of women who experienced domestic abuse being convicted of murder if they use putative self defence as a defence. The ANCWL rather than continuing to chime about this case being a victory for abused women should consider the impact of the verdict for women suffering domestic abuse, and how this verdict creates a higher likelihood of a murder conviction if a woman  kills their abusive partner believing they are about to be attacked. The verdict also suggests that attack needs to be occurring which may result in a woman only defending herself once an attack has begun which could end in her death.

The SCA in considering   Masipa’s Judgement, quoted  relevant sections-:

“In arguing that the State had failed to show that the accused lacked the necessary subjective intention in respect of both elements of dolus eventualis, counsel for the accused emphasised the accused’s physical disabilities, the fact that he had not been wearing his prostheses at the time and that he had thus been particularly vulnerable to any aggression directed at him by an intruder. He also placed considerable emphasis on the psychiatric evidence that the accused suffers from a general anxiety disorder, and would become anxious very easily in a situation of danger, although he also has a ‘fight rather than flight’ reaction. The argument appears to have been that in the circumstances that prevailed, the accused may well have fired without thinking of the consequences of his actions.”

The SCA did not share that view. There is no acknowledgement that a person with a major disability would experience a degree of vulnerability. There is no consideration that the results of the psychological assessment which was also based on psychometric testing showed that Oscar scored highly on anxiety. What however is concerning is Judge Leach’s explanation for his rejection is that it just differed from his opinion.

“In my view this cannot be accepted. On his own version, when he thought there was an intruder in the toilet, the accused armed himself with a heavy calibre firearm loaded with ammunition specifically designed for self-defence, screamed at the intruder to get out of his house, and proceeded forward to the bathroom in order to confront whoever might be there. He is a person well- trained in the use of firearms and was holding his weapon at the ready in order to shoot. He paused at the entrance to the bathroom and when he became aware that there was a person in the toilet cubicle, he fired four shots through the door. And he never offered an acceptable explanation for having done so.”

This account  fails to consider his evidence in its totality.  It also substitutes the explanation Oscar gives that he believed a person was coming out to attack him with the words ‘when he became aware there was a person in the toilet’. The SCA do all in their power to reduce the level of fear Oscar experienced including replacing his testimony with their own words and totally ignoring the impact of his disability. Judge Leach in fact makes absolutely no reference to Oscar being on his stumps but merely says the person was behind the door and although Oscar thought a noise signified the opening of the door, this was not the case.  The SCA failed to give any consideration to how Oscar could defend himself if it was an intruder. On his stumps, he could not balance and certainly couldn't defend himself if attacked. The SCA however approached the case as if Oscar did not have a disability. Although they acknowledge he does, their understanding and therefore application of what it means is missing from this Judgement, effectively they approached the case in the same way as if Oscar was a non disabled person. Oscar was unable to leave the bedroom, he had no means of escape, and every home owner has a right to defend themselves. I would also question how his believing that the noise he heard was someone coming out to attack him could be considered irrational and therefore murder when other similar cases such an explanation was considered rational even though the person who fired the gun did not have any  disability as Oscar had.

For the SCA to reject a psychological assessment with such ease surely implies a total lack of confidence in the expertise of the expert witnesses the State employed to undertake such an assessment. Yet there was no attempt to appeal the case of  Retief Liebenberg who was acquitted of a double murder largely on the evidence of the same psychiatrist who undertook Oscar’s assessment. Liebenberg incidentally  also had different defences which was not considered an issue in his case.

Dolus eventualis is not only about the foresight and reconciliation of ones actions, it must also be accompanied by the knowledge of the unlawfulness of ones actions. Therefore the SCA are required to proved beyond reasonable doubt that Oscar knew he was acting unlawfully.

There is no reference to the open window, the ladders, previous death threats, the high level of crime in South Africa. It would seem that the Judges seem out of touch with the experience of general population particularly since the statistics indicate that the crime most feared by people is Home invasions.

‘Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him. ‘

This however makes little sense since Oscar believed Reeva was in the bedroom, who exactly did the SCA suggest might be in the toilet. They imply that Oscar had no reason to think there would be a threat to his life from the person behind the door, yet they provide no alternative explanation as to who, having excluded Reeva, Oscar would somehow think was in the toilet.  Effectively what the SCA are doing is replacing what Oscar was thinking at the time with their own thoughts and interpretation and simultaneously replaced what he was thinking with what he should have known. The SCA are correct in their assertion that Oscar did not know who was behind the door. How could he, the room was pitch black and the door shut. What the SCA however don't consider is what Oscar was thinking. In fact they replace what he was thinking with  their own agenda. In their scenario there was no danger, no threat, which allows them to state he did not know whether that person in fact constituted any threat to him.  However the trial court accepted  that Oscar believed his life was at risk from the person behind the door. This was a factual finding made by the trial court and as such is beyond the scope of the SCA to overturn.

  They also provide no reason as to why Oscar would consider an intruder not to be dangerous. It  seems a contradiction to suggest that a person can believe there is an intruder in the toilet and be  irrational and reconciliatory at the same time while knowing their actions are unlawful and all these processes occurring  simultaneously in a person’s mind in a split second when they believe there's an intruder in their home.

The SCA rejected Oscar’s testimony and timeline of what preceded the firing of the shots. It replaced it with a muddled scenario where all of Oscar’s testimony in relation to what happened directly before he fired  was viewed to have occurred simultaneously. 

There is a huge difference between  Oscar being prepared to defend himself and indicating it wasn't his intention to shoot. If there had been an intruder Oscar without prosthesis would be unable to defend himself if attacked, and certainly would not have the agility and speed to get his gun if an intruder confronted him.

The actions of the State including the SCA  suggest that the prison sentence they want Oscar to serve is for the deliberate and intentional killing of Reeva. Despite the SCA accepting that Oscar did not know it was Reeva, their actions are more suggestive of adopting the state’s case that Oscar intentionally killed Reeva, they just couldn't prove it. Such a position for any judicial system to adopt makes a mockery of Justice. Such a position also raises questions about the independence of the Courts and SCA in particular. It supports a practice where a person is viewed as guilty from the onset, if the evidence fails to prove their case, it is irrelevant as they simply must be right. They can then appeal the case should they lose, claim factual findings are points of law and ensure the person gets a prison sentence for the crime they feel he should have been convicted of but  had no evidence to prove. Such a practice is devoid of any sense of Justice.

The SCA seem to have  placed much emphasis  on the evidence of Mangena, evidence that  in many parts was disputed by the defence expert witnesses. It has also been reported that while being part of the investigation team  Mangena assisted a journalist in their completion of book about the trial. If true such actions may result in disciplinary actions in many Jurisdictions, Mangena was not only promoted but received an award for his work. He was interviewed following the verdict of the SCA where he stated he believed the State case was Dolus Directus.

“I was definitely sure he knew it was Reeva behind that door,” Mangena told News24

“I could tell by the way the bullets went through the door and the evidence I collected pointed to that fact. It was not just any intruder he was shooting at, it was Reeva and he meant to kill her.

“I just couldn’t prove it.”

One therefore has to question his expertise and experience  if he was so convinced Oscar intentionally murdered Reeva based on his evidence, why did  this not come out in Court. One can not see through a closed door and the evidence in the case was overwhelmingly the view that Oscar did not know it was Reeva.. Furthermore if his investigation was as thorough as he claimed why did he fail to compare the wounds on Reeva’s back with the magazine rack to determine if this was their cause. Such a view as presented by Mangena  is suggestive  of confirmation bias, where an initial hypothesis is considered and all subsequent information or evidence is either rejected or accepted according to this initial view. Therefore his promotion and awards would seem to have been given for effectively getting a case wrong. Would a police officer who allegedly colluded with the media, held a view that a person was guilty but couldn't prove it,  the evidence and testimony they presented to the Court failed to prove their position,  be the recipient  of awards for their work, be viewed as one of the best in their profession and subsequently promoted if the accused was not a well known person and the case received world wide media attention. Surely these awards and promotion must be considered in the light that the State wanted to show the world that they got it right.

What also needs to be considered is the testimony of Mangena is referred to by the SCA as circumstantial evidence. The evidence is expert testimony and as such does not fall into the category of  circumstantial evidence. The SCA are only allowed consider the specific points raised by the appeal. The State made no mention that Masipa failed to consider expert testimony. By mentioning Mangena’s testimony they over stepped the permitted boundaries of the appeal court. 

The SCA concludes in reference to Mangena’s evidence

“All of this was circumstantial evidence crucial to a decision on whether the accused, at the time he fired the fatal four shots, must have foreseen, and therefore did foresee, the potentially fatal consequences of his action. And yet this evidence was seemingly ignored by the trial court in its assessment of the presence of dolus eventualis. Had it been taken into account, the decision in regard to the absence of dolus eventualis may well have been different. In the light of the authorities I have mentioned, to seemingly disregard it must be regarded as an error in law.”

Masipa did not however ignore Mangena’s testimony and this certainly wasn't an issue for the State or they would have included expert testimony with the circumstantial evidence as questions to be considered by the SCA.

The SCA failed to consider Oscar’s evidence in chief  relying instead on his cross examination.

Nel questioned Oscar if he remembered firing at the door. When Oscar replied in the affirmative, Nel asked Oscar why he had said the previous day that he hadn’t.  Nel insisted that Oscar had said he had not remembered firing at the door.

Nel asked

‘Why did you.. yesterday when we ended, you said you do not.   You cannot remember.’

Oscar replies

That is incorrect, M'Lady.

Nel insists

Yesterday You did!

Oscar clarified

That is incorrect, M'Lady. Yesterday, when put to me if I fired at the door, if I remember firing at the door, I said yes, I do. I remember firing at the door

Nel concluded saying it was just as well there was a record and it would be checked over lunch. Nel however made no reference to the record on return from lunch. In fact the record would have showed that Oscar was correct in what he said, he had said the previous day he remembered firing.

On another occasion Nel asks Oscar what the accident was. Oscar replied that

‘The accident was that I discharged my firearm in the belief that an intruder was coming out to attack me, or take my life.

Oscar goes on to say

‘ 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 Roux challenged Nel to this effect saying  

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

Judge Masipa intervened saying that she had written it down. She read out what she had written ‘I discharged my firearm accidentally.’ What in fact Masipa had noted was what Nel had said and not what Oscar had said.

I would question whether the SCA cross referenced the claims made by Nel both during the trial or simply accepted what he claimed.  However in the trial and the SCA hearing Nel made assertions  which could not be backed up by the court record.

Nel is regarded in South Africa as their leading prosecutor, yet internationally he has been described as adopting bullying techniques by legal fraternities in Canada, England and by legal commentaries in the US. They have not only criticised his style of cross examination but indicated that it would not be permitted within Courts in their jurisdiction. It would seem that while South Africa might wish to present to the world a view that its nation has moved on considerably since the end of apartheid, how cross examination is undertaken   remains stuck in a era where bullying and obtaining a guilty  verdict is the goal at the expense of Justice. At the conclusion of the trial Nel asserted he never questioned Oscar about the length of cord, a cord which he claimed Oscar lied about, but which was  never be produced by the State. The Court record showed he did at length. He also told SCA that Masipa never mentioned the screams heard by neighbours prior to the gun shots, when in fact she had. He also gave the SCA the incorrect time regarding Mrs Van De Merwe’s testimony regarding the so called argument she heard conveniently placing it to coincide with the pathologists evidence as to the time when Reeva may have eaten.  It is also worth considering that Nel allowed a self confessed murderer to walk in order to attempt to gain a conviction in another case and the same self confessed murderer attended the Oscar Pistorius trial and met with Nel privately during one of the recesses.

There should be international and national outcry about the practice of the State, NPA and SCA in this case. Essentially it was a tragic case where someone killed a loved one mistaking them for an intruder. No other similar  case has been viewed as murder. No other similar case has been appealed by the State. If it was an intruder that was behind the door, I sincerely doubt Oscar would have served a day in prison let alone be convicted for murder.

The case the SCA referred to The State V De Oliviera as a precedent of the defence of putative self defence, bares no  resemblance to Oscar’s case. The case dates back to 1993 and there have been numerous cases of intruders being killed since then and family members mistakenly killed which the State and SCA chose to ignore. In this case the accused didn't testify, two men were seen outside his property, there was  no indication they were attempting to break in. The men in fact worked for De Oliviera and lived at the property.   His wife told him there were unknown ‘black men’ outside the house, he told her he would sort it out before reaching for his gun, shooting 6 times killing one person and injuring the other. He was sentenced to 9 years, the State want Oscar to serve 15.

No consideration was given to the case of Siyabonga Mdunge,  who in 2013 received a suspended sentence for CH for killing his pregnant wife. She was in bed with him and when she went to the toilet the subsequent noise he heard convinced him she was an intruder.  He fired when he heard a door opening killing his wife.  His fear was considered rational, like Oscar, he got his gun, he failed to identify who was in the toilet, he walked towards the noise and shot when he heard a door opening. Unlike Oscar, he was not disabled and would not have had the same difficulties as Oscar either  exiting the house or defending himself if physically attacked.

In my view the main reason there is no public outcry in Oscar’s case is the State manufactured this case as violence against women. Yet they never had any concrete evidence for this and the trial including the psychological assessment failed to provide any clear case that this was a domestic violence killing. However the State, the NPA,  made no attempt to halt the various media stories which fabricated and sensationalised fictitious reports which effectively created the scene to allow the State to adopt whatever practices they so chose to get a guilty verdict. Practices that allowed  the initial investigator who was a State Witness to sell his story about the case to a tabloid magazine before the trial even began

The SCA verdict could never be considered a  victory for women as the case had nothing to do with domestic abuse. The message the  verdict gives instead is that disability is irrelevant. By failing to recognise disability as an issue it supports discriminatory and prejudicial practice and in doing so ignores existing anti-discriminatory legislation. While I realise that Oscar was negligent and that he should have checked more carefully the whereabouts of Reeva, his actions are not unique and sadly seem to be the product of a society where fear of crime result in tragic avoidable situations. This verdict may inadvertently result in home owners taking risks as it would seem the verdict means attack needs to be occurring before defending themselves and may result in the deaths of homeowners

What the SCA have created is a precedent like no other. They have clouded factual findings with legal questions essentially creating a scenario  where any finding that the State wants  challenging  can be done so on the premise that by virtue of questioning  findings made in the trial court it becomes  a question of law.  Their rejection of the psychological evaluation  with no explanation given,  creates a precedent that places a Judge  in a superior position to that of the experts in determining the state of mind of the accused. Even though the State by virtue of not contesting the psychological evaluation agreed with its findings, the SCA overturned it. Therefore any psychological assessment can  be rejected because the personal opinion of a Judge disagrees with its conclusion without   any reasonable, rational explanation for such a rejection.It sets a precedent that the SCA can chose what evidence to consider and ignore including vital evidence that led to the verdict in the trial. Effectively it allows  the SCA to re-examine  the trial, impart their own verdict, reject and ignore  what they chose but they deny this is double jeopardy

Judge Eric Leach commended Masipa for the difficult job of presiding  over a trial in the glare of television crews. Yet they failed to acknowledge  that Oscar gave evidence with the same technology recording every word, every cry, every retch. Unlike Oscar, Masipa did not suffer from Post Traumatic Stress, was not on medication that had serious side effects relating to memory recall and concentration, was  not subject to a cross examination that was viewed as over stepping the boundaries of acceptable practice in many countries. No consideration was afforded to these factors and how the combination of all three could only have affected his testimony and seriously impacted his right to a fair trial.

The irony of the SCA judgement is that they referred to Canadian Case Law  yet Canadian Ontario Bar Association were scathing of Nel for the bullying technique he employed in cross examination going so far as to describe it as procedural misconduct and assert it would not be permitted in that Jurisdiction.  ( Ontario Bar Association Did Oscar Pistorius have a fair trial)

The media failed to give due consideration to the words of Advocate Chris Marnewick when he stated The appeal judgement ‘will go down as one of the greatest injustices handed out by South African legal system’ and considering South Africa’s history of apartheid that says volumes.

The media instead chose to concentrate on reporting how a woman in Austria believed an individual posing as Oscar on social media was in fact Oscar. The media coverage of the entire trial preferred to go down the route of sensationalism including fabrication instead of recognising the absolute tragedy of this case and the violation of human rights within the legal system.

The SCA were correct however in referring to this case as a Shakespearian tragedy, except I feel  the actions of the State, the  SCA are more similar to those plays whose central themes are about an abuse of power. Perhaps the most  apt Shakespearian quote would be ‘there is something rotten in the State, or in this case with the State.

Why the verdict in the SCA Oscar Pistorius case is a miscarriage of Justice.

The Supreme Court of Appeal upheld the States case that the trial judge Masipa did not consider the circumstantial evidence in the case in it's totality. Regardless of whether Judge Masipa erred in her in her application of Dolus Eventualis, what was also required to prove a murder conviction was proof beyond reasonable doubt that Oscar  at the time he fired the shots knew his actions were unlawful.

If Oscar believed his life was in danger then his firing at what he perceived was a threat to his life, should not and under current legislation could not be deemed murder.

The SCA in delivering their verdict adopted a far more piecemeal approach to evidence than Masipa. They also rejected the results of the 30 day psychological evaluation. and in doing so overturned the factual findings of the trial Court - namely that Oscar had a genuine belief his life was at risk.

The SCA could not have considered the psychological evaluation and come to a conclusion that Oscar was merely anxious and therefore was not in fear for his life.

To claim the trial courts finding was either incorrectly conceived or is a question of law seems a feeble attempt to justify their judgement. In doing so the SCA also created a legal precedent as factual findings can not prior to this case be overturned by the SCA.

 To suggest that a person with no legs, on his stumps, with no means of escape, coupled with a heightened sense of anxiety, in one of the most violent countries in the world would simply be anxious in  circumstances, where they believe there  are intruders in their home is illogical and irrational. Yet that is exactly what the SCA claim to  have proved beyond reasonable doubt. No consideration was given to factual findings made in the trial court as to how the open window or the ladders underneath reinforced in Oscar’s mind that the subsequent noises he heard emanating  from the toilet were that of an intruder. There was no mention of threats he had received and how having been assaulted  weeks previously would have resulted in an anxious person to become even more apprehensive and terrified.

The suggestion made by both the State and the SCA that it could have been a child in the toilet was nothing more than an attempt to undermine the real fear that Oscar had and the reality of home invasions in South Africa.

When one delves further into their reasoning what emerges is smoking mirrors hiding perhaps the real motive which is simply a desire to gain a murder conviction at any cost. It would seem that the appeal was more about the State saving face than pursuing Justice. The State put more money and time into this case than any other. They did everything in their power including allowing a media style assassination of Oscar in their attempt to prove Oscar intentionally killed Reeva and they failed, because the evidence in the case overwhelming pointed to the fact that he did not know it was Reeva. Most similar cases do not even go to trial and Culpable Homicide is the usual verdict followed by a suspended sentence.  Yet no expense was spared by the State to achieve a murder verdict whatever way they could and in the process establishing legal precedents, changing the rules, placing the desire to win above the interests of Justice and the rights of the individual.

There have been many cases of family members killed and injured mistaken for intruders and intruders killed by house owners. It would seem that the number of shots or a fear for ones life did not become instrumental in deciding whether these cases were murder or culpable homicide. It was also never challenged or viewed as irrational their explanation that they believed their life was at risk The startling difference is that in other cases none of the people who fired the shots had a significant disability and none were famous. In fact in the case of Nelson Nobunga, who shot a man on the roof of his house, who he believed was attempting to break into his property, the magistrate said that what he did could happen to anyone.

The SCA also conveniently ignored that escape from a perceived intruder was not an option for Oscar since Oscar was unable to exit down the stairs on his stumps. Therefore the SCA have essentially set a very dangerous precedent  that disability and vulnerability are irrelevant.  This could therefore see an increase in the number of women who experienced domestic abuse being convicted of murder if they use putative self defence as a defence. The ANCWL rather than continuing to chime about this case being a victory for abused women should consider the impact of the verdict for women suffering domestic abuse, and how this verdict creates a higher likelihood of a murder conviction if a woman  kills their abusive partner believing they are about to be attacked. The verdict also suggests that attack needs to be occurring which may result in a woman only defending herself once an attack has begun which could end in her death.

The SCA in considering   Masipa’s Judgement, quoted  relevant sections-:

“In arguing that the State had failed to show that the accused lacked the necessary subjective intention in respect of both elements of dolus eventualis, counsel for the accused emphasised the accused’s physical disabilities, the fact that he had not been wearing his prostheses at the time and that he had thus been particularly vulnerable to any aggression directed at him by an intruder. He also placed considerable emphasis on the psychiatric evidence that the accused suffers from a general anxiety disorder, and would become anxious very easily in a situation of danger, although he also has a ‘fight rather than flight’ reaction. The argument appears to have been that in the circumstances that prevailed, the accused may well have fired without thinking of the consequences of his actions.”

The SCA did not share that view. There is no acknowledgement that a person with a major disability would experience a degree of vulnerability. There is no consideration that the results of the psychological assessment which was also based on psychometric testing showed that Oscar scored highly on anxiety. What however is concerning is Judge Leach’s explanation for his rejection is that it just differed from his opinion.

“In my view this cannot be accepted. On his own version, when he thought there was an intruder in the toilet, the accused armed himself with a heavy calibre firearm loaded with ammunition specifically designed for self-defence, screamed at the intruder to get out of his house, and proceeded forward to the bathroom in order to confront whoever might be there. He is a person well- trained in the use of firearms and was holding his weapon at the ready in order to shoot. He paused at the entrance to the bathroom and when he became aware that there was a person in the toilet cubicle, he fired four shots through the door. And he never offered an acceptable explanation for having done so.”

This account  fails to consider his evidence in its totality.  It also substitutes the explanation Oscar gives that he believed a person was coming out to attack him with the words ‘when he became aware there was a person in the toilet’. The SCA do all in their power to reduce the level of fear Oscar experienced including replacing his testimony with their own words and totally ignoring the impact of his disability. Judge Leach in fact makes absolutely no reference to Oscar being on his stumps but merely says the person was behind the door and although Oscar thought a noise signified the opening of the door, this was not the case.  The SCA failed to give any consideration to how Oscar could defend himself if it was an intruder. On his stumps, he could not balance and certainly couldn't defend himself if attacked. The SCA however approached the case as if Oscar did not have a disability. Although they acknowledge he does, their understanding and therefore application of what it means is missing from this Judgement, effectively they approached the case in the same way as if Oscar was a non disabled person. Oscar was unable to leave the bedroom, he had no means of escape, and every home owner has a right to defend themselves. I would also question how his believing that the noise he heard was someone coming out to attack him could be considered irrational and therefore murder when other similar cases such an explanation was considered rational even though the person who fired the gun did not have any  disability as Oscar had.

For the SCA to reject a psychological assessment with such ease surely implies a total lack of confidence in the expertise of the expert witnesses the State employed to undertake such an assessment. Yet there was no attempt to appeal the case of  Retief Liebenberg who was acquitted of a double murder largely on the evidence of the same psychiatrist who undertook Oscar’s assessment. Liebenberg incidentally  also had different defences which was not considered an issue in his case.

Dolus eventualis is not only about the foresight and reconciliation of ones actions, it must also be accompanied by the knowledge of the unlawfulness of ones actions. Therefore the SCA are required to proved beyond reasonable doubt that Oscar knew he was acting unlawfully.

There is no reference to the open window, the ladders, previous death threats, the high level of crime in South Africa. It would seem that the Judges seem out of touch with the experience of general population particularly since the statistics indicate that the crime most feared by people is Home invasions.

‘Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him. ‘

This however makes little sense since Oscar believed Reeva was in the bedroom, who exactly did the SCA suggest might be in the toilet. They imply that Oscar had no reason to think there would be a threat to his life from the person behind the door, yet they provide no alternative explanation as to who, having excluded Reeva, Oscar would somehow think was in the toilet.  Effectively what the SCA are doing is replacing what Oscar was thinking at the time with their own thoughts and interpretation and simultaneously replaced what he was thinking with what he should have known. The SCA are correct in their assertion that Oscar did not know who was behind the door. How could he, the room was pitch black and the door shut. What the SCA however don't consider is what Oscar was thinking. In fact they replace what he was thinking with  their own agenda. In their scenario there was no danger, no threat, which allows them to state he did not know whether that person in fact constituted any threat to him.  However the trial court accepted  that Oscar believed his life was at risk from the person behind the door. This was a factual finding made by the trial court and as such is beyond the scope of the SCA to overturn.

  They also provide no reason as to why Oscar would consider an intruder not to be dangerous. It  seems a contradiction to suggest that a person can believe there is an intruder in the toilet and be  irrational and reconciliatory at the same time while knowing their actions are unlawful and all these processes occurring  simultaneously in a person’s mind in a split second when they believe there's an intruder in their home.

The SCA rejected Oscar’s testimony and timeline of what preceded the firing of the shots. It replaced it with a muddled scenario where all of Oscar’s testimony in relation to what happened directly before he fired  was viewed to have occurred simultaneously. 

There is a huge difference between  Oscar being prepared to defend himself and indicating it wasn't his intention to shoot. If there had been an intruder Oscar without prosthesis would be unable to defend himself if attacked, and certainly would not have the agility and speed to get his gun if an intruder confronted him.

The actions of the State including the SCA  suggest that the prison sentence they want Oscar to serve is for the deliberate and intentional killing of Reeva. Despite the SCA accepting that Oscar did not know it was Reeva, their actions are more suggestive of adopting the state’s case that Oscar intentionally killed Reeva, they just couldn't prove it. Such a position for any judicial system to adopt makes a mockery of Justice. Such a position also raises questions about the independence of the Courts and SCA in particular. It supports a practice where a person is viewed as guilty from the onset, if the evidence fails to prove their case, it is irrelevant as they simply must be right. They can then appeal the case should they lose, claim factual findings are points of law and ensure the person gets a prison sentence for the crime they feel he should have been convicted of but  had no evidence to prove. Such a practice is devoid of any sense of Justice.

The SCA seem to have  placed much emphasis  on the evidence of Mangena, evidence that  in many parts was disputed by the defence expert witnesses. It has also been reported that while being part of the investigation team  Mangena assisted a journalist in their completion of book about the trial. If true such actions may result in disciplinary actions in many Jurisdictions, Mangena was not only promoted but received an award for his work. He was interviewed following the verdict of the SCA where he stated he believed the State case was Dolus Directus.

“I was definitely sure he knew it was Reeva behind that door,” Mangena told News24

“I could tell by the way the bullets went through the door and the evidence I collected pointed to that fact. It was not just any intruder he was shooting at, it was Reeva and he meant to kill her.

“I just couldn’t prove it.”

One therefore has to question his expertise and experience  if he was so convinced Oscar intentionally murdered Reeva based on his evidence, why did  this not come out in Court. One can not see through a closed door and the evidence in the case was overwhelmingly the view that Oscar did not know it was Reeva.. Furthermore if his investigation was as thorough as he claimed why did he fail to compare the wounds on Reeva’s back with the magazine rack to determine if this was their cause. Such a view as presented by Mangena  is suggestive  of confirmation bias, where an initial hypothesis is considered and all subsequent information or evidence is either rejected or accepted according to this initial view. Therefore his promotion and awards would seem to have been given for effectively getting a case wrong. Would a police officer who allegedly colluded with the media, held a view that a person was guilty but couldn't prove it,  the evidence and testimony they presented to the Court failed to prove their position,  be the recipient  of awards for their work, be viewed as one of the best in their profession and subsequently promoted if the accused was not a well known person and the case received world wide media attention. Surely these awards and promotion must be considered in the light that the State wanted to show the world that they got it right.

What also needs to be considered is the testimony of Mangena is referred to by the SCA as circumstantial evidence. The evidence is expert testimony and as such does not fall into the category of  circumstantial evidence. The SCA are only allowed consider the specific points raised by the appeal. The State made no mention that Masipa failed to consider expert testimony. By mentioning Mangena’s testimony they over stepped the permitted boundaries of the appeal court. 

The SCA concludes in reference to Mangena’s evidence

“All of this was circumstantial evidence crucial to a decision on whether the accused, at the time he fired the fatal four shots, must have foreseen, and therefore did foresee, the potentially fatal consequences of his action. And yet this evidence was seemingly ignored by the trial court in its assessment of the presence of dolus eventualis. Had it been taken into account, the decision in regard to the absence of dolus eventualis may well have been different. In the light of the authorities I have mentioned, to seemingly disregard it must be regarded as an error in law.”

Masipa did not however ignore Mangena’s testimony and this certainly wasn't an issue for the State or they would have included expert testimony with the circumstantial evidence as questions to be considered by the SCA.

The SCA failed to consider Oscar’s evidence in chief  relying instead on his cross examination.

Nel questioned Oscar if he remembered firing at the door. When Oscar replied in the affirmative, Nel asked Oscar why he had said the previous day that he hadn’t.  Nel insisted that Oscar had said he had not remembered firing at the door.

Nel asked

‘Why did you.. yesterday when we ended, you said you do not.   You cannot remember.’

Oscar replies

That is incorrect, M'Lady.

Nel insists

Yesterday You did!

Oscar clarified

That is incorrect, M'Lady. Yesterday, when put to me if I fired at the door, if I remember firing at the door, I said yes, I do. I remember firing at the door

Nel concluded saying it was just as well there was a record and it would be checked over lunch. Nel however made no reference to the record on return from lunch. In fact the record would have showed that Oscar was correct in what he said, he had said the previous day he remembered firing.

On another occasion Nel asks Oscar what the accident was. Oscar replied that

‘The accident was that I discharged my firearm in the belief that an intruder was coming out to attack me, or take my life.

Oscar goes on to say

‘ 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 Roux challenged Nel to this effect saying  

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

Judge Masipa intervened saying that she had written it down. She read out what she had written ‘I discharged my firearm accidentally.’ What in fact Masipa had noted was what Nel had said and not what Oscar had said.

I would question whether the SCA cross referenced the claims made by Nel both during the trial or simply accepted what he claimed.  However in the trial and the SCA hearing Nel made assertions  which could not be backed up by the court record.

Nel is regarded in South Africa as their leading prosecutor, yet internationally he has been described as adopting bullying techniques by legal fraternities in Canada, England and by legal commentaries in the US. They have not only criticised his style of cross examination but indicated that it would not be permitted within Courts in their jurisdiction. It would seem that while South Africa might wish to present to the world a view that its nation has moved on considerably since the end of apartheid, how cross examination is undertaken   remains stuck in a era where bullying and obtaining a guilty  verdict is the goal at the expense of Justice. At the conclusion of the trial Nel asserted he never questioned Oscar about the length of cord, a cord which he claimed Oscar lied about, but which was  never be produced by the State. The Court record showed he did at length. He also told SCA that Masipa never mentioned the screams heard by neighbours prior to the gun shots, when in fact she had. He also gave the SCA the incorrect time regarding Mrs Van De Merwe’s testimony regarding the so called argument she heard conveniently placing it to coincide with the pathologists evidence as to the time when Reeva may have eaten.  It is also worth considering that Nel allowed a self confessed murderer to walk in order to attempt to gain a conviction in another case and the same self confessed murderer attended the Oscar Pistorius trial and met with Nel privately during one of the recesses.

There should be international and national outcry about the practice of the State, NPA and SCA in this case. Essentially it was a tragic case where someone killed a loved one mistaking them for an intruder. No other similar  case has been viewed as murder. No other similar case has been appealed by the State. If it was an intruder that was behind the door, I sincerely doubt Oscar would have served a day in prison let alone be convicted for murder.

The case the SCA referred to The State V De Oliviera as a precedent of the defence of putative self defence, bares no  resemblance to Oscar’s case. The case dates back to 1993 and there have been numerous cases of intruders being killed since then and family members mistakenly killed which the State and SCA chose to ignore. In this case the accused didn't testify, two men were seen outside his property, there was  no indication they were attempting to break in. The men in fact worked for De Oliviera and lived at the property.   His wife told him there were unknown ‘black men’ outside the house, he told her he would sort it out before reaching for his gun, shooting 6 times killing one person and injuring the other. He was sentenced to 9 years, the State want Oscar to serve 15.

No consideration was given to the case of Siyabonga Mdunge,  who in 2013 received a suspended sentence for CH for killing his pregnant wife. She was in bed with him and when she went to the toilet the subsequent noise he heard convinced him she was an intruder.  He fired when he heard a door opening killing his wife.  His fear was considered rational, like Oscar, he got his gun, he failed to identify who was in the toilet, he walked towards the noise and shot when he heard a door opening. Unlike Oscar, he was not disabled and would not have had the same difficulties as Oscar either  exiting the house or defending himself if physically attacked.

In my view the main reason there is no public outcry in Oscar’s case is the State manufactured this case as violence against women. Yet they never had any concrete evidence for this and the trial including the psychological assessment failed to provide any clear case that this was a domestic violence killing. However the State, the NPA,  made no attempt to halt the various media stories which fabricated and sensationalised fictitious reports which effectively created the scene to allow the State to adopt whatever practices they so chose to get a guilty verdict. Practices that allowed  the initial investigator who was a State Witness to sell his story about the case to a tabloid magazine before the trial even began

The SCA verdict could never be considered a  victory for women as the case had nothing to do with domestic abuse. The message the  verdict gives instead is that disability is irrelevant. By failing to recognise disability as an issue it supports discriminatory and prejudicial practice and in doing so ignores existing anti-discriminatory legislation. While I realise that Oscar was negligent and that he should have checked more carefully the whereabouts of Reeva, his actions are not unique and sadly seem to be the product of a society where fear of crime result in tragic avoidable situations. This verdict may inadvertently result in home owners taking risks as it would seem the verdict means attack needs to be occurring before defending themselves and may result in the deaths of homeowners

What the SCA have created is a precedent like no other. They have clouded factual findings with legal questions essentially creating a scenario  where any finding that the State wants  challenging  can be done so on the premise that by virtue of questioning  findings made in the trial court it becomes  a question of law.  Their rejection of the psychological evaluation  with no explanation given,  creates a precedent that places a Judge  in a superior position to that of the experts in determining the state of mind of the accused. Even though the State by virtue of not contesting the psychological evaluation agreed with its findings, the SCA overturned it. Therefore any psychological assessment can  be rejected because the personal opinion of a Judge disagrees with its conclusion without   any reasonable, rational explanation for such a rejection.It sets a precedent that the SCA can chose what evidence to consider and ignore including vital evidence that led to the verdict in the trial. Effectively it allows  the SCA to re-examine  the trial, impart their own verdict, reject and ignore  what they chose but they deny this is double jeopardy

Judge Eric Leach commended Masipa for the difficult job of presiding  over a trial in the glare of television crews. Yet they failed to acknowledge  that Oscar gave evidence with the same technology recording every word, every cry, every retch. Unlike Oscar, Masipa did not suffer from Post Traumatic Stress, was not on medication that had serious side effects relating to memory recall and concentration, was  not subject to a cross examination that was viewed as over stepping the boundaries of acceptable practice in many countries. No consideration was afforded to these factors and how the combination of all three could only have affected his testimony and seriously impacted his right to a fair trial.

The irony of the SCA judgement is that they referred to Canadian Case Law  yet Canadian Ontario Bar Association were scathing of Nel for the bullying technique he employed in cross examination going so far as to describe it as procedural misconduct and assert it would not be permitted in that Jurisdiction.  ( Ontario Bar Association Did Oscar Pistorius have a fair trial)

The media failed to give due consideration to the words of Advocate Chris Marnewick when he stated The appeal judgement ‘will go down as one of the greatest injustices handed out by South African legal system’ and considering South Africa’s history of apartheid that says volumes.

The media instead chose to concentrate on reporting how a woman in Austria believed an individual posing as Oscar on social media was in fact Oscar. The media coverage of the entire trial preferred to go down the route of sensationalism including fabrication instead of recognising the absolute tragedy of this case and the violation of human rights within the legal system.

The SCA were correct however in referring to this case as a Shakespearian tragedy, except I feel  the actions of the State, the  SCA are more similar to those plays whose central themes are about an abuse of power. Perhaps the most  apt Shakespearian quote would be ‘there is something rotten in the State, or in this case with the State.

Disclaimer: All articles and letters published on MyNews24 have been independently written by members of News24's community. The views of users published on News24 are therefore their own and do not necessarily represent the views of News24. News24 editors also reserve the right to edit or delete any and all comments received.

 

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