Oscar appeal: 'Both sides had valid arguments'

Johannesburg - Law experts were wary to make predictions about what the outcome would be after the Supreme Court of Appeal (SCA) reserved judgment in the Oscar Pistorius matter on Tuesday.

This was despite Pistorius's advocate Barry Roux facing a grilling from some of the judges.

Defence attorney Ulrich Roux said it was clear that Barry Roux had to think on his feet.

"Judge [Eric] Leach was very hard on Barry Roux and asked him some difficult questions especially pertaining to how it is possible that the respondent, or Oscar, could not have foreseen that firing those shots into the door could lead to the death of a person."

He said the definition of dolus eventualis, as pointed out by Leach, was not about whether your actions led to the death of a specific person but rather related to the actual death of a person.

This was regardless of whether you made a mistake in identifying the person.

Roux said that was one of the most important points made during Tuesday's appeal.

"An error in persona, in other words an error in identity of a person does not amount to a defence. It is still dolus eventualis."

However, he said in his opinion Judge Steven Majiedt and Leach showed an inclination towards the State's case.

Pool microphones still on

After court adjourned on Tuesday afternoon, pool microphones for the broadcast picked up Barry Roux and Nel chatting, which was broadcast live.

Roux and Nel can be heard talking but what they are saying is not clear. Roux can then be clearly heard saying: "...maar dat ek gaan verloor is feite." [But that I am going to lose is a fact.]

Asked whether he thought Barry Roux was correct, Ulrich Roux said he did not want to comment.

Kelly Phelps, a senior lecturer in criminal justice at University of Cape Town, said she did not hear the comment and was not sure if it was true.

However, flippant conversation between opponents after a court battle was not unheard of.

"I don't know if that comment was made and we don't know the tone of it. Was it in jest? It's dangerous to read anything into that..."

Phelps said there was no way of saying which way the court would lean.

There is a five judge panel and it is a majority rule.

"We got glimpses of how individual judges were leaning on specific aspects but that doesn't give us at all a realistic indication of where the majority voices are leaning.

"In terms of the theatre we saw play out today and the intensity of the questions, it was absolutely in keeping with a continuum of what you would expect from he Supreme Court of Appeal."

Interactive forum

She said the SCA was a much more interactive forum and it was the judges' final opportunity to really come to grips and answer all the questions they had about the case.

However, it was clear that Barry Roux probably received "more aggressive" questioning than Gerrie Nel, for the State.

"Again that doesn't tell us where the judges' opinion rested in terms of the answers he provided to those questions. I think both teams have got certain significant hurdles to overcome to win this case."

Another defence attorney Manny Witz said he did not watch the full proceedings on Tuesday but from what he had seen Barry Roux had put up a "courageous" argument.

But he said he could not make a prediction on the outcome. 

Both sides had an arguable case.

Witz said he had always held the view that at best the verdict should have been dolus eventualis.

"Whoever was behind the door, whether it was the late Reeva or an intruder or whoever it was, you can't shoot in those circumstances especially when there is no imminent danger... Unluckily for him [Pistorius] she had locked the door...

"My understanding of the law is that if you shoot in those circumstances you've got a difficulty."

On Roux's comments about losing, Witz said he did not know in what context the comment was made.

He said he had not heard the comment himself.

"Sometimes they play with each other. What you say and what it means can be two different things."

He also said light banter between opponents after a court matter was normal.

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