Oscar's lawyers could have dealt their last card

By admin
18 January 2016

Early in the new year Oscar Pistorius and his legal team will be playing one of their last cards in an attempt to keep the athlete out of jail.

The Pistorius team have lodged an appeal with the constitutional court against his murder conviction in December. But how is the legal process likely to play out from here for the bladerunner? Does he have any chance of success in the country’s highest court?

Now Oscar and his team have lodged their appeal documents with the court, “the prosecution will get a chance to lodge their opposing documents”, criminal procedures attorney Marius du Toit explains.

“The constitutional court will then decide whether to grant leave to appeal.”

If the court refuses to grant it, “that would basically be the end of the process and the sentencing (following from the appeal court’s murder conviction) will take place before Judge Thokozile Masipa”.

But if leave to appeal is granted, the sentencing – scheduled for 18 April – “would in all probability be postponed pending the constitutional court’s finding”, Du Toit says.

His team do have an argument

Du Toit believes Oscar’s team make some good points in their appeal papers. “I’m not saying these points will necessarily make their appeal successful, but they can be definitely be presented. And if that’s the case the constitutional court could well say, ‘Let’s give them a chance in court.’ ”

It could also be an opportunity for our judicial system to show its efficiency to the South African public and the world.

That said, lawyers have in the past approached the constitutional court with what they regarded as excellent cases only to be told the court isn’t interested. “In other words, the court isn’t there for show or to please us. They don’t commit to just any case and if they feel this one has run its course they’ll simply refuse to grant leave to appeal.”

Yet it’s extremely important for society to be able to trust the judicial system, Du Toit emphasises. “Personally I think there’s a chance Oscar and his team will get their day in the constitutional court.”

In their appeal to the constitutional court Oscar’s team argue that the bladerunner was wrongly and unjustly convicted of murder; that the appeal court didn’t have the right to reject the high court’s factual finding that he acted out of fear under the real yet wrong impression that his and Reeva Steenkamp’s lives were in danger.

They therefore argue that “the appeal court was entitled to judge the prosecution’s appeal (against Oscar’s initial sentence for manslaughter) only on legal grounds”, Du Toit explains. One of the arguments is that where the appeal court should have concerned itself only with the interpretation and application of the law, “it interfered with Judge Masipa’s factual findings”, and in this respect made a finding that contradicts hers. “They’re saying the appeal court went beyond its powers.”

In short, in their opinion the court didn’t have the power to overrule the high court’s factual findings; they could only look at legal issues.

Mistakes regarding putative self-defence and dolus eventualis

“Then they also make points about putative self-defence in their papers – that the appeal court made a mistake in the way it approached the application of putative self-defence. They looked at it objectively instead of subjectively (from Oscar’s unique point of view).”

Putative self-defence is a legal argument that says the accused really – yet mistakenly – believed he or another person were in mortal danger.

The Oscar team also say in their papers that the appeal court made legal mistakes in the way it applied the dolus eventualis principle. This legal concept means you can foresee the possible consequences of your action, such as that it could cause someone’s death, yet you continue with the action. It can be construed as a form of deliberateness and therefore be seen as murder.

“But die dolus eventualis test has a second leg: that you should also have been aware of the wrongfulness of your action. And the appeal court never addressed this issue, Oscar’s team say,” Du Toit points out. Put simply, they argue that the appeal court ignored the second component of the principle, that the accused must also be aware that his action is illegal. This while, they say, Oscar genuinely believed they were in mortal danger and that he was acting in self-defence and therefore legally.

If the constitutional court decides in his favour . . .

If the constitutional court does grant Oscar’s side leave to appeal, a date will be set on which arguments will be led. No witnesses will be called; arguments will be led purely on the ground of existing records, just like in the appeal court, Du Toit explains.

“The court will then adjourn to a later date when they will announce their finding . . . If they then say Oscar should have been convicted of manslaughter his existing sentence will remain in effect.” Oscar will then be virtually free – he’s already served the prison part of his sentence and would merely be under correctional supervision.

But if they uphold the murder conviction, “Judge Masipa will of course continue with her sentencing”.

Whatever the outcome, if the constitutional court does decide on a hearing “it might provide answers to a few interesting legal questions”, Du Toit believes.

“Do I think Oscar should have been convicted of murder? Definitely – but that doesn’t mean the case shouldn’t be argued in front of the constitutional court; certain points can definitely be disputed.

“But after all that’s been said and never mind the legal points, if you fire four shots through a door and the person on the other side, who wasn’t in the process of attacking you, dies . . . any court would find it difficult to believe it wasn’t murder.”

  • The minimum sentence for murder is 15 years in jail, unless there are substantial, compelling circumstances that convince the court to deviate from this. The court might also take the part of his sentence that Oscar’s already served into consideration if he’s sentenced again.

-- Richard van Rensburg

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