News & Analysis

Oscar Pistorius comes full circle

Oscar Pistorius comes full circle
  • PublishedJanuary 1, 2016

Last month, five judges of the Supreme Court of Appeals sitting in Bloemfontein spoke loud and clear. The former South African sporting hero Oscar Pistorius is guilty of murder, as opposed to his conviction of “culpable homicide” for which he served a mere 11 months of a 5-year sentence. Pusch Commey, a defence lawyer himself, dissects the implications of the new verdict.

It is a legal saga that has taken many twists and turns. But now, in front of the whole world, which has keenly followed the former Olympian’s case since he killed his girlfriend Reeva Steenkamp on Valentine’s Day 2013, Oscar Pistorius has been found actually guilty of murder. That is: of the unlawful intentional killing of a human being, instead of being guilty of culpable homicide (the unlawful negligent killing of a human being), as per the ruling handed down by Judge Thokozile Masipa, who sentenced him to 5 years on this lesser charge last October. He was released 11 months later to serve the rest of the sentence under house arrest.

The new judgement, written and delivered by Justice Eric Leach, was unanimous. All five judges agreed that Judge Thokozile Masipa was wrong in her application of the legal principle of dolus eventualis.

The matter has been sent back to the trial court for an appropriate sentence that fits the crime. The enquiry will take place some time this year in the continuing saga described by Judge Leach as “a tragedy of Shakespearean proportions.” At the time of going to press, Oscar had been granted bail amid reports that he intended to appeal the new conviction.


Dolus eventualis

But what is dolus eventualis? In simple terms, it is foresight of the consequences of one’s wrongful actions. In many jurisdictionss murder à la dolus eventualis is described as second degree murder, distinct from first degree murder where there is planning or premeditation.

The prescribed minimum sentence according to South African law is 15 years’ direct imprisonment as opposed to life imprisonment for first degree murder. But Judge Masipa was free to impose any lesser sentence if she had found substantial and compelling reasons to depart from the minimum sentence. In the landmark case of The State vs Malgas delivered in 2001 by the Supreme Court, “substantial and compelling” means “weighty justification”. Pistorius was originally sentenced to 5 years’ imprisonment under a provision of the Criminal Procedure Act (section 276 1,1) which allowed him to only serve one sixth (10 months) in jail, with the rest of his sentence to be served under correctional supervision (some call it house arrest). Pistorius, before the latest judgement, had been released from jail and begun the process of correctional supervision, which included community service.

Judge Masipa most likely found weighty justification and she may have been right. There was Oscar’s physical disability, his phenomenal triumph over adversity that brought him international fame in athletics.

But what are the predictions now? A likely departure from the minimum sentence of 15 years in all probability will see him back in jail with anything from 4 to 10 years’ direct imprisonment.

Oscar can also stall the sentencing outcome by filing an appeal at the country’s highest court, the Constitutional Court. But it must be on constitutional grounds, meaning he will have to allege that for one reason or another he did not get a fair trial because his constitutional rights were violated. In that case he can be set free, or the court can make an appropriate order. It will be extremely hard to find a constitutional reason, as Judge Masipa previously, was scrupulous in the conduct of the trial, with an outcome that seemed favourable to Pistorius.


Judge Masipa’s faux pas

So where did Judge Masipa go horribly wrong in law? The crucial error according to the Supreme Court was when in her judgement she said Pistorius could not have foreseen the death of his girlfriend behind that door, since at the time he thought she was still lying in bed. (The judge had agreed with Pistorius’ version of events that night). It was an error that seemed obvious to any legal practitioner. The reason being that, according to the textbooks, it does not matter who you foresee will be killed as long as you foresee that a human being might die through your wrongful actions, and yet you proceed in reckless disregard of the consequences, while reconciling yourself to the possible outcome.

It was the problem of dolus eventualis that the general public and commentators complained about all along after his conviction, and perhaps the judge confused herself in that she was looking at what Pistorius in his personal capacity , subjectively foresaw or did not foresee, with respect to his girlfriend, contrary to the legal principle which states that one must subjectively foresee the death of a human being, and not necessarily a specific one.

On Oscar’s own version from the beginning, he intentionally fired at an intruder he suspected was in the bathroom. So it seemed he was literally pleading guilty to murder, dolus eventualis. Meanwhile, at the time, that intruder posed no imminent threat to his life. He had not even seen him, or heard him talk. He did not even fire a warning shot. Consequently he could not claim he was pre-emptively defending himself against a credible danger (putative self-defence).

Then there was the impressive testimony of the State’s ballistics expert Captain Chris Mangena who aptly reconstructed and demonstrated with laser technology how the whole event unfolded. Some have dubbed him the hero of the trial. The Supreme Court could not understand why his particularly useful evidence was ignored. It noted “having regard to the position of the bullet holes in the door, the marks the bullets left in the toilet cubicle and the position of the injuries on the deceased’s body, and after making use, inter alia [of] laser technology, he, Mangena, determined that the deceased must have been standing behind the door when she was first shot and then collapsed down afterwards on the toilet bowl”. Consequently, judging from the small size of the toilet cubicle, whoever was behind the door would have had nowhere to run to when the shots were fired.

The significance was clear. Pistorius, knowing how small that cubicle was, cannot claim not to have foreseen death. And worse was that he kept changing his defence in the course of the trial, from putative self-defence to temporary non-pathological insanity, to lack of foresight. These contradictions were also ignored by the trial judge.

All over the world eminent judges err. It is exactly why there are layers of an appeal process to correct errors. It is also why the Supreme Court of Appeal had five judges hearing the matter. At the end of the day the unanimous verdict in the court of public opinion was that justice had now been served. Pistorius would not be saved by his fame and fortune, and the excellent South African judicial system stood validated.

But there are still some unanswered issues of fact only known to Pistorius, which the Supreme Court was not permitted to examine. It evokes the trial of O.J. Simpson. Why would anybody, alone with a spouse or lover at home, go into the bathroom with cell phones in the middle of the night, and actually lock herself behind that bathroom door. The State unsuccessfully tried to prove that there was a quarrel or a fight, and that Steenkamp fled into the bathroom for safety, carrying the phones in order to call for help. But as they say, truth can be stranger than fiction, and like many stories, the real facts of the saga of the blade runner will continue to be a subject of speculation. That is, until he decides to one day come up with a version that explains all the facts. But will he? NA

Written By
Pusch Commey

Pusch Commey is a Barrister of the High Court of South Africa, Award winning writer and associate editor of New African Magazine since 1999. He is based in Johannesburg South Africa. He is the author of 9 books including the best selling 100 great African kings and queens, and Tofi's Fire Dance. He is also the CEO of the South African based Real African Publishers, and the founder of the Real African Writers  series.

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