“Justice is when the Judgement is in your favour,” wrote the Dutch philosopher, Hugo Grotius (1583-1645), whose legal philosophy underpins South Africa’s Roman/Dutch law. But one may also add that, the devil is not in the detail; the devil is in the interpretation. Pusch Commey, a Defence Counsel who has prosecuted and defended several murder cases in the Johannesburg High Court, gives his view on the Oscar Pistorius verdict.
When a beautiful model is gunned down by a famous boyfriend within the context of spiralling cases of domestic and gender violence, it is tempting to see déjà vu, at first glance. And when the perpetrator admits having fired the shots that killed the deceased, the conclusion of murder cannot seem simpler in the eyes of the public.
Just over a year ago, I wrote an article titled: “The devil is in the interpretation”, for this publication regarding the Oscar Pistorius murder trial. At that time I was absolutely convinced that Oscar Pistorius was done and dusted for the murder of his model girlfriend Reeva Steenkamp. The only question was how much jail time.
It was simple, I presumed. On Oscar’s own version, if you think there is an intruder in your bathroom and you take a gun and cock it; you walk up to that bathroom and fire four shots through the door into that bathroom, surely you must foresee that those shots might kill a person. It does not matter that the person turned out to be your sleeping girlfriend. The spirit of the legal principle dolus eventualis says you must be found guilty of murder.
Time and time again the dolus eventualis principle has been applied with venom in the South African High Court, especially in cases of robbery and murder. For example, if a criminal gang of 10, with 2 firearms, rob a shopping mall, a shoot-out with security ensues, and people die, often all 10 robbers, if properly identified, get convicted of murder – based on dolus eventualis.
Even those who did not pull the trigger, such as the driver of the getaway car parked some distance away, get convicted of murder because as some judges reason, they should have foreseen that when they set out together to rob the mall, the guns would be used. They foresaw that there might be resistance and a shootout would ensue that would lead to the death of somebody.
The Pistorius verdict by Judge Thokozile Masipa has received mixed reactions, with some factions even scandalising the judge. But Judge Masipa and assessors had the benefit of sitting and listening to the case every day in all its detail, as well as examining exhibits, and fleshing out the heads of arguments of counsel on both sides. They also had the benefit of legal research. There was no knee-jerking. But perhaps Judge Masipa’s judgement could be better explained.
One needs a closer examination of the facts, the interpretation of the facts and interpretation of the law. And one must bear in mind that the onus is on the state at all times to prove its case beyond reasonable doubt. In layman’s terms, the state must be absolutely convincing, even though there might be some minor questions here and there (my interpretation).
To recap, Pistorius admitted from day one, that he fired the four shots into the bathroom door that killed his girlfriend. The point of departure was that he said “I thought it was an intruder”. He was the only eye-witness. To get a conviction the state needed to prove that Pistorius’ version was false beyond reasonable doubt. That included its own evidence and evidence led by Oscar. It is accepted that Oscar was a very poor witness, and some of his witnesses too, but that is not where the enquiry ends.
In addition, the question is: was the state’s evidence solid enough to wrap up the case, to reach the threshold of beyond reasonable doubt? This is what is called the totality of the evidence. And it must be looked at dispassionately
But that did not end up being the case. WhatsApp messages, inconclusive expert evidence, and what people woke up to or heard on that Valentine’s Day morning when Steenkamp met her brutal death, could not be deemed reliable. Judge Masipa said no finding technology (eg phone records) more reliable instead.
The timelines of what happened that night favoured Oscar’s version of events. Besides, when witnesses arrived at the scene immediately after the shooting they found a broken Oscar trying to resuscitate Reeva, and praying to God to save her. His words even at that stage were “I thought it was an intruder”. These facts were not contested, and that in essence was consistently his story.
Can we then say that beyond a shadow of doubt Oscar did intentionally or otherwise kill his girlfriend? Which brings me back to the spirit of dolus eventualis (intruder or no intruder). Maybe unfortunately for this case, this principle has what we call a subjective test.
The subjective test takes account only of the state of mind of the accused, the issue being whether the accused himself or herself foresaw the consequences of his or her act. Which means, the judge had to put herself in the shoes of Oscar Pistorius.
In preferring his version of an intruder, she had to determine whether he should have foreseen and therefore did foresee the possibility that firing four shots through a bathroom door into a confined space, would kill whoever was inside, and nevertheless reconciled himself to firing those shots. This is where the real issue is.