Thokozile Masipa’s decision last year to find Oscar Pistorius guilty of culpable homicide rather than murder prompted an outcry from legal experts from the outset.
Firing four shots at an unknown intruder, or whoever was in the confined space behind the toilet door, was surely done with the knowledge that anyone there could be killed, a number of South African lawyers argued.
Some questioned whether the trial judge had focused too closely on Pistorius’s relationship with Reeva Steenkamp. And others said the test used to ascertain whether there had been dolus eventualis – the Latin term used to say the accused is deemed to have foreseen the outcome of their actions – had been misapplied.
On Thursday many of those critics felt justice had, finally, been done. Mahlatsi Malaka, a lawyer in in Bloemfontein, branded the original verdict “an error of judgment”. “[Pistorius] had intention to kill regardless of who was behind the door,” she told Associated Press. “That should have been the conviction of the trial court.”
At the time, Dr David Klatzow, a leading South African forensic scientist, echoed her concerns. He told the Guardian last September: “It was irrelevant whether it was Reeva or anybody else behind that door. There is a provision in South African law that [self-defence] force must be proportional to the threat and reasonable.
“If I shot someone who is punching my wife that would be unreasonable. Your life and that of anyone else has to be in immediate, mortal danger. I’m not sure that it was ever shown [that he was] in immediate mortal danger. [Such a claim] could be measured against his veracity in the witness box, which did him no favours.
“Everyone here owns a firearm and they have to undergo a written examination in which this is one of the issues. Anybody who fires a 9mm pistol will know about the lethal nature of those bullets. I’m surprised the judge found him not guilty of murder.”
Emma Sadleir, an expert on social media law, pointed out at the time that there had been close precedent in a case in which a South African rapper, Jub Jub, had been found guilty of murder after racing a car through the streets of Soweto and ploughing into a crowd of schoolchildren, killing four of them.
“The judge in that case said that he should have foreseen the possibility of the deaths and returned a verdict of murder,” said Sadleir. In the Pistorius case, she added, the likelihood of death resulting from opening fire in such a confined space was far greater.
It was this kind of argument that prevailed during the appeal hearing at South Africa’s supreme court. The chief prosecutor, Gerrie Nel, told the panel of five judges that Masipa had erred in her application of the legal principle of dolus eventualis, and that she had been wrong to conclude that Pistorius had not foreseen that firing four shots into a door was likely to kill or injure the person behind it.
Masipa had also been mistaken, the supreme court was told, in her exclusion of dolus eventualis because she accepted that Pistorius had believed Steenkamp was in bed. Pistorius will now face a far longer sentence for murder and is likely to return to prison.
