The state’s case
- South Africa’s supreme court of appeal has heard arguments from state prosecutors that the judge in Oscar Pistorius’s original trial, Thokozile Masipa, was wrong when she found him not guilty of the murder of Reeva Steenkamp.
- 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 was 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 further erred in her exclusion of dolus eventualis because she accepted that Pistorius believed Steenkamp was in bed, Nel argued. He said it meant there was criminal intent to bring about the demise of whoever was inside the toilet cubicle. On this point, at least one judge openly agreed.
- The state also alleges that Masipa was wrong to dismiss circumstantial evidence that it said proved the accused’s version of events to be impossible.
- Nel argued that the supreme court was entitled to overturn the high court ruling, because finding Pistorius guilty of culpable homicide was a de facto acquittal on the murder charge.
- Neither the state nor the defence has the stomach for a retrial, Nel said, as he asked the court to instead impose its own verdict of murder:
He had defences that exclude each other … The one he elected to use, the court rejected that one and gave him another one.
The court should have rejected his evidence as impossible …
On the objective facts, the accused cannot escape a verdict of murder.
The defence case
- Barry Roux, representing Pistorius, said the state’s case rested on issues of fact rather than points of law, and was therefore not a matter for the supreme court.
- He faced questioning from the judges, however, over Pistorius’s intentions when firing into the tiny cubicle. Judge Leach told him:
There was no place to hide in there … If you put four shots through that door you must surely see you will shoot someone.
- Roux maintained that Masipa had been correct to apply the principle of dolus eventualis to the question of whether Steenkamp was in the cubicle, given she had already accepted that Pistorius genuinely believed there was an intruder in the bathroom, and that his girlfriend was still in bed:
Why would he just want to murder someone in the toilet, knowing she’s in the bedroom?
- The defence insists that Pistorius was scared, vulnerable and on his stumps, and that his state of mind at the time of firing rules out a murder verdict.
What happens next?
The supreme court of appeal has reserved its judgment, and it has not given a date for it to be revealed.
The ruling will be based on a majority decision among the five judges, several of whom argued on Tuesday that the bench was indeed entitled to impose its own verdict rather than simply ordering a retrial if it accepts the state’s case.
The judges could reject the state’s appeal, order a retrial - although neither side showed any appetite for that on Tuesday - or substitute a new verdict.
If the appeal court decides to impose a guilty verdict on the murder charge, the case would return to the high court for fresh sentencing.
Pistorius remains under house arrest at his uncle’s house in Pretoria.
