Pistorius remains in jeopardy of a murder conviction.

Posted: September 13, 2014 in Uncategorized

While Masipa J has delivered judgement in the Pistorius case, there appear to be errors of law in her judgement. These errors of law may allow the prosecution to appeal.
Many commentators are saying that Masipa’s mistake was to misconceive the form of intention in our law known as dolus eventualis. A careful analysis reveals that the apparent error relates only partly to dolus eventualis. Instead, the apparent error related to how Masipa conceived of dolus eventualis as related to a far more complex issue in our law: the difference between the scenarios of error in objecto and aberratio ictus. It is only by understanding these scenarios, and the settled law on these scenarios, that one can understand where Masipa appeared to go wrong.
After dismissing the prospect of premeditated murder, Masipa turned her attention to whether Pistorius was nevertheless guilty of murder.
She indicated that this required that she deal with the defence argument that a conviction in the circumstances would require that the court revive an old doctrine rejected from our law: transfered intent. The spectre of this is daunting – because to understand that this doctrine is not in question, one must understand what it is, what it is not, and why it doesn’t apply. Correctly Masipa identified that this required an analysis of two scenarios in criminal law: error in objecto and aberratio ictus. Anyone who tells you these are easy to understand, probably hasn’t understood them. At its essence, scenarios of error in objecto (or where one is dealing with a person, error in persona) relate to circumstances in which one strikes/shoots at a particular object/person and one hit one’s target. If you have aimed at a human being (a particular human body), and you hit and kill that human being, you cannot argue that you thought that the person you killed was John, whereas, in fact, it was Peter. This (error in objecto/persona) is irrelevant.
Aberatio ictus on the other hand means “going astray of the blow” – and ultimately describes scenarios in which one misses one’s target. This is crucial because it is the essence of the distinction between scenarios of error in objecto and aberratio ictus. It is an aberratio ictus scenario where one aims and shoots at someone (John), but misses that person and strikes and kills another (Peter). The question arises whether this mistake is material and can form the basis of a defence.
In these scenarios, our law used to refuse to recognise that this mistake could possibly be a defence. It used to simply regard your intention to kill John as “transferred” onto Peter. Hence, “transferred intent”. Our law has shifted and rejected this transferred intent approach. It is now possible on our law to rely on this mistake as a defence against a murder charge in respect of Peter – but only if there was no other form of intention that actually fell on Peter. That is, our law will allow you to be convicted of the murder of Peter, if, while you intended to kill John, you also had intention in respect of Peter – such as perhaps dolus eventualis – you foresaw the risk of missing John and killing Peter, accepted the risk and proceeded. (For further discussion of the meaning of these two scenarios and the difference between them, please see http://wp.me/p3efQr-2)
Lets consider into which scenario the facts of Pistorius fits. Did Pistorius miss his target? No, he did not. He aimed at a particular human being and shot and killed that human being – whoever was behind the door. There can be no question that this is a scenario of error in objecto and that the identity of the person behind the door was irrelevant.
Masipa discussed these scenarios, correctly stated the law, and correctly identified that we (on the facts of the Pistorius case) are dealing with a scenario of error in objecto – in which (in the relevant sense) the identity of the victim was irrelevant. That is, it doesn’t matter who was behind the door. The significance of all of this is that it has direct implications for the way in which one enquires whether an accused had intention or not.
Then the first sign of trouble appeared. After turning her attention to the accused’s defence of putative private defence, Masipa stated that the question was: “whether the accused intended to kill.” Immediately it becomes apparent that there was a misconception regarding the nature of the defence of putative private defence. It is not the question of whether the accused intended to kill,  but whether he intended to unlawfully kill.
The question of whether the accused intended to unlawfully kill is the question of whether the accused believed he was under attack and entitled to resort to force in defence. This question was not engaged with. The question the judge pursued was whether he intended to kill.
At that point it seemed Pistorius was bound to be convicted of murder – given that there seemed little question that he did intend to kill whoever was in the toilet – despite his defence of putative private defence. But the judgement took another strange turn.
“I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively forsee that it could be the deceased behind the toilet door;
2. Notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.
The evidence before this court does not support the states contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that, from the onset, the accused believed that at the time he fired the shots into the toilet door, the deceased was in the bedroom, while the intruders were in the toilet.”
She repeats this again twice: did he forsee the possibility of killing the deceased – although, on the third occasion coming closer to what ought to have been addressed: whether the accused foresaw the possibility of killing whoever was behind the door. She says, on the third occasion, that the accused did not forsee killing “the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time”. But accepting that the accused thought that the deceased was in the bedroom does not exclude the possibility of there being someone else behind the door. Indeed, ironically, that is his own version: that he thought there was someone else behind the door. Applied to the undisputed law on error in objecto where one mistakes one person for another – which is immaterial – the question ought to have been: “did the accused forsee the possibility of killing whoever was behind the door”. This is an entirely different question which,  in turn,  begs the question whether the accused must have, and by inference did, forsee that he would kill whoever was in his toilet by firing four shots through the door.
It is true that, on day two of her judgement, she referred to several authorities on how one may reason to a finding of dolus (intention). These authorities make the valid point that one must be careful not to conclude that just because a reasonable person would forsee something (death of someone for our purposes), that the accused did. This is the usual and well founded caution against a logical error of thinking that just because something should be true, doesn’t make it true. Just because someone should have realised something doesn’t mean s/he did realise it.
She also summarised her findings and, in reference to dolus eventualis, said that “this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.” Regretably this takes things no further because it is a bare conclusion without the all important reasons for this statement. We are left having to rely on the reason she provided previously in her judgement – that he did not forsee killing “the deceased or anyone else for that matter” because, as she said previously, the accused thought that the deceased was in the bedroom. As discussed above, a belief that the deceased was in the bedroom does not exclude someone else being in the toilet and this is exactly what he believed, on his own version.
What is also revealing is that, on a defence of putative private defence, even if a court accepts that the accused acted in putative private defence (mistakenly believed he was under attack and was entitled to resort to force in defence), the problem of how much force in defence arises. It is not the question of whether the extent of force actually used was allowed, because, given that there was no attack, no force at all would be allowed. The question – a very necessary question – becomes, did the accused foresee that he was not allowed to resort to that extent of force. Masipa ought to have asked, if she engaged properly with a defence of putative private defence, whether, not only was the accused mistaken, but was he so mistaken that he could have believed he was entitled to fire four shots through a door at an intruder. The court could have gone either way on this, but that is not the point. The point is that this is another reason to think the Court did not properly engage with the defence of putative private defence.
On the charge of unlawful possession of ammunition Masipa seemed to conflate the mental requirement for possession (knowledge of possession), with the mental requirement (known as fault) for the crime – that is, can one only be guilty of this crime if one intends to unlawfully possess ammunition or even if one only negligently unlawfully possesses ammunition. The statute that creates this offence is silent on the issue, which requires, in turn, that a court must decide what form of fault, if any is required. This analysis is conspicuously missing from her judgement. The significance is that an analysis could have led her to the conclusion that only negligence was required. If that were so, his defence that he did not know he was not entitled to be in possession of the ammunition would have to stand up to the appropriate test of negligence: would the reasonable firearm owner know that this is prohibited?
In the final analysis, Masipa appears to have erroneously conceived of the defence of putative private defence, and to have misconceived the test of intention when dealing with a problem of error in objecto. Also, she appears to have conflated a requirement for possession for the fault required for the unlawful possession of ammunition. These are all, arguably, errors of law. As errors of law, the state may appeal. The effect is that, if the state does appeal, and one may well expect that it will, Pistorius continues to face the prospect of a murder conviction.

Comments
  1. Karen says:

    Simply, it was and still is obvious that OP INTENDED to kill Reeva. Tallon/tallon style bullets were used at varying planned angles, the WHOLE evidence around the murder equals a person of OPs behaviour and personality intending to kill Reeva.

  2. Can anyone point me to the S v Seekoei : 1982(3) SA 97 (AD) judgement anywhere online? I would be very interested in reading it.

  3. Dawn says:

    One thing I noticed that was missing from your analysis of the judgement is the fact that Judge Masipa stated that Oscar clearly didn’t intend to kill, as he had stated he would have fired higher up to aim at the person’s chest/head. She said that she took this as evidence that he did not intend to kill. Also, with regard to the charge for illegal possession of ammunition, didn’t the defence mention a section of the law which states that there has to be an intention to use the ammunition and because there was no evidence of this they couldn’t convict?

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  6. DJ says:

    INTENTION TO HARM REMAINS

    The scenario is much more intentional than a merely ‘reckless’ act, even without ‘dolus’, in my opinion, there is intent, even on Masipa’s own terms. : intention to disable the burglar by shooting them before they move further?

    His intention in this respect has not been ruled out by the judge: To prevent further movement. He wanted to ‘strike’ the first blows. He knows right from wrong. It cannot be mere coincidence he shot through the door covering the door in “blows”.

    He reconciled himself in a “split second” to disable the person, after they hid from him when he shouted and swore, he then shot, on account of the fact they moved. That sounds like a high degree of culpability to me.

    Provoked PPD?

    Even if the bullets had not killed the ‘intruder’ they would have permanently disabled the toilet occupant, in all probability, worse than Pistorius’ own disability. He was also unconcerned to check on the health of the burglar immediately after firing.

    Despite the fact he heard no further movement.

    The continuing bullets, for which he is also responsible, would be likely to catch the person as they fell. As in fact happened.

    • DJ says:

      A STARK CHOICE FOR MASIPA, SHOULD THE STATE DECIDE TO APPEAL

      In order to avoid the legal appeal on “dolus eventualis”, at a minimum the court would need to be prepared to defend the factual finding he may have lacked foresight of the possibility of death. To do so, in context of any kind of PPD, would be to set as a precedent that it is possible for a fully competent, prepared adult, to set about to deliberately disable a person with bullets yet perhaps not foresee that it might kill.

      This principle should be binding unless the person would admit otherwise, even in the case where they are “not candid” about their state of mind while firing e.g. Pistorius said he “did not intend to open fire” but this was rejected. So even in the case where it is proven that the state of mind is an evasive one.

      Using the same maxim, which might become known as the ‘Pistorius precedent’, one may convert any deliberate DECISION to shoot a person from a murder, into a case of culpable homicide, simply denying that it occurred that the person may die in the process of deliberately shooting them. It might be different if the ‘decision’ element was in doubt, but it is essential to self-defense.

      If the state appeals the dolus ruling, the choice for the court is stark:

      Either defend the factual finding but make murder unchargeable except if the person says they conceived the possibility of the outcome before killing the other – or allow another court to investigate the legal error and perhaps adjust the charge.

      Clearly the first option will provoke an urgent need for clarity somewhere higher up. It’s therefore unlikely Judge Masipa would not simply grant leave to appeal the legal part of this decision IMO.

      • spqr2014 says:

        THE SUBJECTIVE ELEMENT IN PDD OR MISTAKE AS TO SELF DEFENCE

        DJ – “Either defend the factual finding but make murder unchargeable except if the person says they conceived the possibility of the outcome before killing the other”

        Possibility of the outcome means the knowledge of the risk of killing a person? Intentional killing of a person is lawful if the facts support a finding of honest belief to defend oneself in the face of an imminent attack on ones life (applies to a mistaken belief too if the belief honestly held.)

        The test in English law used to be objective. R v Beckford (1987) cemented the subjective element:

        “The defendant is expected to react to the threat he subjectively perceives as would a reasonable man in the circumstances as the defendant believed them to be.”

        – “Self Defence and Mistake: A Way Forward”, Modern Law Review, [March 1990 p.189]

        The Privy Council (PC) in Beckford endorsed a model direction as follows:

        “Whether the plea is self-defence or defence of another, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken BELIEF of the facts: that is so WHETHER THE MISTAKE was, on an objective view, a REASONABLE mistake OR NOT”

        So lets take an example of a racist. He encounters a black man who asks in an aggressive manner for money. (Assume that is not contested.) The man shoots the beggar because he has read and believes, honestly though unreasonably, that all black men, who beg aggressively for money, ultimately turn violent and thus he, fearing for his life, made a pre-emptive strike when he saw the beggar reaching for his pocket to pull out what the man believed was a knife.

        What is the test here? If the belief was honest, however unreasonable, does that render acquittal?

        The PC went on to say:

        “[N]o jury is going to accept a man’s assertion that he believed that he was about to be attacked
        without testing it against all the surrounding circumstances. In assisting the jury to determine whether or not the accused had a genuine belief the judge will of course direct their attention to those features of the evidence that make such a belief more or less probable. Where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held.”

        So, I am a jury member. I need to determine if defendant had an honest belief. How to do that? The defendant said he did, but to use those famous words of Mandy Rice-Davis, “he would say that wouldn’t he”. So I put that to one side and test the assertion. I listen to the evidence and the facts. I put myself in the position of the defendant and ask the question would I have done the same? If yes, I believe the defendant and his honest belief. If not, I don’t. There is no other way to do it. In doing this, I am applying my lifetimes experiences and common sense to put myself in the position of the “reasonable man” and in so doing, apply an objective test.

        What use is a “subjective honest belief” if the test to decide it, is an objective reasonable one?

        Why not just call it what it is (and what is was up to 1971 in England), an objective test?

        Putting that to one side, Masipa J held OP had a genuine belief. On the facts, I disagree. We can create a scenario that does support such a finding:

        You are driving in your car. Ahead of you is a blue car. A red car approaches from behind, overtakes you and the blue car in front, and proceeds to stop suddenly blocking the road causing the blue car, and you to brake heavily. A man emerges from the red car, walks towards the blue car, gets within a metre or so, looks inside, stops, pulls out a gun and shoots the driver repeatedly. The man then proceeds to walk towards you, still carrying his gun. You think you are going to be shot dead, duck behind the dashboard, remove your licensed firearm from the glove box and in one movement point the gun at the man and fire. He is killed.

        The man you shot was an undercover policeman. The man in the blue car a dangerous and armed criminal.

        In these circumstances, you would be likely be acquited of murder and manslaughter. This is not a case of self-defence, as you were not under an attack, but you honestly believed you were. The state of mind called honesty can be inferred from the facts and the evidence. On these facts, which jury would not put themselves into your circumstances and agree that subjectively you reasonably held an honest belief because objectively they would have done exactly the same thing? The mistaken belief, in these circumstances was honestly held because it was a reasonable one (or is the case that it was a reasonable belief because it was honestly held?): unmarked police car; no knowledge of weapons in blue car; no knowledge of occupant of blue car; no knowledge that policemen saw occupant of blue car reaching for shotgun.

        You saw a man shoot dead another man, turn and start walking toward you, still armed. You believed you were next to be shot. If an accused was in the witness box and I listened to that testimony, I would believe them. I would have felt exactly the same in those circumstances. Any reasonably minded person would.

        So the subjective honest belief is “proven” by applying an objective test. With OP, how can it be said that the facts support a similar finding?

      • DJ says:

        @spqr2014. I agree with your analysis about PPD. It was incumbent on Oscar to give a clear and honest account for why he fired those bullets. The judge agreed it wasn’t the whole truth but still gave him the pass and to my mind that’s the most controversial aspect of the judgement.

  7. DJ says:

    Interesting that if Masipa would attempt to defend her finding on foresight as a factual one then the ability of the state to prosecute murder is significantly reduced to cover almost all circumstances of homicides, in the event the defendant does not explicitly admit they had foresight? I can’t think of any possible proofs the state could apply in general homicides which was not already established on the facts in this case.

    The door is probably the only tiny area for debate.

    There are horns of a dilemma should the state go ahead and query this: Either grant appeal, or clarify that she really does mean to make dolus eventualis either impossible or nearly impossible to prosecute? Until such time as higher courts say no sorry terrible judgement there.

    If Oscar had been found to be perfectly reliable that might be different but she was forced to reject his claim already that he “did not intend to fire”, as well as describing him as “evasive” and “not candid”, and in addition he was found to be “criminally responsible” and “sufficiently trained” with both the weapon and his arm prepared to fire, and had “time to reflect”, and fired “because of” and “at” the person. There is nothing left to prove. If she says no there is, then what? The door???

    Is a visual barrier a valid defence against murder in the event every other condition is satisfied and the person does in fact know a person on the other side. So would that be the Masipa precedent then?

    She must clarify – or grant the appeal! 🙂

    Just wondering what there is in South African law, perhaps, in relation to shooting through intermediate targets and how that relates to intent, or foresight? There must be some interesting case… ?? 🙂

  8. Carmen says:

    Professor Grant,

    I know you are busy, but I really hope to hear your comments on this. According to two legal analysts with 60 years of experience between them, it is highly unlikely that Mr. Pistorius could be convicted of murder now because a competent verdict was made. Below is their reasoning and the link to the article.

    Thoughts?

    A former Eastern Cape Director of Public Prosecutions Advocate Les Roberts, SC, said in that case, the SCA – in interpreting the relevant section of the Criminal Procedure Act (CPA) – found the state could only appeal a decision where there had been a “complete” acquittal. It ruled that if there was a competent verdict on a lesser charge, then the state may not appeal.

    http://www.dispatchlive.co.za/gen/oscar-verdict-a-done-deal/

  9. Hopefully the state will appeal this one & appropriate decisions be made

  10. pan81 says:

    NEW GROUNDS FOR APPEAL

    Where an accused makes statements in his defence, and these statements are not disproved, then it is a matter of law that a court cannot set these aside and dream up more favourable possibilities that he could have proffered instead and proceed on the basis that this dreamed up version could reasonably possibly be true.

    OP has ALWAYS maintained that an intruder being INSIDE the toilet did not put him in danger.

    It starts with his bail application: “I believed that when the intruder/s came out of the toilet we would be in grave danger.” This is maintained in his trial testimony, where he said he thought his life was in danger not because they were inside the toilet, but because they were now opening the door and coming out to attack him.

    Why is this crucial? Because the objective evidence shows no magazine rack moved and no sound could have taken place to make OP think the door was opening, therefore this aspect of his trial version is disproved (in fact, his trial testimony as to why he shot at all has been rejected as untruthful). His bail application version is very different to his trial version, in that he fired pre-emptively before they had a chance to come out. There is no mention of thinking they had started coming out to attack him. This further confirms that the perceived imminent attack was a fabrication offered only during the trial stage.

    We are left only with his belief that though the intruders were inside the toilet they were not actually coming out of the toilet. On his own version, he believed this did not put him in immediate danger. However, the court has found that he DID believe his life was in danger at this point. This is setting aside an accused’s version and proffering a more favourable one which has been dreamed up. Presumably, the court has found for example that maybe he thought there was an armed intruder who was about to shoot through the door. The accused’s own version however is that he never believed any such thing. Even without OP’s version, the fleeing into the toilet and closing of the door and an innocent Reeva merely standing behind it constitutes strong prima facie evidence that he cannot possibly have thought he was under imminent attack. Therefore he intended to kill unlawfully, i.e. murder.

    Case law in point

    “I may not think up a defence for him. The accused may continue to protest his innocence – that is his right. But I cannot foist a defence on him” S v Mthembu (CC 163/2008) [2011] ZAKZPHC 60

    “It is trite law that a Court is entitled to find that the State has proved a fact beyond reasonable doubt if a prima facie case has been established and the accused fails to gainsay it ….. But one of the main and acknowledged instances where it can be said that a prima facie case becomes conclusive in the absence of rebuttal, is where it lies exclusively within the power of the other party to show what the true facts were and he or she fails to give an acceptable explanation ……. The State is not required to plug every loophole, counter every speculative argument and parry every defence which can be conceived by imaginative counsel without a scrap of evidence to substantiate it” S v BOESAK [2000] ZASCA 112; 2000 (1) SACR 633 (A)

    Similar principles apply to the finding of direct intention to shoot but no foresight of killing even the intruder, which was never offered even as a backup defence by the accused or his counsel. If you drop the baton of truth, it is not for counsel let alone a court to pick it up and finish the race for you.

    This is a matter of law, and allows an appeal. The matter of law has led to an erroneous finding of fact, which can and should be reversed to reach a guilty verdict on murder. I’m beginning to think this should be top of the list on any appeal by the state… would be interested in what others think…

  11. Jason says:

    Prof Grant,

    In OP testimony he said he could see the toilet door and so would have seen the door handle was not turning so would have known he was not being attacked by the intruder. I assume that as a license gun holder he would have known he can’t shoot someone behind a closed door?

    Hence he should have known he wasn’t entitled to shoot through a closed door (which was not opening).

    His only defence would then have been the startle defence but I think Judge Masipa rejected it.

    I was interested in finding out what the Judge’s reasoning would be with respect to Dolus Eventualis on the imaginary intruder.

    • AD says:

      Hi Prof Grant. A senior prosecutors in the E Cape (Malherbe Marais, SC) and a former E Cape DPP (Les Roberts, SC) say S v Seekoei : 1982(3) SA 97 (AD) may well put paid to any chance of an appeal. Your opinion please. (Hope the reference is correct)
      Many tx
      Adrienne

      • James Grant says:

        Thanks for this. I have had to revise my thinking on this and agree that, given that the state will have to rely on s 319, the case of Seekoei will be a hurdle. I don’t see it as insurmountable though. I am studying the judgement and don’t think it will hold. I expect it will be overturned on appeal – at the SCA or, ultimately, the Constitutional Court – particularly given Basson 2007 CC. Hope to post a detailed comment soon…

      • pan81 says:

        IS AN APPEAL BY THE STATE EVEN POSSIBLE: I SAY YES

        I believe s310 of the CPA does not apply to OP’s case as it applies only to lower courts, not the high court which is a superior court. s319 must be used to appeal instead.

        Does the case of Seekoei exclude an appeal? I say it should not.

        It all rests on s322(4) where the Criminal Procedure Act refers to “acquittal”. I’ve looked into it, and I don’t care what the case law says – set a new precedent if necessary. The Act itself clearly only intends one thing when it refers to “acquittal” even if restricted to complete acquittal. It means in such a case, the appeal court can order a RETRIAL if it so wishes. That’s all it is saying, and it is clear to me at least that this is what the lawmakers intended. It does not intend whatsoever that the state cannot appeal and the judgement be remedied in the usual way if there was a guilty charge on a competent verdict.

        Criminal Procedure Act http://www.justice.gov.za/legislation/acts/1977-051.pdf

        Powers of Court of Appeal

        s322(1)(b)
        In the case of an appeal against a conviction or of any question of law reserved, the court of appeal may give such judgment as ought to have been given at the trial or impose such punishment as ought to have been imposed at the trial

        s322(4)
        Where a question of law has been reserved on the application of a prosecutor in the case of an acquittal, and the court of appeal has given a decision in favour of the prosecutor, the court of appeal may order that such of the steps referred to in section 324 be taken as the court may direct.

        s324
        Institution of proceedings de novo when conviction set aside on appeal

      • James Grant says:

        Thanks for this. I have had to revise my thinking on this and agree that, given that the state will have to rely on s 319, the case of Seekoei will be a hurdle. I don’t see it as insurmountable though. I am studying the judgement and don’t think it will hold. I expect it will be overturned on appeal – at the SCA or, ultimately, the Constitutional Court – particularly given Basson 2007 CC. Hope to post a detailed comment soon…

      • AD says:

        Oh … ok. I was given to understand s 310 dealt with appeals from lower courts (mag courts). I will check it out thanks!

      • James Grant says:

        You are right. I have had to revise my thinking on this and agree that, given that the state will have to rely on s 319, the case of Seekoei will be a hurdle. I don’t see it as insurmountable though. I am studying the judgement and don’t think it will hold. I expect it will be overturned on appeal – at the SCA or, ultimately, the Constitutional Court – particularly given Basson 2007 CC. Hope to post a full comment on this soon…

  12. slick says:

    “We respectfully contend that should the court accept the accused’s version of events as reasonably possibly true, the accused cannot escape a conviction on culpable homicide”
    http://www.enca.com/oscar-trial-states-heads-argument

  13. pan81 says:

    ANY ‘APPEAL’ NEEDS WORK YET?

    There’s no point skirting around the issue.

    The finding he did not foresee the possibility of killing the person behind the door let alone Reeva is a finding of fact that trumps any misunderstanding or misapplication of law. It trumps any murder conviction all by itself.

    There are 3 reasons actually given by Masipa for the finding (listen for the sentence itself and the one after starting “To say otherwise”)

    1) He believed Reeva must be in the bedroom. 2) He was not playacting in his conduct post-killing observed by Dr Stipp and others. 3) It is highly improbable he could have thought up an intruder excuse so quickly

    Clearly, these reasons can only begin to explain foresight of killing Reeva. Therefore, concerning the person behind the door/perceived intruder:

    EITHER THE REASONING IS ABSENT, OR IT IS ABSURD.

    If on a critical matter on a most serious charge, a high court judge fails to give reasoning, or writes something absurd like “he cannot have had the necessary intention because Mars was in Virgo at the time of the incident”, then there must be a process to follow to get it appealed. I suggest this process be followed in this case – this is a matter of principle and failure of justice.

    Why does it matter? Because indeed if this finding of fact is found to be reversed, as virtually everybody believes it should be, then murder is back on the table. How? Because the dolus eventualis to be excluded is not restricted to foresight of Reeva. In other words, only now do we get to Masipa’s understanding and/or application of the law being relevant. What should also have been excluded is:

    A) Foresight and acceptance he may not be under actual or imminent attack
    B) Foresight and acceptance his response may be unnecessary or excessive

    (A) is not excluded by the finding that OP believed his life was is in danger. Unless explained precisely by a judge, this may just mean “danger was looming, but an attack was not imminent or underway”. The fact Masipa said he believed it from the moment he heard the widow open and he was far away seems to indicate this. Even if she did mean he believed an attack was imminent, then this still does not exclude foresight of a chance it may not be, in exactly the same way she posed the question about foreseeing it was Reeva behind the door despite believing it was an intruder.

    Concerning (A) I would suggest it is proved beyond reasonable doubt because it is so improbable he did not at least foresee this after thinking an intruder fled to the toilet and closed the door that it cannot be reasonably possibly true. Further, his bail application clearly suggests he knew he was taking a pre-emptive strike rather than responding to an actual or imminent attack. (It also has a whole paragraph of thinking in relation to firing the shots, seemingly missed by everybody)

    It is entirely possible the judge will refuse an appeal as formulated in your excellent article Professor, because she will simply ask – what difference will it make to the verdict? She would surely say none because the finding of fact is not affected by the question of law. With respect, if you believe differently, you need to set out your case much more simply and clearly because even I do not see how the two are linked and I wish there was one more than anybody. Even if she grants appeal, it is entirely possible the appeal court will similarly fail to see it and though correct questions of law, leave the verdict unchanged.

    • Jason says:

      “The finding he did not foresee the possibility of killing the person behind the door let alone Reeva is a finding of fact that trumps any misunderstanding or misapplication of law. It trumps any murder conviction all by itself.”

      I don’t understand. It’s a “finding” based on a misapplication of law?
      Material Facts — Misapplication of Law —> erroneous Finding

      • pan81 says:

        Did you read my last paragraph? Then you should understand.
        I know the claim from the Professor. I see your arrows. I don’t see how it makes sense, how did the law affect findings of WHETHER OR NOT he had foresight. The law applies TO such findings. If there’s one thing we should have learned by now, it’s that you need to spell everything out clearly so that judges can’t easily dismiss an argument.
        If I were to just draw arrows I would say:
        material fact -> erroneous finding of fact on foresight -> error in law -> appeal court applies correct law -> same verdict
        Can you or the learned professor convince me otherwise let alone an appeal court?

    • Doc says:

      “The finding he did not foresee the possibility of killing the person behind the door let alone Reeva is a finding of fact that trumps any misunderstanding or misapplication of law. It trumps any murder conviction all by itself”.

      I am not a lawyer or a legal expert but in thinking about this proposition, is the problem not that she considered the question (of law) to ask in order to determine whether the accused could be found guilty of murder dolus eventualis and having formulated (what is largely considered and erroneous question) made a finding. The facts she used to substantiate it was his conduct and his belief that Reeva was in the bedroom. Had the question of law been formulated differently then these would not have been substantive fact. I suppose one must be careful not to class her finding on a question of law as fact. What she uses to substantiate the answers to those questions are the facts, her interpretation of the law can be ascertained from the way in which she formulates the relevant question in order to conclude on something like dolus eventualis for example.

      Or am I missing something?

      Also I came across a vaguely interesting read that covers the difference between questions of law and fact which can be rather subtle at times it seems.

      http://www.justice.gov.za/salrc/reports/r_prj73_appeal_2000dec.pdf

    • Jason says:

      “how did the law affect findings of WHETHER OR NOT he had foresight.”

      Judge Masipa did not ask the question “Did OP have the foresight that an Intruder was behind the door and that by shooting he would likely kill the intruder”

      She only asked the question “Did OP have the foresight that Reeva was behind the door and by shooting he would kill Reeva”

      So her findings were based on the WRONG question. This is an ERROR in the APPLICATION OF THE LAW” because the Foresight addressed was the wrong foresight for consideration of Dolus Eventualis.

      It’s like the following:
      The judge finds that A is not guilty of murdering B, because while A was strangling B to death with his bare hands he lacked foresight that Mars was in Virgo and hence A obviously lacked foresight that his actions would kill B.

      ps: My intention is not to convince you or others of anything. My intention was to enter into a dialogue with you so that I can understand the reasoning behind your original comment. That’s all. At the present moment I don’t think your statement is correct because the foresight in question was the wrong foresight being considered by the Judge for Dolus Eventualis.

  14. DJ says:

    Last lot of thoughts:

    I hope if the state appeal’s they don’t try to argue direct intent was proven for the burglar as well, as was mentioned a few times in court, because that is relatively unsound. I have to agree with Masipa that direct intent is definitely not proven on the burglar version so there would have no grounds to protest that aspect. In fact it slightly doesn’t make sense based on the firing angles.

    Foresight of the possibility on the other hand is crystal clear.

    Although it’s not actually relevant to her findings in the summation read out in court, the question of the PPD is interesting as well: It’s clear that the line between attack and defence needs to be shifted from it’s normal position to accommodate the scenario. If it was a general precedent that one may shoot because of a sound at a person one suspects of posing a threat, it would be quite seismic in its implications. So it would have to be based on why in Oscar’s specific case and circumstances the line should be shifted, though not in general.

    I think that would be impossible to argue since the Weskoppies reports. Fully competent in respect of mental disorders, defects, and also (rather pointlessly investigated) fight/flight and vulnerability. Masipa herself also rejected all the personal factors which might mitigate cognition in his case.

    So that leave as the only option moving the line between attack and defence as a general precedent. It is now acceptable to defend yourself because you heard a sound, made by a random person whom you suspected of posing a threat to your safety. And also through locked doors.

    Surely other defendants will follow suit, have their cases struck down, appeal citing S v Pistorius 2014, and then the appeal courts will have a headache if there are no salient differences in facts, so at some point the Constitutional Court (?) will have to redefine things back to normal for good and always. So I don’t see Masipa can escape from the finding that this is too lenient in the longer term, as it will have to be stated in black and white, whether or not the prosecution appeals this specific case or not, it will surface again and again as a point of comparison in the future and someone is going to have to make it clear the lines cannot fall where they did in her ruling.

    In the meantime, a lot of paperwork to sort it out, and a higher probability of opportunistic crimes. Is it really worth going through the pain of that rather than sorting the issue out now. Someone needs to stop and reflect on what it all means and the resulting probabilities of more violence…

    Other than that, I absolutely think the decision was correct! 😉

  15. DJ says:

    Wonderful analysis. Please do share with Nel.

    I think as well it might be mentioned that Masipa’s error on “transferred malice” in relation to foresight being ruled out because he believed Steenkamp to be in the bedroom was lifted directly from proposed arguments in the defence heads, without any case law citations.

    She also asked them where they got it from and Roux didn’t give a clear reply – did he say “facts”?

    So it’s not actually her original mistake. It’s a line of reasoning that they proposed for her to use and Nel specifically contested it as a point of law saying “error in objecta is not a complicated legal issue”. However, despite that warning, she went ahead and resting conclusions on it.

    I agree that the 2nd day merely stating the legal definition correctly is not enough because she cannot state it was not proven “beyond a reasonable doubt” without providing at least some explanation as to how the foresight might be absent in relation to the intruder. Indeed, it seems pretty clear that if Pistorius lacked foresight given he passed gun tests, had no mental disorder or defect, even “superior functioning” at time of incident (Schultz), then if anything his competency should be above average when handling a gun, not below average, and his posture was proven as an outstretched arm with “sight alignment” which proves a measure of cognitive preparation to fire, in addition, he had time to reflect and uncocked the weapon, it is not in dispute he knew the person was in there, nor that the person was the cause of him firing at the person, from a distance of around 2m, and not once but 4 times, and she rejected that it was an involuntary action, so I really do not see that there is anything possible remaining that the prosecution could be asked to prove.

    Also it’s a gun – it’s a lethal weapon – the means suffices to establish intent ordinarily – and most definitely it ought to establish a measure of foresight.

    Put it this way: If that isn’t enough for “beyond reasonable doubt” that he DID have foresight, then it won’t be possible to convict anyone of murder ever again. Since her final statement was “Only he knows what was in his mind”.

    Is there ever going to be a defendant for whom that is not the ultimate conclusion of the matter so that the prosecution can never satisfy her standard of proof? Short of a confession.

    She must give some concrete reason why reasonable doubt remains, which involves supplying at least one reason that is correct. She didn’t give any reasons. So it cannot be said that there was “another reasonable possibility” as none was stated for the absence of foresight.

    Obviously that’s a factual finding but I think the prosecution could slip in the point that this standard of proof makes it impossible to convict people absent of confessions since we can never prove their thoughts i.e. you cannot rely solely on “only he knows what was in his mind”.

    Perhaps there’s another legal principle at work there, i’m sorry I don’t know the name of it if so, but I feel like proof requiring certain knowledge of the inner workings of another’s mind must be presumed too strict or the whole legal process would break down.

    Does that have a name, is it a specific principle, and can it be linked to her observation that “only he knows”?

    Final comment: Another legal error which I noticed is the law on “previous consistent evidence” which means his many statements “i thought she was an intruder” has no probative value, yet, this was cited as one of the reasons for finding his version to be more consistent with the circumstances.
    Similarly for the bail affidavit.

    This was another argument handed to her on a plate by the defence but presumably it’s usage as a probative instrument to test between the two versions before her creates another problem for her judgement?

  16. Sonia Takeda says:

    I just want to sign it up to read new comments.

  17. Sandy says:

    My sentiment exactly!

  18. Nkululeko says:

    Thenk you Sir, nice article, atleast somewhere some how it has assissted me.

  19. Carmen says:

    Professor Grant,

    You have such a strong grasp of South African law, my only question is in the interest of justice for Reeva Steenkamp and her parents, have you approached the National Prosecution Association with this information?

    While I’m sure they are a competent organization, I believe they would welcome any insight from someone like yourself on how to proceed with an appeal.

    I think this is an important matter.

    Thank you

    Vannyi

  20. namhla says:

    How did he not realise it was not someone after firing the first shot up to until he fired 4 shots if the other person was not attacking him back surely he might have had sreams of a lady because possible who ever he was shooting did not die at a shot that’s is why he kept firing and how did he know the person was actually behind the door if he did hear a voice behind the door.the person could could have been in position inside the bathroom.

  21. Jo says:

    According to this analysis it really is a travesty of justice. How could a judge get it so wrong? It’s negligent in my opinion. I think some of it must go to his celebrity status, his wealth and privilege as a white man and that violence against women is so pervasive in South Africa that people have become desensitized to it.

  22. JP says:

    “2. Notwithstanding the foresight, [did he then fire the shots, thereby reconciling himself] to the possibility that it could be the deceased in the toilet.”

    Your understanding of the law here is incorrect I believe (Case law: S v Ngubane). Whether he shot the gun or not is not what makes “reconciliation” a given. When the first part (1) is proven he is merely given the title of being reckless – whether he carried out the act of not. The definition of recklessness is mistaken a lot by the legal few as some believe recklessness is only given when the person foresees but doesn’t carry out the act. This is wrong. Recklessness is a given when point 1 of the test is proven, regardless if the act was carried out of not. Point 2 has to then separately be proven to have a conviction of dolus eventualis and this is done by the judge who has to subjectively look at the evidence and find anything that support the fact that he reconciled himself with the possible outcome (Timing, mental state during, events happening in quick recession and being unpredicted and sprung on him involuntarily (If going by his story), being scared and unable to think straight etc etc.).

    During the reading of her findings regarding murder the judge explicitly labelled Oscar as being “reckless”, so I believe she had found that part 1 of the test was proven, but not part 2.

    So in essence she defined dolus eventualis based on the SCA guidelines placed in S v Ngubane and this is where people are getting confused, nowhere else.

    I’m merely a law student, so I might be wrong, but when reading CR Snyman’s definition of Dolus Eventualis and compering it to what I was hearing, this is how I understood it all, I would love to hear if I’m going wrong somewhere. Plus I didn’t read all of this article or religiously follow the case, too tired most of the time to do that. 😛

    • DJ says:

      The article is talking about foresight in relation to error in objecta and transferred malice, upon which masipa rested reasoning. She indeed called his action reckless but that is a part of “eventualis” however the foresight is what she set aside as a “reasonable doubt”.

      There is something you might be interested in called the “irrisistible inference” which essentially links the “means” of an attack to the “inference” about the intent of the person carrying it out, rather easily.

      So if you shoot someone directly with a gun, then because you used a gun, there is an irrisistible inference to be drawn that you understand the potentially lethal consequences and in fact this foresight was present in your mind (as a normal, competent adult).

      Since we all understand what a gun does, you can hardly fail to miss that fact.

      There isn’t any good reason to believe it eluded Oscar either. If you tot up his circumstances there he had plenty of time to reflect before, prepared the weapon, put his arm in a firing posture in readiness, he wasn’t “sprung upon” since he merely heard a sound, he was extremely preoccupied with the person he shot for many moments before he shot them, and the gun was linked in his mind with defending himself against that person, therefore it is fairly incredible to claim the concept that he might wind up shooting that man and possibly causing a lethal effect did not occur.

      He clearly is saying he was in “fear of his life” and had “many many thoughts” before firing, it’s only at the critical moment he managed to launch an attack with a gun yet not perceive that the gun might kill the person he was attacking.

      It’s a very “unreasonable” doubt.

    • DJ says:

      It would make it impossible to prosecute murder in the event someone that is proven to have killed using a gun or a knife or whatever else claims they didn’t “think” that they might kill the person. So then all such homicides would be culpable ones, not murder.

      The prosecution proved him sober, competent in gun laws, and to have “superior functioning” with no mental incapacities at the time of the offense. This is enough to satisfy a court.

      Otherwise, the murder charge will have to be done away in general and replaced by a “recklessness” one since it will never be provable in the event someone denies they were thinking at the exact moment they fired.

      Much too lax!

  23. Robert Barry says:

    Earlier in her judgment Masipa J summarised OPs testimony with regard to his state of mind when he fired the shots. This included “I shot without thinking”; “I did not intend to shoot at anyone”. OP explains that he pulled the trigger out of fear when he thought that the intruder was coming out of the toilet cubicle to attack him.

    I wondered whether Misipa J based her finding on OPs testimony that he fired without thinking. The acts reus and the mens rea must normally be present at the same time. Could he be said to have (subjectively) foreseen the risk of killing the intruder if he shot without thinking?

    Of course the answer to this is that, having taken the gun to the bathroom, taken off the safety catch and pointed it at the toilet door preparing to shoot he had already foreseen the likelihood of killing whoever was behind the door – indeed that was the purpose of these acts.

  24. Mark S. says:

    INFERENCE OF SUBJECTIVE INTENT

    We are required to infer Pistorius’ subjective intent, but we have to do this by means of objective criteria.

    The objective fact is that he fired four aimed shots with hollow nosed bullets, all of which hit a person. From this we can only infer that his subjective intention was to kill that person. There is no other reasonable conclusion.

    He says that he made a mistake as to the identity of that person. He thought that there was an intruder, but it was actually Reeva. In other words an ‘error in persona’.

    We then have to consider a further question of subjective intent. Did he believe that he was lawfully entitled to kill the supposed intruder in self defense? (Putative private defence)

    He would only be entitled to do so if he was clearly in danger of death or serious harm. Objectively he was not, since there was in fact no intruder. He knew the law as to the circumstances in which he was entitled to fire on an intruder, because he had passed a written exam for a firearm licence which asked that question. He had also had time to consider his circumstances, since by his own account he advanced slowly and cautiously toward the bathroom holding his firearm in his hands. He said that he then heard a noise in the bathroom. Objectively this is not a sufficient reason for him to believe that his life was immanently in danger.

    We cannot reasonably infer that he thought he was lawfully entitled to kill the supposed intruder. Therefore his intentional killing of the supposed intruder was murder.

    This is not affected by the error in persona, according to SA law. If you intentionally kill A, thinking that you are killing B, it is still murder in law. The fact that it was Reeva in the bathroom, and not an intruder, is irrelevant, because killing an intruder would have been murder too.

    This was not considered or dealt with by Judge Masipa, and therefore there is a legal error in her judgement.

  25. Jack Sparo says:

    THE FACTS REMAIN THE SAME

    Hi Professor

    I understand and fully agree with you that the legal tests were incorrectly applied, but having watched the whole of Pistorius’ examination by Roux and cross-examination by Nel, it appears that there is no evidence that Pistorius subjectively thought that he may kill someone. It appears that he didn’t really think at all, hence being guilty of culpable homicide. It is for these reasons that I believe that, if the tests had been correctly applied, Judge Masipa would have come to the same conclusion. One could argue that his firing 4 shots, the positioning of them and his knowledge of the use of firearms points to the fact that he must have known that the person behind the door could have been killed, but I think that in light of his oral evidence, it would be a stretch to find him guilty under dolus eventualis.

    The tests may have been incorrectly applied, but the facts and what Oscar subjectively thought remain the same, and so I believe that the Judge would have arrived at the same conclusion even if the tests were applied correctly.

    • Ps says:

      this is referred to as luxuria – see CR Snyman

      where a person a person unreasonably decided that his action will not amount to a specific outcome.

      In solus eventually you reconcile yourself with the possibility of death band continue. In luxuria you so not reconcile with such possibility where you ought to have reasonably.

      luxuria does not allow you to escape the liability thus he would still be guilty of murder.
      to my understanding you say because he didn’t subjectively believe that the shots would result on death.

      thus it would still be murder

    • DJ says:

      If she took his “oral evidence” at face value she would reject the lot on account of contradictions. So it’s selective. She also found him to be “evasive” and a “very poor witness” who was “more concerned with the consequences, than with his answers”.

      She rejected his evidence that the firing was involuntary so was happy to make an inference that that part was not true. It should clearly default to the objective facts of shooting four bullets with time to think about the implications beforehand and knowledge of the person there, if for no other reason than safety in domestic settings.

      She should also be able to reject his claim to having no foresight he might kill since there is no reason to think this would not have occurred to him during the course of firing four bullets. It is inextricably linked with the concept of defending yourself using violence. No one can escape the implication from a gun to the possibility of death. Not without a very good reason. Why did Oscar get to escape that implication merely on “faith”, having rejected his claims to involuntary firing?

      And why did she say it is a matter of “conjecture” why he fired four times. He was right there, in a position to tell her. So why doesn’t she have the answer. A lot of Oscar’s answers were equivalent to “i don’t know”. But there is no reason for a diminished responsibility plea and he showed clear reasoning abilities before and after the shots. It’s all terribly lax in my opinion.

      Amazingly, she said it would be more “reasonable” if you shot your partner in silhouette in a darkened room. It wouldn’t even be culpable homicide then, since you had less time to think, so provided you admitted it and the police failed to refute your version that it was a mistake, based on your own “oral evidence”. Since your partner is no longer alive, she can’t.

      Isn’t the law supposed to keep us safe? Her formula doesn’t work.

      I can only find one concrete justification for it in terms of facts of the case, and it is the fact that the prosecution timeline is wrong, and Oscar cried – even had his cries turned against him as a mistaken evidence – and was publically seen to attempt life saving – albeit not in my opinion “promptly”. So the events after the first bangs became the “guarantor” of truthfulness for Oscar, to the greatest extent possible. Fair enough, the prosecution did get it wrong in that respect I believe. With the shot timing, and who was crying. It does look a lot more like an accident in that case. But it’s not really the end of the matter. It’s more that the precedents that are set in such a publicized trial – “four bullets + no other witnesses + serious contradictions” yet not murder – is really rather worrying.

      I believe due to misguided attempt to do the right think and to be unstintingly fair, that she has cosseted one man but at the cost of making many other people unsafe.

      It’s a good day to be a criminal when the standards of the law are eroded.

    • DJ says:

      P.S. Putative private defence is a attacking in an erroneous belief your life was in danger. She says it.

      You cannot dissociate the concept of possibly killing from the concept of attacking repeatedly with a GUN and really nothing Oscar claimed while being “evasive” should have changed that. But it did.

      He has normal adult abilities, is very familiar with guns, and everyone understands what firing a gun means. It’s infantile to believe someone that says otherwise.

    • DJ says:

      Last remark: An important aspect of the case which might have got him off the hook more than normal is shooting through a door. Most people would not take the “chance” to do that deliberately to kill someone because it is clearly extremely risky. Indeed, I don’t think there can ever have been an argument for careful premeditation because it would have been impossible to secure the means in a reliable way if you stopped to think. So the door became a shield against certain knowledge in my opinion.

      The explanation that four bullets is related to the difficulty of the door was not argued in court unfortunately.

      The problem is that Masipa didn’t really explain it like that since she said he might be LESS culpable if he had shot a “silhouette” figure in his bedroom. Which frankly anyone could say so there is an element of “murderer’s charter” in this ruling as well, and that’s another reason why the prosecution should probably appeal it to get it established as a common law murder if at all possible.

      If she sincerely believes it was an accident there would still have been scope to mitigate the sentence according to personal situation, but at least it would be more in line with gun laws, including laws on home defence, and with our expectations that someone must be persuasive in explaining why they launched violent attacks if they are the only witness.

      In the meantime: The case certainly keeps on giving in terms of legal debate.

    • MabhebezaEC__69 says:

      I have to agree with you here, & no other judge will see other wise!!

  26. Colin Hammonds says:

    Very interesting, obviously you are an expert in such matters, i’m afraid i’m not but even so i watched the court judgement and following this i made a statement on a forum discussing the subject “Let me put it another way, if you shoot someone four times killing them, it’s not murder because the intention to kill wasn’t proven, how does that sound ?”as you can see i was trying to be witty but put simply how can it not be murder even if it wasn’t the person intended who got shot ?

  27. michelelarkin2013 says:

    Dear sir,
    You overlook one crucial point! OP may well ( and I say “may” most pointedly), have had the intention to shoot in self defence, although it is disputable whether when it happened his action was totally thought through, but at no point is it suggested that he shot with the intention to kill. Had it been so, he would have emptied the gun and he would have shot all over the place leaving no room for error as he could not know for sure where the intruder was located. Instead, he instinctively pointed his gun at a height where the intruder might be neutralised, (below the waist) and when he heard a noise he reacted also instinctively by pulling the trigger in panic. He thought his life and Reeva’s were in imminent danger and did not really have a choice. Personally I find the judge’s verdict of CH extremely harsh when there had been precedents where the perpetrators did not even get charged after killing their loved ones by mistake.

    • taylors1 says:

      Michele, i think you are missing quite a few points. Firstly look at it this way, fact. Pistorius said he spoke with Reeva when getting his gun telling her to call the police but we know she was in the bath room so this can possibly be true and that should be the end of it but its not.
      Its true he couldn’t have know where the intruder was located and so fired randomly to make sure but he didnt. 4 grouped accurate shots suggesting he knew very well where the person was located as he knew who it was, Reeva. Also why only 4 shots, why not all of them like you suggest. It can mean only one thing he knew after the 4th shot that he didn’t need any more, they were already dead further suggesting he knew exactly who and where they were behind the door. You don’t point a gun to neutralise you fire it to kill and second to a head shot being shot in the midsection has a high probability of death any way.

      • kevjones2014 says:

        I think there is a huge misconception of Oscar’s firearm ability. It is very clear from the video of the watermelon incident that if you watch the entire clip, Oscar twice had to get the shotgun unjammed or reloaded by the instructor, the childish shoyt of glee when shooting the watermelon is not the actions of an experienced shooter. It sould like it was the first time he had ever shot anything. The mishandling of the firearm at Tashas all points to someone who did not appear to me to be competent in any way with a firearm. I even doubt that he considered that the bullets would actually penetrate the door. The grouping of the shots over that small distance was to put it bluntly dismal. If you are going to shoot someone through a door, which is stupid in the first place, and you really want to kill them you would shoot your four shots in a 2-4 inch grouping aimed at the chest area, not as he did at the waist and scattered all over. This is pure incompetence from a so called gun competent person.

      • Shopgirl says:

        taylor1 – you got it spot on!!!

    • Colin Hammonds says:

      The gun was pointed at a height where you would normally find someone sitting in a toilet. How can it even be considered that it was OP who was in danger when it was him who had the gun, i can not see anywhere a valid argument for self defense, put simply, defense from what ?

    • DJ says:

      The article is not discussing intention to kill (dolus directus). It is discussed “foresight of the possibility he might kill” (dolus eventualis). Pistorius was cleared of that one as well.

    • DJ says:

      You will not find any case where a person was not charged when there were no other witnesses to the death, or through locked door, or fired four times, let alone all three at once.

  28. Donna Morris says:

    ROLE OF CREDENTIALS IN DETERMINING LEGAL ACCOUNTABILITY

    You state:

    “These authorities make the valid point that one must be careful not to conclude that just because a reasonable person would forsee something (death of someone for our purposes), that the accused did. This is the usual and well founded caution against a logical error of thinking that just because something should be true, doesn’t make it true. Just because someone should have realised something doesn’t mean s/he did realise it.”

    Your post articulately explains complex legal principles to we in the lay public. Thank you.

    Your paragraph above perplexes me in that society sets and demands applicants meet certain standards in order to competently perform in certain arenas, law, medicine, and firearms possession and use in South Africa. If Oscar Pistorius met and passed required competence and knowledge levels, why is that not a factor in judging his behaviour? Panic and emotion are understood to compromise human behaviour, of course, but legal cases involving inadequate legal representation and incompetent medical treatment are heard in courtrooms and directly involve the competence level expected as a result of training and earned credentials. Why was/is it apparently not a factor for Pistorius and his earned firearm credentials, not only in Reeva’s death, but in the ammunition possession?

  29. Harriet says:

    Thank you for this brilliantly clear and detailed analysis. It’s (by a very long way) the best article on the judgment that I have read.

  30. Theroux says:

    Maybe she thinks it’s reasonably possible he believed the intruder was an animal.

    It really is getting that ridiculous.

    • DJ says:

      I really thought that would be their defence based on the bail affidavit!! 🙂

      At that time there was no admission of bathroom movements made by people. No window slide. No door slam. He arrived in the bathroom and there he ‘noticed’ the window was open and ‘realised’ the door was closed. The ‘movement’ could genuinely have been an animal.

      Magistrate Nair queried why he believed Reeva was in the bed and why he thought an intruder had entered the bathroom. Thereby the window slide. And since Reeva was the cause of that it was logically necessary to close the door at some point and Oscar heard that!

      If only he had heard the lock mechanism too, he would have realised he was safe from the burglars and none of this terrible accident could have happened…

      Oscar was careful to note that the intruder might have ‘kicked the door on his way out of the window’ or alternatively ‘climbed out of the tiny toilet window’ (onto another ladder).

      He can’t be accused of forgetting to mention all the possible sources of doubt as he narrated truthfully the tragic circumstances.

  31. HelenUK says:

    “ERROR IN PERSONA”

    Thank you for this. I have also read and commented on another blog where the writer believes that Judge Masipa did not err.

    (I am not a lawyer, just interested, as a lot of people are).

    I could very well be mistaken, but reading the other blog, the writer seems to be saying is that the error is fundamentally the States. They should have charged him with Eventualis, and not premeditated from the beginning.

    But I thought, in essence, they did. They charged him with “Murder” – the word “premeditation” appears nowhere in the charge read into the record. He was charged with the murder of a person, namely Reeva, and even if he got the wrong person (“error in persona”) it would still be murder.

    This seems to leave scope for a finding of Eventualis – it even accounts for it. I was always under the impression that the State were well aware that the evidence for him knowing it was Reeva was, perhaps, debatable – but they aimed high, in the knowledge that even if Directusndid not succeed, Eventualis very possibly would. But that’s just my unqualified take on it.

    The upshot for me is that, the other blogger, does not seem to have taken the actual charge into consideration. If he’d only be charged specifically with the murder of Reeva, tand found not guilty of that, then clearly not guilty is not guilty. But he was charged with the murder of a person….the person behind the toilet door that he acknowledges believing was there.

    Am I missing something fundamental?

    Thanks

    (Oh, and excuse any spelling mistakes. The Twitter Follow note is sitting slap bang in the middle of this comment box and won’t move….so I can’t see a lot of what I’m writing!)

    • nat says:

      PISTORIUS PROFFERED NO DEFENSE: MURDER
      Pistorius should have been convicted of murder as he proffered no legal defense. First, by his own admission, Pistorius stated that he did not intend to kill Reeva (or anyone for that matter). This takes away from him putative self defense as a possible defense. Similarly, involuntary action and mistake were not available to him considering the DETAILED, DELIBERATE AND CONSCIOUS steps he took prior to inflicting the fatal wounds on the deceased: he whispered to the deceased to call the police (but got no response), fetched his gun from the opposite side of the bed where the deceased was sleeping, cocked the gun and unlocked the safety catch, positioned himself outside the toilet door and fired four shots at waist level with a high calibre gun through the closed door of a toilet cubicle in which he knew his intended victim could not escape.

      • Colin Hammonds says:

        Yes, he says he thought the person in the WC was about to come out that’s why he fired, in that case why did he fire at the height and in the direction of someone sitting on the toilet seat ?

      • OSCAR PIISTORIUS MURDER TRIAL -APPARENT ERROR IN LAW BY JUDGE MASIPA – PROFESSOR JAMES GRANT.

        I am very impressed and grateful for the clear and concise arguments of Prof James Grant, whom we had the opportunity to get to know during the legal panel discussions at night, that followed the court happenings of the day.

        I also am not legally trained but with 40 years experience inf forensic medicine and pathology, more than 15000 medico-legal autopsies in my career and hundreds, if not thousands of court cases and trials that followed, I believe that I have reasonable understanding and insight of these matters.

        Under fierce cross-examination of Pistorius by the Prosecutor, Adv Nel, i became convinced that the accused knew what he was doing, that he fired four shots at the door to kill whoever was behind the door. I have not the slightest doubt that as an experienced gun user he undoubtedly, not could, but must have known and realized that whoever was behind the door would be killed.

        Fortunately it appears that the judge has made an error in law (and possibly in application of the law) and that the state now has the option and opportunity to appeal against the verdict by the judge and her assessors.

      • moira hewitt says:

        someone from the supreme high court needs to take control and state the way it must be to the general public.

      • DJ says:

        Great post, but a bizarre one as well – why are we even discussing why each of 2 defences is wrong? Since when does a defendant have 2 and that’s actually not prejudicial in itself.

        I am bowled over that this point was not explicitly addressed in the judgement. The clear allegation was made he has two and they mutually destruct one another. With extensive citations from the court record to back that up. And Barry Roux did nothing to dispel the impression since he clearly stated it was involuntary in his view, but if not, then the shots happened in self-defence.

        Yet no judicial reprimand.

        So that’s another wonderful precedent.

        An accused person can have involuntary defence inside a voluntary defence (as the backup) and it doesn’t prejudice them to assert both. The prosecution that has to show how both versions is not reasonably possible. The accused can rely on whichever of the two versions works best.

        Well in that case lets generalize it out a bit:
        – I wasn’t at the crime scene
        – If I was I acted in self-defence
        – If the bounds were exceeded, it was reflexive
        – and if that fails too, then my mind is unknowable to other humans, thus, my intention cannot be proven in any event.

        Four defences.

        You can assert contradictory propositions in your defence: and the onus is on the prosecution to dispense with each principle in turn, and if any of them can’t be rejected, then that’s the one the judge must accept. And if she can’t accept any of them, then the last one is there as a universal back-up to make prosecution impossible anyway.

        As in Masipa’s finding that: “Only Oscar knows what was in his mind.”

        The more one reflects, the more troubling it becomes in its implications.