OMPHITLHETSE MOOKI, KRISTEN VAN SCHIE and BOTHO MOLOSANKWE
“For the purpose of this application, at this point in time, I will consider this an offence listed under schedule 6.”
As magistrate Desmond Nair said this, Oscar Pistorius placed his hands over his head and cried bitterly at the realisation that he has to defend premeditated murder charges.
His defence team had tried to sway Nair from heeding the State’s call to prosecute in line with schedule 6 – which carries a heavier sentence – instead of schedule 5.
“The issue is whether the charge the accused is facing may be categorised under schedule 5 or 6 of the (Criminal Procedure) Act. Now this is of crucial importance when it comes to the outcome of the bail application itself because, depending on the schedule that I find applicable, the onus on the accused differs.
“If I find it is 6 – that is murder when it was planned or premeditated – I must order that the accused is held in custody until he is dealt with in the law until he adduces evidence that satisfies the court that exceptional circumstances exist that warrant his release.
“If I find it is an offence listed in schedule 5 of the CPA (Criminal Procedure Act) – murder as opposed to premeditated murder – it carries with it the potential to invoke provisions of a minimum sentence legislation at the stage (an) accused is convicted.”
Having considered the State’s argument, Nair then ruled: “If you look into these statements in totality, one cannot escape the conclusion that there was some level of premeditation or planning”.
These (statements / facts) are:
Nair also read out points raised by prosecutor Gerrie Nel:
The magistrate then ruled that the offence would be listed under schedule 6.