Judge Masipa got it wrong

Eusebius McKaiser says Oscar Pistorius could have foreseen that shooting through a door four times could have killed somebody.

Johannesburg - Oscar Pistorius should have been found guilty of murder. The court, however, declared him not guilty of murder. That was the key finding delivered on Thursday by Judge Masipa in a trial in which the state had accused the Paralympic star of murdering his girlfriend, Reeva Steenkamp.

Oscar Pistorius reacts in the dock during the verdict in his murder trial on Thursday. Picture: Kim Ludbrook. Credit: EPA

Pistorius was sobbing again, but it appeared his tears came from a well of distress rather than joy or relief. That's misplaced, frankly, because he should be overjoyed that Judge Masipa had made a mistake.

She did not apply the law to the facts correctly. She should have found Pistorius guilty of murder but instead offered unconvincing legal justification why she decided not to.

It's not worth analysing in granular detail whether Pistorius is guilty of premeditated murder. A brief description will suffice.

Judge Masipa gave a cogent summary of the shoddy work of the state in setting up its case for the charge of the premeditated murder of Steenkamp.

Advocate Gerrie Nel did not prove beyond reasonable doubt that Pistorius had the direct intention to kill Steenkamp unlawfully.

Weak circumstantial evidence of a possible quarrel is a long way from amounting to a proven timeline or chronology of events that ended in the direct intent, on the part of Pistorius, to kill his lover unlawfully.

A history of WhatsApp messages is even more frivolous 'evidence'. And too many witnesses were unconvincing too.

So although Judge Masipa surprised us with the speed with which she adjudicated on evidence and witnesses it's difficult to see legal mistakes in her analysis of why premeditated murder had not been proven beyond reasonable doubt.

That, unfortunately, is where the praise for sound legal reasoning must end. Unlike in many other jurisdictions around the world, you can also be found guilty of murder in South Africa if you could have forseen that your action that you performed could kill someone, but you still performed that action, in effect reconciling yourself with the eventual outcome - death - that will result from your action.

That is what is meant by that pretentious piece of Latin doing the rounds, 'dolus eventualis'. So if Pistorius did not kill Steenkamp as a result of premeditated, unlawful action, it doesn't yet follow in law that he is not guilty of murder.

In between premeditated murder and culpable homicide - which rests on proving the negligent killing of a person - we have two other murder categories in our law: indirectly intending to kill someone (and doing so) or foreseeing you would kill someone and reconciling yourself to that outcome (and then doing so).

We can set aside the idea of 'indirect intent'. It's not at issue in this case. It refers to a case in which, say, I walk into a packed restaurant and I intent to kill my lover and so I shoot at her. She is sitting with her friends and I fatally injure not her but her friend next to her. That kind of scenario is not at play in the Pistorius case.

The nub of the issue today is that 'dolus eventualis' business. And that's where Judge Masipa got it wrong.

Could Pistorius have forseen that shooting at the bathroom door four times would kill someone behind the door? Yes. Did he, knowing that, refrain from shooting? No.

Did he shoot only once, maybe accidentally, such that we might say it's reasonably possibly true he did not reconcile himself to killing the person behind the door? No, he fired four shots, not in rapid succession either, and while controlling the firearm.

He didn't suffer an epileptic seizure that can be described as a loss of voluntary control over your body. Things didn't happen to his body. He acted. Deliberately, intentionally with a view to landing bullets in the body of a person behind that door. All of this by his own testimony and in light of the evidence of shots fired, the number of shots fired and time lapses between each one. He should therefore have been found guilty of murder.

It is a textbook case of dolus eventualis and if this was a criminal law exam Judge Masipa would barely pass: she stated the law correctly (though even this is a generous description since she failed to flesh it out in adequate detail appropriate for such a complex case) but then hopelessly failed to apply the legal standard accurately to the evidence before her, including the testimony of Pistorius himself.

So why did Judge Masipa, you might wonder, think the requirements of dolus eventualis was not met? Here it gets embarrassing I'm afraid. This test in law is a subjective one. We have to ask what Pistorius was thinking. Pistorius told us he thought Steenkamp was asleep in bed. Judge Masipa believes him and takes this as proof that Pistorius did not desire the death of someone behind that bathroom door.

But that is blatantly a misapplication of the law. Who cares if Pistorius sincerely believed Steenkamp was in the bedroom fast asleep? The question is whether he foresaw any human being behind that door - Xolani or Piet or Marita or nameless intruder - dying if he were to shoot at them through that door four times? So it's not legally relevant that Pistorius genuinely didn't think Steenkamp was in the bathroom. The murder charge holds so long as he believed SOMEONE was there, foresaw that four shots in that direction could kill them and reconciled himself to that outcome. And he did.

It gets worse: Pistorius' defence is that he intentionally shot at the door to neutralise a perceived threat. He just didn't think his voluntary shooting was unlawful. But by the standards of dolus eventualis, properly applied, he committed murder in South African law.

Nel can start filing his appeal papers. His prospects are surely good. Judge Masipa won't be the last judge to have a verdict overturned.