Pretoria - The day of reckoning has arrived for “Blade Runner” Oscar Pistorius.
Six months after the trial started in March, North Gauteng High Court Judge Thokozile Masipa will begin handing down her judgement. She will start on Thursday but is only expected to deliver her verdict on Friday.
The judge has had to weigh-up the evidence presented by the 18 witnesses on behalf of the State, against the 16 who testified for the defence.
This, together with the legal arguments presented by prosecutor Gerrie Nel and defence advocate Barry Roux will form the basis of her judgment.
Criminal justice expert at the University of Pretoria Professor Annette van der Merwe said the two assessors – advocates Jeanette Henzen and Themba Mazibuko – will play a vital role at this stage of the proceedings.
“They decide together with the judge on the verdict. The majority decision is the final decision,” she said, adding that, in case of a conviction, the judge can decide to include the pair in the sentencing decision.
In order for the court to convict Pistorius of the murder of his girlfriend Reeva Steenkamp on Valentine’s Day last year, there must be a finding that he had the intention (dolus) to unlawfully commit the murder. This is the conscious wrongdoing while knowing that such conduct is, or might be, a crime.
Van der Merwe explained intention can take various forms, such as dolus directus (direct intention) or dolus eventualis (which requires subjective foresight of the possibility of conducting oneself unlawfully). “It is thus a subjective test, determined according to what was actually in the accused’s mind at the time of the unlawful conduct.”
Van der Merwe said factors such as who the accused was as a person at the time, taking into account his fears, beliefs and individual characteristics, also play a vital role.
If there is a finding of negligent killing, the verdict will be culpable homicide.
The judge can come to this finding, even though Pistorius is facing a charge of murder.
This test is determined by means of the standard of the reasonable person.
This is in the case of the accused not subjectively foreseeing the possibility of conducting himself unlawfully, but ought to have foreseen it, as a reasonable person in the same position would have.
Van der Merwe said there is no prescribed sentence for culpable homicide, as it is at the discretion of the judge. It can vary from a suspended sentence to several years of imprisonment.
In the case of a conviction on murder, the prescribed minimum sentence is 15 years, but this may vary depending on the mitigating and aggravating factors. If guilty of premeditated murder, the prescribed sentence is life imprisonment, depending on whether or not there are substantial and compelling reasons to deviate from this.
Van der Merwe said the judge will, in coming to her verdict, determine whether the State has proved its case of murder beyond reasonable doubt.
“All the elements of murder have to be proven – namely the intentional, unlawful killing of another person.
“Also whether Pistorius’s defence is reasonably, possibly true.”
“This will be judged holistically. Attention will be paid to, among others, the probabilities, improbabilities, the reliability and credibility of witnesses and circumstantial evidence.”
Van der Merwe said the latter is very important in this case, as there were no direct eyewitnesses to the event.
“The issue here is that a person was killed, no matter who (Pistorius) thought hid behind the door.
“His possible mistake about the object of his act does not exclude his intention to kill the person behind the door.
“The motive behind the act is immaterial in determining whether he acted with intention.
“A good motive may, at most, influence the degree of punishment.”
Van der Merwe said in the case of a conviction, the judge had the power to extend Pistorius’s bail until sentence is imposed.
She is of the opinion that, in case of a conviction, the case will be postponed for a few weeks for both sides to obtain further expert and impact reports regarding sentencing.
Pretoria News