Johannesburg - A number of legal experts have called Judge Thokozile Masipa’s ruling on the dolus eventualis aspect of the murder charge surprising and off kilter. But even those who agree with her judgment have said it’s a near certainty the State will appeal.
Intention is necessary for a guilty verdict and dolus eventualis is a type of intention. It describes a situation in which a person should have foreseen the possibility that a person could be killed as a result of their actions, but went ahead with their actions regardless.
The State argued that just because Pistorius killed the wrong person, he couldn’t use that as a defence. The small bathroom, the four shots, the Black Talon ammunition. He intended to kill.
“To release him on dolus eventualis was quite stunning,” said legal commentator David Dadic.
He said instead of making her decision based on objective facts such as the size of the small toilet and the bullets he used, which would imply a forseeability of the result of his actions, Judge Masipa seemed to use Pistorius’s reactions after the shooting, his crying and emotions, as a basis for believing that he had no intention to kill.
Attorney Ulrich Roux agreed.
“Regardless of Reeva or an intruder, Oscar still had the intention to kill the person (behind the door),” he said.
“She also criticised his version severely, but then at the end of the day she says she accepts his version,” said Roux.
“I find it difficult to reconcile that she calls him a bad witness, but at the same time is happy to accept he had no intent to shoot or kill,” said Dadic.
But Kelly Phelps, senior lecturer in the public law department at UCT, complimented Judge Masipa on the level of care and attention she had given, not only in issuing the judgment, but in coming to it.
“Clearly, she had pored over this vast record… She has managed to remain so unswayed by all the white noise around this matter,” said Phelps.
She said she completely disagreed with the insinuation that Judge Masipa was incorrect. “Yes it was quite clear he had the intention to shoot at whatever or whoever was making the noise behind the toilet door. The one thing he didn’t foresee was a possibility that anyone who was in the toilet could be Reeva Steenkamp.”
Phelps said this was not the trial for the murder of just anyone, it was the trial for the murder of Steenkamp.
“The problem for the State is the one thing he in his mind was sure of. Was that Reeva was in the bedroom?
“It’s clear that that’s what he genuinely believed and therefore had no intention (to kill Steenkamp).
“But a reasonable person would have checked where she was, a reasonable person would have known who was in the bathroom.”
Phelps said this was the basis on which a culpable homicide guilty verdict could be tendered.
The Star