Pretoria - Judge Thokozile Masipa misinterpreted the law, provided a lenient sentence without properly weighing up the facts and a new court needs to re-examine Oscar Pistorius’ criminal case.
These were prosecutor Gerrie Nel's key arguments on Tuesday morning in the State's attempt to appeal the athlete's culpable homicide conviction and pursue a harsher sentence.
Pistorius was sentenced to five years in prison for shooting and killing his girlfriend, model Reeva Steenkamp.
He was also sentenced to three years with five suspended for a separate incident where he accidentally discharged a firearm in an upmarket restaurant.
However, the athlete could be released from prison on parole and kept under house arrest by the middle of next year.
When the State filed papers for Tuesday's appeal, they said that the five-year sentence was “shockingly light and inappropriate”. The State is seeking a harsher sentence and potentially altering the culpable homicide conviction to one of murder.
Meanwhile, Pistorius’ defence team has argued that Judge Thokozile Masipa was correct in finding that the athlete believed he was shooting an intruder without intention to kill the person perceived to be a threat.
“It is irrelevant whether or not another court may disagree with the factual findings made by the trial court,” Pistorius’ legal team wrote in their appeal papers.
Roux said that Masipa, who will decide whether another court should re-examine the case, should also take note of the fact that Steenkamp's parents said they were “satisfied” with the culpable homicide conviction.
Various media reports suggested that South Africa's legal fraternity was divided on whether Masipa's ruling was appropriate.
On Tuesday morning, Nel told the court that it was an exception for the State to bring such an appeal.
He argued, however, that the court did not provide the correct weighting to the consequences for such an inappropriate act.
He said the State's main argument was that the court found that Pistorius was grossly negligent - almost bordering on dolus eventualis - and such a ruling could set a precedent of light sentences for less negligent cases.
Nel said it wasn't his job to convince the court the sentence was inappropriately light, just that there's a reasonable prospect the court of appeal could see things differently.
He said it was irrelevant that the Steenkamp family was satisfied with the sentencing and this should not have an effect on whether the State has a right to appeal.
The court also did not give enough weight to the total dismantling of Pistorius’ defence team's claims that local prisons could not properly look after a disabled person like the athlete, argued Nel.
He also insisted that too much mercy was shown for Pistorius, who clearly knew how to operate a firearm and whose negligence robbed Steenkamp of her life.
“The element of mercy (in the sentencing) was over-exaggerated,” said Nel.
He said the court had imposed the shortest period of incarceration possible.
Nel then suggested the court had not taken into account all of the circumstantial evidence presented by the State as a whole rather than in isolation.
He said a retrial would not be necessary if the appeal court found there was an error in the law, unlike the “State vs Seekoei” matter - a complex case from 1982 which suggested a competent ruling can not be appealed.
Nel said the State was appealing Pistorius’ murder acquittal, and not the conviction of culpable homicide, meaning the Seekoei legislation did not apply.
He said the appeal bid focuses on “a question of the law” rather than the facts of the case, even though the defence has attempted to argue the judge's finding was based entirely on facts and thus can't be appealed.
Nel also said the court had misapplied the concept of dolus eventualis or indirect intention as Pistorius had criminal intent despite not intending the result of his actions.
He asked how someone trained with firearms, and who knew the size of the toilet cubicle where Steenkamp was standing, could fire on such a space without realising what could happen.
Even though the court had discarded large chunks of Pistorius' version, Nel argued that it incorrectly believed the athlete when he said he didn't intend to kill.
According to the prosecutor, Pistorius should be found guilty of murder because he should have accepted that firing through the door could have killed someone.
He then returned to the circumstantial evidence, such as the state of Pistorius' bedroom, that Nel argued was indicative Pistorius had lied, rendering his version of events totally untrue.
The Star