Pretoria -
Word on the street is North Gauteng Judge Thokozile Masipa made an “error in law” in not convicting Oscar Pistorius of murder.
While commentators, ranging from senior counsel to street vendors, are saying the judge and her assessors made a mistake, the National Prosecuting Authority said it will wait for sentencing before considering its options.
Speaking to the media on Friday shortly after the Blade Runner’s conviction on culpable homicide, NPA spokesman Nathi Mncube said they respected the judgment which was handed down, but were disappointed by the outcome.
“Of course we are disappointed that we did not secure a conviction on premeditated murder and that there was an acquittal on the other charges. But we are satisfied at this point that the court has played its role.”
Mncube said it was too early to say whether they would appeal.
He said the NPA believed it had a case for premeditated murder, but accepted the court’s findings for now.
A senior advocate, who cannot be named for ethical reasons, agrees with this. “I think the State has a good chance to secure a murder verdict on appeal,” he said.
This is if the State can convince a court during leave to appeal that the judge made an error in law when she applied legal principles in coming to her finding.
According to the advocate, the State cannot appeal an error in fact.
“The general feeling is that the judge erred in her approach to the legal question of whether he was guilty or not on the doctrine of dolus eventualis (that he had to foresee the possibility that he could kill someone).”
The State will have to wait until the conclusion of these proceedings before it can apply for leave to appeal. “I think if it is granted, the matter will go before the Appeal Court in Bloemfontein, as there will be various important questions in law which will have to be determined. This will include whether the judge applied the principles of dolus eventualis,” the expert said.
The Supreme Court of Appeal court will only evaluate the issues on the record of the proceedings before it and on legal arguments. If it is found that there was an error in law and the verdict should have been murder, the appeal court will refer the matter back to the trial court, but only for resentencing.
The expert said the law did not provide for a retrial and Pistorius won’t have to testify again about the events of that morning.
Sentencing proceedings would have to start afresh, as they would have to be based on the (possible) new conviction of murder.
Mechanical engineer, Sibusiso Langa, who killed five joggers when he ploughed into them with his car received a 12-year jail sentence nine months ago following a conviction of culpable homicide.
Hip hop artist Jub Jub Maarohanye received an effective 20-year jail sentence two years ago for a drag racing incident which left four children dead in Soweto. He and his co-accused, Themba Tshabalala, were convicted of murder, but he wants the appeal court to commute it to culpable homicide.
The advocate explained that Jub Jub’s case cannot be compared to that of Pistorius.
“In the Pistorius trial, mainly circumstantial evidence was presented. The judge, in evaluating this, found the State did not prove beyond reasonable doubt that he was guilty of murder.
“In the Jub Jub case direct evidence by eye witnesses were presented to the court.”
Pretoria News Weekend