Eusebius McKaiser

Eusebius McKaiser

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

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 foreseen 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 recon-