Tshwane - Was Oscar Pistorius’s conviction on culpable homicide an error in law and his subsequent five year-jail term – of which he has to serve at least 10 months – far too lenient?
These issues will come under the spotlight on Tuesday when the National Prosecuting Authority will ask Judge Thokozile Masipa for leave to appeal her verdict and sentence.
Pistorius has spent a month-and-a-half serving his sentence at the Kgosi Mampuru II Prison in Pretoria.
If things go the athlete’s way, this may be his first and last Christmas behind bars.
The Paralympian was sentenced in terms of an act according to which he may be released on correctional supervision after serving 10 months of his five-year jail term.
If the State had its way, Pistorius would have been convicted of murder and serving at least 10 years imprisonment.
Prosecutor Gerrie Nel, in papers filed at the High Court in Pretoria, said he will ask for leave to appeal on questions in law against the verdict.
The only way in which the State can appeal in terms of the Criminal Procedure Act against a decision of a trial court, is if there is a question of law. The State may not appeal against an incorrect factual finding by a trial judge.
Nel also feels that the sentence handed down to the athlete is shockingly light and that on appeal, Pistorius will be dealt with far more harshly.
But legal experts are divided on the issue as to whether Judge Masipa will grant leave to the prosecution to take the matter to the Appeal Court in Bloemfontein.
One of the country’s top criminal advocates, Johann Engelbrecht SC, said the State’s prospects are bleak.
According to him, Judge Masipa cannot be faulted on her verdict and subsequent sentencing.
“Chances that the judge will grant leave to appeal is in my opinion very slim.
“I thinks she interpreted the law correctly and what the State wants to appeal are matters of fact. I cannot see a matter of law anywhere here.”
Engelbrecht is also not convinced that that another court will interfere with the sentence.
“A court on appeal will not easily interfere with a sentence, unless it is shockingly inappropriate.
“I don’t see any irregularity here. In fact I think it was a fair sentence.”
But city lawyer Konrad Rontgen thinks that Judge Masipa will grant leave to appeal the conviction and sentence.
“The test is whether another court may come to a different finding. In this case I think there may be a possibility that things may change on appeal.”
Rontgen added that while the roll of the appeal court is usually very congested and a case takes months before it is heard, a preferential date may be set to hear the Pistorius appeal (if granted).
But if the State fails in its bid, it will not be the end of the road for Nel.
The prosecutor can petition the appeal court directly for leave to appeal.
It is unlikely that Pistorius will be at court on Tuesday, as he does not need to be present.
The proceedings will consist of legal arguments and it is uncertain whether the judge will deliver her judgment immediately.
Engelbrecht meanwhile explained that if things remain unchanged and Pistorius was a model prisoner for the next 10 months, his chances of having the rest of his sentence commuted into correctional supervision by August are good.
But Judge Masipa will have the last word.
“The discretion whether to recommend a sentence be commuted into correctional supervision (mostly house arrest) lies with the commissioner of prisons.
If he is satisfied that Oscar has rehabilitated himself he can refer the matter back to the court.”
Engelbrecht said the commissioner will make his recommendations to the judge after receiving input from psychologists, experts and other people interacting with Pistorius.
The judge will then study the reports and recommendations, and after hearing arguments by the State and the defence, decide whether Pistorius should be released or not.
Pretoria News