Oscar Pistorius appeared especially anxious in the dock on Tuesday at the prospect of spending the next 30 days at a state mental institution.
North Gauteng High Court Judge Thokozile Masipa was to rule on Wednesday whether the Blade Runner should be sent for psychiatric observation.
This follows an application by prosecutor Gerrie Nel, arguing that, given the diagnosis of general anxiety disorder (GAD) by defence psychiatrist Dr Merryl Vorster, the court was obliged to refer Pistorius for observation.
Vorster said GAD may have played a role in Pistorius’s actions when he shot Reeva Steenkamp in the early hours of Valentine’s Day last year. She testified that GAD was a psychiatric disorder but denied it was a mental illness.
This disorder, coupled with Pistorius’s physical disability, could have influenced the way he acted that night, she said. Nel argued that if it was claimed Pistorius had diminished responsibility, he should be referred for evaluation, as stipulated by the Criminal Procedure Act.
Vorster had diagnosed Pistorius with GAD and said it could have a direct bearing on his actions, Nel argued.
GAD is listed in the DSM5, a manual of mental disorders. Nel said if it was claimed that an accused, by virtue of possible mental illness, might not be held criminally responsible for his actions, the court had no choice but to send him for observation. Nel questioned the defence’s timing in calling Vorster – after Pistorius had testified – and wondered if it was a defence “fall-back”.
Pistorius seemed to have produced three defences for his actions – putative self-defence, that he acted automatically when he pulled the trigger, and now that GAD could have played a role, Nel said.
“The fact that he changed his defence should let red lights go on… We will argue (at the end of all the evidence) that he was not the most impressive witness, nor that GAD played a role.”
But, Nel added, if there was a possibility that the athlete had diminished criminal responsibility, he had to be sent for evaluation. The court was also entitled to know what Pistorius’s defence was.
Citing case law, Nel said the Supreme Court of Appeal in many cases referred accused for mental observation, and this could be done at any stage. By calling Vorster, the defence had opened itself up for his application, Nel said.
Defence advocate Barry Roux said the application was a ploy by Nel for the court to assist the State in obtaining a second opinion (on Pistorius’s mental health).
Vorster had never said Pistorius’s condition had affected his ability to act, Roux said. She only wanted the court to take it into consideration in evaluating all the facts.
Roux argued it was never a question of Pistorius being paranoid or delusional when he heard noises in his house. He said he heard the bathroom window open, and it was open. He heard someone in the toilet, and the door was closed, Roux said.
There was no merit in Nel’s application. It was premature as the next defence witness would testify about Pistorius’s physical vulnerability and the “fight” or “flight” principle, where some people facing danger opt either to fight or flee.
Roux said Nel could then bring his application if he so wished, but many aspects would be cleared up with the next witness. “We should leave emotions out of this and look at the facts,” Roux argued.