Judge Thokozile Masipas interpretation of the law around murder has baffled most observers. Photo: Alon Skuy, Pool
Judge Thokozile Masipas interpretation of the law around murder has baffled most observers. Photo: Alon Skuy, Pool

Masipa ‘got it wrong in law’

By FIONA FORDE Time of article published Sep 14, 2014

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Pretoria - Lawyers were this weekend struggling to put a favourable construction on the verdict in the Oscar Pistorius trial that acquitted the athlete of murder on Friday following a six-month trial.

Although the 27-year-old was found guilty of culpable homicide for the death of Reeva Steenkamp and now awaits sentencing, it is Judge Thokozile Masipa’s interpretation of the law around murder that has baffled most observers.

Pistorius fatally killed his girlfriend in his Pretoria home on Valentine’s Day last year and has insisted ever since that he mistook his girlfriend for a burglar. However, the State charged him with premeditated murder when the trial began last March.

The vast majority of the legal fraternity who have been keenly following the high-profile trial agree that the State failed to make a compelling case, but they are nonetheless adamant that the prosecution satisfied the legal requirements for a conviction of second-degree murder, or murder dolus eventualis.

“Our law is very clear on the matter,” explains prominent criminal lawyer Ulrich Roux of BDK Attorneys. “When the test of dolus eventualis is applied, the question that is asked is whether the accused could have foreseen the possibility that his actions would have resulted in death, yet was reckless to that possibility when he proceeded to shoot.”

“The answer has to be ‘no’,” Judge Masipa ruled.

But if Pistorius didn’t foresee death as a possible consequence, then what did he foresee? The athlete is a competent gun user and was shooting from a sophisticated pistol loaded with “black talon” bullets, which are designed to have a maximum impact.

This wasn’t a novice gun user who picked up a gun for the first time and shot wildly in a state of panic. The Paralympian focused his aim on a narrow toilet door behind which was lurking a person, and then pumped the bullets into it in quick succession.

“I have yet to meet a lawyer or legal expert who doesn’t see it that way,” Roux adds. “From the evidence, it is clear that Pistorius knew there was a real possibility that he would kill whoever was behind that door. It’s a form of indirect intention, and this is murder dolus eventualis.”

Masipa, however, appears to have focused her interpretation of the law on the fact that the athlete didn’t knowingly kill Steenkamp, while the law clearly refers to the death of a person, any person, and not necessarily the person identified in a charge sheet. It is on this key point that she is likely to come in for some ferocious criticism over the next few days.

Is it possible Masipa didn’t have the courage to convict the celebrity athlete, and left that job to an appeal judge instead? Her views of the star witness were certainly strong, and it appeared at one stage as she read out her ruling that she would reach a different verdict.

She harshly criticised Pistorius’s performance while on the stand, describing him as a “poor witness”, labelling him “evasive”, but then cautioned that untruthfulness does not necessarily mean guilt.

It was an odd comment, considering that the judge clearly believed Pistorius’s version of events to acquit him of murder dolus eventualis.

But, bearing in mind that he had proffered not one, but three, different versions of events while he was on that stand a few months ago, it would be interesting to know which version Masipa actually believed.

The State could yet decide to take the verdict on appeal on the grounds that Judge Masipa erred in her interpretation of the law, and there have been many legal opinions leaning that way over the past 48 hours.

“There are exceptional circumstances where the State is entitled to appeal on questions of law and sentencing. From my reading of it, this would certainly appear to be an error of law that would give the state the green light to appeal,” Wits Law Professor, James Grant, has argued.

Although it is rumoured that the State will appeal, the official line from the National Prosecuting Authority is that it will await sentencing before deciding on its next steps.

Given that Masipa’s high court judgment legally binds the regional and magistrate’s courts in Gauteng, a province notorious for its high murder rates, to follow the precedent she has set, is the state not actually obliged to appeal?

“So much for transparency,” grunted one member of the judiciary on Saturday in reference to the very public nature of this trial, which has been televised from the outset to ensure justice was seen to be done.

“Now the world will really see the challenges that are weighing on our legal system.”

Perhaps it is too early to be so harsh, though. Only the sentencing in October will determine the true reputation of Masipa, whom the media packaged over the past few months as a crusader against violence and murder when it came to her harsh judgments and sentencing.

Sunday Independent

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