Oscar could be in jail for Christmas

By ZELDA VENTER Time of article published Dec 4, 2015

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Pretoria - The new year will bring no joy for Oscar Pistorius, as he is facing a possible 15-year jail sentence.

The athlete’s future not only looks bleak - it is also uncertain at this stage whether he will be spending Christmas at home or whether he will have to return to jail awaiting a new sentence.

On Thursday, the Supreme Court of Appeal (SCA) overturned his conviction on culpable homicide and found him guilty of murder on the doctrine of dolus eventualis. Judge Eric Leach ruled that trial court Judge Thokozile Masipa had to resentence Pistorius.

This news came exactly six weeks after Pistorius was released after serving a year in jail of his five-year sentence for culpable homicide. He was due to serve the remainder of his sentence under house arrest at his Uncle Arnold’s Waterkloof mansion.

But there is a chance that he may in the meantime have to return to his tiny prison cell.

Oscar verdict: what the experts say

National Prosecution Authority (NPA) spokesman Luyuyo Mfaku said the NPA could not at this stage say whether Pistorius would meanwhile have to return to jail or not. “The NPA is studying the order and will engage with other stakeholders as to the way forward.”

It is also not clear when Pistorius will return to the high court in Pretoria to be resentenced. Mfaku said a date would have to be arranged in conjunction with Judge Masipa and the registrar of the court.

Senior advocate and acting judge Francois Botes said the only certainty at this stage was that Pistorius would return to prison.

“In terms of our law, the starting point is 15 years in jail for murder on the doctrine of dolus eventualis. It could be less if the court finds there are compelling circumstances warranting a lesser sentence.”

Pistorius could be back in court in February, as soon as the new term starts, he said. “The court will in all probability handle this case as a priority.”

Botes said this was basically the end of the road for Pistorius, as his only further option was to appeal to the Constitutional Court. “But there is no constitutional point to appeal. It is a well reasoned judgment.”

Should Pistorius want to turn to the Constitutional Court, Botes said, he could only do so after he was sentenced for murder.

Read: ‘Reeva must be smiling’

Pistorius family spokeswoman Anneliese Burgess said: “We have taken note of the judgment. The legal team will study the findings and we will be guided by them in terms of options.”

The family will not be commenting any further.

Five judges of the SCA unanimously found that Judge Masipa incorrectly applied the principles of dolus eventualis in concluding Pistorius was guilty of culpable homicide. Dolus eventualis arises if the perpetrator foresees the risk of death, but nevertheless continues to act, appreciating death may occur.

Judge Leach said the trial court’s consideration of dolus eventualis centred on whether Pistorius knew the person he shot on Valentine’s Day 2013 in the toilet cubicle of his Silver Woods home in Pretoria East, was his girlfriend Reeva Steenkamp.

Judge Masipa concluded dolus eventualis had not been proved, as Pistorius thought Steenkamp was in the bedroom. He thus did not foresee she was the person in the toilet. She ruled him not guilty of murder, as he could not foresee he would kill Steenkamp.

“At issue is not whether he had foreseen Reeva might be in the cubicle when he fired the fatal shots, but whether there was a person behind the door who might possibly be killed by his actions,” Judge Leach said.

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