Oscar Pistorius reacts as he listens to State prosecutor Gerrie Nel summarise his evidence. Picture: Werner Beukes
Oscar Pistorius reacts as he listens to State prosecutor Gerrie Nel summarise his evidence. Picture: Werner Beukes

‘Nel strong, but it’s only half the picture’

By THERESA TAYLOR Time of article published Aug 8, 2014

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Johannesburg - The baton of truth has been dropped, and Oscar Pistorius can’t finish the race without it.

That was the sports-themed metaphor prosecutor Gerrie Nel strung through his closing arguments on Thursday.

It was arguably Nel’s strongest day in court, but it’s only half the race, with advocate Barry Roux no doubt charging to the finish line in his client’s defence on Friday.

Nel picked up themes that have been crucial to the State’s case – the blame game he claims Pistorius played to avoid responsibility and the defence’s apparent number of different explanations.

“(Nel) was very strong, but of course it’s only half the picture,” said Kelly Phelps, a senior lecturer in the public law department at UCT.

“We can only really evaluate how well he did in the event once we have compared and contrasted with the defence.”

Phelps said that while Nel would focus on the minute details, because he needed to prove that his case was the only possible version of what happened that evening, Roux could go straight for the jugular, touching on larger issues, as he didn’t have this burden of proof.

Professor James Grant, of the Wits School of Law, said Nel rightly focused on what has been a “shopping spree” of defences by Pistorius and his team.

“(Pistorius’s) story was changing, and this can’t be good. Why would an accused person be unsure of what actually happened?” said Grant.

The defence originally appeared to be leaning towards putative self-defence, which means you act under the incorrect belief that there is an intruder in the house.

But Nel said the defence had now listed their first defence as non-pathological incapacity.

This links to the evidence of defence witness Professor Wayne Derman on the fight-or-flight response, meaning you lacked the cognition and the ability for self-control at the time of the incident.

Both Grant and Phelps agreed their biggest concern with Nel’s arguments was in relation to the State’s alternative murder charge – that if the court believed it was not Reeva Steenkamp he intended to kill, it should still find him guilty of intending to murder whoever was in the bathroom.

Grant said that while Nel focused on intention, he didn’t focus on the unlawfulness of the killing.

Not all killings are unlawful, and if Pistorius’s defence of putative self-defence was successful, it may mean that even if he knew someone would die, he wasn’t acting outside the law.

“The biggest problem that arises for me, ultimately, if you consider Oscar Pistorius’s original defence, he believed he was entitled to kill,” said Grant.

Grant pointed out that mistaking the law is a defence in South Africa.

He said that if the judge was left with a reasonable doubt that Pistorius was under a misunderstanding of the circumstances he was in or the law, he would have a valid defence. The judge would then have to acquit him of murder.

Grant said he thought there would be a lot of things Roux would need to explain away, particularly the screams of a woman that neighbours claimed they had heard.

Phelps said Roux had already started touching on important issues, including police mismanagement and bringing in the phone records, which could prove crucial.

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