Pretoria - It is clear from Oscar Pistorius’ submissions to the Constitutional Court that his application is based on questions of fact, in the disguised form of Constitutional issues.
This is according to the prosecution, which on Thursday filed its opposing papers in the paralympian’s latest bid to approach the highest court in the country to appeal his prison sentence for the murder of his girlfriend Reeva Steenkamp.
A senior State advocate attached to the office of the Director of Public Prosecutions (DPP) in Pretoria, David Broughton in an affidavit said the mandate of the ConCourt is to rule on Constitutional matters and not criminal matters where a person merely disagreed with the sentence meted out to him.
Pistorius last month turned to the ConCourt as his final chance to try and get out of the 13 year and five month jail sentence meted out to him by the Supreme Court of Appeal in Bloemfontein.
A full court of the SCA at the end of last year explained that Pistorius should have been sentenced to the mandatory 15 years by Gauteng High Court, Pretoria, Judge Thokozile Masipa, but the SCA took into account that he had already served 12 months in prison previously and that he was out on seven months correctional supervision, which included house arrest.
If this is taken into account, Pistorius did effectively receive a 15 year jail sentence.
His lawyer Shawn van Heerden, earlier said in an affidavit that Pistorius is of the opinion that the SCA judgment ignored material factual findings of Judge Masipa - which found there to be mitigating circumstances justifying a departure from the prescribed minimum sentence of 15 years for murder.
Oscar feels that the sentence is not permissible and in breach of his Constitutional right to a fair trial.
Van Heerden said he is aware that the ConCourt did not usually grant leave to appeal against sentence unless the appeal raised raises fair trial issues that may result in the failure of justice.
“However, as this application reveals, this is precisely what has occurred in this case,” he said.
But Broughton said this was simply not a case where constitutional issues were at play. He also disagreed that Oscar did not get a fair hearing before the SCA and stated that Oscar’s application was simply based on a disagreement with the SCA’s assessment of the facts of his case.
He pointed out that the ConCourt previously made it clear that a disagreement with a court’s assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.
That court said in another case that unless there is some separate constitutional issue raised, no Constitutional right is engaged when an appellant mere disputes the findings of fact made by the SCA.
“If a court rejects evidence on questions of fact, that can hardly be a Constitutional matter to be decided by this court….it cannot be construed as a violation of the accused’s right to a fair trial,” Broughton said.
He added that if this were to be the case, it would open the floodgates to other accused who were upset with the outcome of their criminal trials.
Broughton said the ConCourt was there to consider issues which were of importance to, or implicated on a large section of the public.
“It must be in the interest of justice for such issue to be entertained by this court…”
He submitted that there are no reasonable prospects that the ConCourt will reverse or alter the decision of the SCA. “It is thus not in the interest of justice that the appeal should be granted,” he said.
Pistorius' first hurdle is to obtain leave to appeal his latest sentence from the ConCourt.
His lawyer, in his papers, said Pistorius was confident that he had a very good case to argue.
He said this case raised issues of substantial and compelling circumstances (mitigating circumstances) - issues which frequently arose during criminal trials.
He said the ConCourt should for once and for all provide clarity as to how these issues should be approached in future.
“This would be to the ultimate benefit of accused persons, the State and the public at large,” van Heerden said.
No date has yet been set for the ConCourt hearing.