Johannesburg - Public opinion is divided on whether disgraced Paralympian Oscar Pistorius, who is out of jail under correctional supervision, should face a higher charge of murder and be returned to prison.
On Tuesday, five judges of the Supreme Court of Appeal (SCA) in Bloemfontein reserved judgment in the matter and it is not certain when it will be concluded.
Pistorius was convicted of culpable homicide for the killing of his then model girlfriend Reeva Steenkamp on Valentine’s Day in 2013 after apparently mistaking her for an intruder at his luxury Silver Lakes, Pretoria, home.
The State’s star witness, forensic expert Chris Mangena, had testified in the trial before Judge Thokozile Masipa how Pistorius fired four shots in succession as Steenkamp sat cowering behind the toilet door.
At the centre of the row is whether Pistorius could have foreseen the death of the person behind the toilet door when he unleashed the volley of shots.
The issue of the Blade Runner’s innocence on that fateful day has spilled outside the corridors of court, with one faction calling for the charge of culpable homicide to stay and others claiming he is guilty of murdering his then 29-year-old girlfriend.
A contest of wits ensued again this week when State advocate Gerrie Nel and his opposite number, Barry Roux, argued their case before SCA Judge President Lex Mpati and four of his colleagues.
According to Roux, Pistorius believed his life was in danger and, given his state of mind at the time and the fact that he was not very mobile on his stumps, he fired into the toilet door.
The SCA will have to decide if Judge Masipa made factual errors in her finding.
A storm erupted when the athlete was due for release from the Kgosi Mampuru II prison in September.
He was finally released to live at his uncle’s Waterkloof home under strict bail conditions until he finishes his 5-year sentence.
If he is convicted of murder, as the State argues, he could be facing at least 15 years in jail.
But his fate won’t be decided until the SCA makes its decision.
Professor Stephen Tuscon, who teaches criminal law and procedure at Wits University, says the appeal court judges gave the State a very sympathetic hearing.
For this reason “it is possible they could change the conviction from culpable homicide to murder”.
But he says there are technicalities involved around whether the SCA has the power to change the verdict or return the matter to the high court for retrial. “The consensus of opinion seems to suggest that the SCA has the power to change the verdict,” Tuscon says.
Asked if the SCA will necessarily send the matter back to Judge Masipa or any other high court judge, Tucson says: “There are two options. If they say there was an error and order a new trial, it will go to any other judge but a re-sentencing… will go back to Judge Masipa.”
- The Sunday Independent