This Case Commentary is written by Rofiat Oyenpemi, a Second-Year Law Student of of University Of Lagos, Nigeria

Court: Gauteng Division of the High Court of South Africa in Pretoria

Court of Appeal: Supreme Court of Appeal

Citation: CCC113/2013

Date of final judgement: 6th July, 2016

Judge: HONOURABLE MS JUSTICE THOKOZILE MASIPA

Case type: Criminal Wrong

Parties : Prosecutor on behalf of the state: GERRIE NEL

OSCAR LEONARD CARL PISTORIUS( The accused)

Abstract:

In Director of Public Prosecutions, Gauteng v Pistorius (2016), the Supreme Court of Appeal of South Africa overturned the trial court's verdict, convicting Oscar Pistorius of murder instead of culpable homicide. This landmark case scrutinized the principles of dolus eventualis and the boundaries of intention in South African law.

INTRODUCTION

Oscar Pistorius (the accused) was born with congenital deformities, leading to bilateral below-knee amputations before his first birthday. Despite this, he excelled in sports at school. This knee injury introduced him to biokinetics, which sparked his athletic career building him not just locally but internationally. Pistorius earned a University of Pretoria sports bursary and dominated international disabled and able-bodied events, winning Paralympic gold medals. He challenged the International Athletic Federation's prosthetic leg restrictions and successfully competed in the 2012 Olympic and Paralympic Games for South Africa. Internationally known, he met Miss Reeva Steenkamp (the deceased) on 4th November, 2012 at a mutual friend lunch at motor track-day event. They kicked off their relationship the same night where the deceased accompanied him to the South African Sports Awards function.

Three months into the relationship, on the day of the incident, Reevahas slept over at the accused house on the 13th February, 2013 but the crime did not ocur till the early hours of the morning on valentine's day.

The judgement of Oscar Pistorious was rendered on the grounds of the following facts.

According to the accused, he had woken up in the early hours of the morning and has spoken to the deceased before leaving the bed to put off the fans he left turned on in the sitting room. On his way back to the bedroom, he claimed he heard the bathroom window opening up. In fear that an intruder was trying to get into the house, he sprung to action going into the bedroom to grab his 9mm pistol from his bed. The accused claimed that as he did this he whispered to Reeva ‘’get down and call the police.” Just as he went back through the passage to face the intruder, Oscar Pistorius claimed that he was without his prosthetic legs at that and didn't bother to put it on in fear that with time the intruder would get into the house. Overcome with fear, he screamed and shouted, warning the intruder to leave and instructing Reeva to get down and call the police. As he approached the bathroom entrance, he ceased shouting, fearful of revealing his location. Upon hearing the toilet door slam, he froze. The bathroom layout consisted of a shower cubicle and toilet cubicle, the latter with an external window, positioned adjacent to each other. The toilet cubicle was tiny, with a door, and situated near a triangular built-in corner bath to the left of the entrance. Once he opened up the bathroom door, Oscar claimed no one was in the bathroom, however, the toilet door was closed. The accused claimed he heard a noise from the toilet which he proceeded to shoot 4 times. Deciding that the threat had been neutralised, the accused went back into the room to meet his girlfriend and did not find her there that was when he realized that she might have been the assumed intruder he shot in the toilet. He tried opening the toilet door but he couldn't open it, he tried using a cricket bat to break the toilet door down, he also couldn't. Then he saw the key to the door on the floor and he opened the door to confirm his fears.

Oscar Pistorius initially checked for breathing, thinking he detected a faint sign of life. Overcome with distress, Pistorius pulled Reeva into the bathroom and then desperately sought assistance. He made a series of urgent calls: to Mr. Stander at 3:19 am, Netcare 911's emergency number at 3:20 am, and the estate's security at 3:21 am. Following these calls, Pistorius carried Reeva downstairs, where he was confronted by the grim reality of the situation and the arrival of help, including Mr. Stander and Dr. Stipp.

Issues raised with the facts presented in the Oscar Pistorious case

The main issue raised in The state v. Oscar Pistorious was-if the defendant is guilty of murder or culpable homicide. Though the case was proved to be in defence of putative

private defence- implies rational but mistaken thought. Also, The court examined whether Oscar Pistorius acted with “dolus eventualis” (intentional recklessness) when firing the fatal shots. Considering all evidence, the court concluded that Pistorius must have foreseen the possibility of killing whoever was behind the door. By firing shots regardless, he accepted the risk of causing death. This demonstrated “dolus eventualis”, as he knowingly took the risk, regardless of the victim's identity.

ARGUMENT FROM THE DEFENDANT

The defendant pointed that he had no knowledge of his girlfriend's presence in the bathroom. If he has he wouldn't have shot the gun. However, when he realized that it was his girlfriend that was behind the door, he did try to save her life by using a cricket bat to try to open the door. He also reinstated that he called the emergency line in hopes that she would be saved.

ARGUMENT FROM THE PROSECUTION

The prosecution argued that he accused knew exactly what he was doing and based on the noise and screams the neighbors heard coming from the accused house before the gunshots, he must have fought with her and she went into the toilet to protect herself. This was because the accused claimed to have shouted and called out for her. If he did shout, why didn't she reply for him to know where she was? The prosecution also asked the accused to justify the irrational behavior of thinking it was an intruder even before confirming, or why he thought to shoot immediately, specifically four times. The accused could not justify this reasoning.

Rules, Laws and Principles used in The state v. Pistorious.

Laws

Under section 324 of the CPA, referred to in section 322(4), which debated the difference between murder and culpable homicide.

The prosecution, however, argued that while the accused may claim not to know who was behind the door, murder still remains murder as long as the accused had the intention to shoot to kill.

While the accused was convicted of culpable homicide in the trial court, the prosecution appealed the case in terms of not being satisfied with the judgement.

However, when the prosecutor of the state appealed the judgement of the trial court, the decision to appeal was cross-checked by section 319 of the CPA. That section provides:

(1) If any question of law arises on the trial in a superior court of any person

for any offence, that court may of its own motion or at the request either of the prosecutor or the accused reserve that question for the consideration of the Appellate Division, and thereupon the first-mentioned

court shall state the question reserved and shall direct that it be specially

entered in the record and that a copy thereof be transmitted to the registrar of the Appellate Division.

(2) The grounds upon which any objection to an indictment is taken shall,

South Africa cases referred to/Approved as case laws/judicial precedents for The state v. Oscar Pistorious.

Magmoed v Janse van Rensburg and others [1993] 4 All SA 175

(1993 (1) SACR 67) (A)–Discussed and Approved

Minister of Safety and Security and others v Craig and others [2009] JOL 24239

(2011 (1) SACR 469) (SCA) – Referred to

Nkosi v S (20727/14) [2015] ZASCA 125

(22 September 2015) – Referred to

R v Dhlumayo [1948] 2 All SA 566 (1948 (2) SA 677) (A) – Referred to

R v Gani and others [1957] 2 All SA 236

(1957 (2) SA 212) (A) – Referred to

R v Solomons [1959] 2 All SA 466 (1959 (2) SA 352) (A) – Referred to

S v Basson 2004 (6) BCLR 620

(2004 (1) SACR 285) (CC) – Referred to

S v Basson 2005 (12) BCLR 1192

(2007 (1) SACR 566) (CC) – Applied

S v Bogaards 2012 (12) BCLR 1261

(2013 (1) SACR 1) (CC) – Referred to

S v Crossberg [2008] 3 All SA 329

(2008 (2) SACR 317) (SCA) Referred to

S v De Oliveira [1993] 2 All SA 415

(1993 (2) SACR 59) (A) – Approved

S v Dlodlo [1966] 2 All SA 467

(1966 (2) SA 401) (A) – Referred to

The Judgement

In September 2014, Oscar Pistorious was charged with Culpable homicide by the High Court of South Africa in Pretoria. He was given five years Imprisonment and began serving his sentence in October 2014. Subsequently, he was transferred to house arrest in October 2016 after serving a year sentence. However, he was charged with murder on an appeal sentence by the supreme Court of Appeal which changed his sentence to 6 years. The court of appeal named the accused ‘’a very poor witness', this is because the accused words kept changing as depicted by the former trial where he claimed to have shot without thinking by using the words like ‘’before I knew it’, at some point he said, he wasn't sure if someone was in the toilet after which he changed his words to being forced to shoot by the noise made in the toilet.

Due to the inconsistency in the accused story and the motion made by the prosecution, the judgement of the supreme Court of appeal convicted Oscar Pistorious of Murder and not culpable homicide. Though the prosecution pushed for 15 years Imprisonment, in November, 2017, his sentence was increased to 13 years 5 months.

References

All South African Law Reports February 2016 [2016] 1 All SA 346 (SCA)

https://www.inderscienceonline.com/doi/10.1504/IJTPL.2017.085234

https://www.saflii.org/za/cases/ZAGPPHC/2014/793.html

https://www.google.com/amp/s/www.bbc.com/news/world-africa-67885713.amp