Oscar Pistorius conviction: Explaining the law behind it

By Editorial Board - 4 December 2015 at 1:30 pm


JOHANNESBURG (AP) — The heart of the murder case against Oscar Pistorius has relied on a section of South African criminal law known by the Latin term of dolus eventualis. The Supremes Court of Appeal decided Thursday that a lower court’s reading of that was faulty and overturned its manslaughter conviction against the athlete, convicting him of murder.



It was never disputed that Pistorius killed his girlfriend Reeva Steenkamp in the early hours of Valentine’s Day in 2013. What was uncertain, however, was whether he meant to do it.

Under South African law, a murder conviction hinges on the offender’s intention to kill, according to South African criminal law expert Mannie Witz. Without intention, the killing is ruled as manslaughter, or culpable homicide as it is known in South Africa.

Pistorius’ lawyers argued that he shot in self-defense, painting the picture of a scared amputee negligently firing at an unidentified intruder. The prosecution tried to depict Pistorius as an angry boyfriend who intentionally shot his model-girlfriend as she cowered behind a toilet door.

Judge Thokozile Masipa convicted him of culpable homicide, or negligent killing, but acquitted him of murder. In acquitting Pistorius of murder, Masipa ruled that Pistorius could not have anticipated that someone might die before he shot four times through a door into a toilet cubicle, killing Steenkamp.



In overturning the trial ruling, Supreme Court of Appeal Justice Lorimer Eric Leach unpacked exactly how the court interprets dolus eventualis. To prove dolus, the state had to prove that the perpetrator committed the act that led to the victim’s death with the intention to kill. Under South African law, there are two forms of dolus — directus and eventualis. Simpler to understand, directus describes the direct intention to kill.

The principle of eventualis rests on the idea that the perpetrator may have foreseen that someone would be killed by their actions, and went ahead.

That’s the chance Pistorius took when he fired hollow bullets — designed to fragment on impact — from a 9mm pistol through the door of a “very small” toilet cubicle, Leach said. Under this principle, the identity of the victim should not matter, the judge said.

“I have no doubt that in firing the fatal shots the accused must have foreseen and therefore did foresee that whoever was behind the toilet door might die, but reconciled himself to that event occurring and gambled with the person’s life,” said Leach.



Now found guilty of murder, Pistorius faces a minimum sentence of 15 years in prison and a maximum sentence of 20 years as a first time offender, said Witz. Under exceptional circumstances at the discretion of the judge, possibly including his time served and his disability, Pistorius could receive a lesser sentence than the minimum.

For now, as he awaits a harsher sentence in line with his new conviction, Pistorius will remain under house arrest.

Under the manslaughter conviction, Pistorius was sentenced to five years in jail. According to South African law, an offender sentenced to five years or less may be released to correctional supervision after serving one-sixth of the term in prison. After less than a year, under cover of darkness and without public notice, Pistorius was transferred from his prison cell in the medical ward of a Pretoria prison to his uncle’s lavish home — a red-bricked house with landscaped lawns in an affluent suburb.



Ruling that a retrial is unnecessary, the Supreme Court of Appeal sent the case back to the trial court in South Africa’s capital Pretoria for sentencing. No date has been given for this new sentencing ruling. Masipa, who presided over the trial, must now study the Supreme Court’s ruling and hand down a new sentence, Witz said.

Pistorius can appeal to South Africa’s highest court, the Constitutional Court, but only if he is able to prove that his constitutional right to a fair trial was infringed during the highly publicized hearing, said Witz.

“I think it really comes to an end now,” said Witz.

The Pistorius family released a statement saying their lawyers would study the judgment.

LYNSEY CHUTEL, Associated Press

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Editorial Board

Editorial Board

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