Share

Why Judge Masipa was right

The decision by Judge Thokozile Masipa to find Oscar Pistorius not guilty of murder has reportedly shocked some members of the legal community, together with some media and political commentators. Consensus amongst many of the lawyers who have commented on the trial was that Pistorius could not be found guilty of premeditated murder but that he would be found guilty of murder based on the dolus eventualis facet of intention. That Masipa has not found Pistorius guilty in this regard, has been termed a material error which give the prosecution cause to appeal against the decision. Most of the criticism against the judge’s finding is wrong and is based on a lack of understanding of the nature of dolus eventualis. Dolus eventualis is one of the 3 different forms of intention.

For clarity’s sake, it is necessary to mention distinguish the difference between each of these. The first is direct intention, which simply means one had the intention to commit an act, and acted in accordance with this intention. The second is indirect intention, which means that one embarks on a course of action knowing that in order to achieve his or her aim, some harm may be suffered by someone else. For example, if John intending to kill his wife, who will be travelling in an aeroplane, plants a bomb in the aeroplane, he foresees and knows that his actions will in all probability lead to the death of other passengers, thus he will be guilty of murder. In other words, in order for John to achieve his aim to kill his wife, he foresees that it will be necessary or at least be a consequence that others will die.

Dolus eventualis on the other hand is a trickier concept to grasp. Judges and many lawyers continued to struggle with understanding its nature and elements. It is thus not suprising that some legal academics and practitioners have in my view wrongly criticised Masipa’s ruling.

The test for dolus eventualis can be divided into 3 legs. The first, is whether an accused foresaw the consequences of his actions. The second is whether he after foreseeing the consequences of his actions, persisted in his actions. The third is that the accused reconciled himself with possible consequences of his actions.

In Pistorius case, he would have had to foresee that by shooting through the door, he would kill a human being. Having foreseen this, he still decided to persist in shooting at the door and that he reconciled himself with the fact that he would very likely kill someone through his actions.

Masipa found that this was not the case and she is correct. While Pistorius is said to be a well-trained gun enthusiast, it does not follow that in the heat of the moment, anxious and scared, he had the time to reflect on the fact that he might kill someone through his actions. As the courts have warned before, a presiding officer must not be an arm chair critic, wise after the fact. It should be borne in mind that the question is not whether a reasonable person would have foreseen that shooting through that toilet door someone might be killed. The state had to prove beyond a reasonable doubt that Pistorius foresaw that he might kill someone. They failed to do so. They evidence put before the court suggested that Pistorius foresaw that he might need to use his gun to defend himself, but it did not necessarily prove that he intended to use it to kill someone. In other words, one can use a gun to injure or scare an accused. There was no evidence that proves beyond a reasonable doubt that when Pistorius walked down the corridor, approaching the toilet door, he intended to kill. It is easy for a lay person to draw that conclusion, and indeed to strongly infer that this was probably his intention, but that will not be enough to prove guilt beyond a reasonable doubt. When one moves to assess whether Pistorius having foreseen that he might kill someone, reconciled himself with this possibility, the state’s case also falls short.

Gerrie Nel did not show that Pistorius accepted that in shooting through the door he could kill and that this didn’t deter him for going ahead and firing the four shots anyway. As Barry Roux rightly pointed, the case of S v Humphreys, shows that the element of reconciliation can be difficult to comprehend. In that case, the court stated that the element of reconciliation meant that the accused must have consciously taken the possible consequences of his actions into the bargain, before proceeding with his action. There was no evidence that Pistorius wanted to kill and that he accepted that his actions could or would constitute murder. Given the emotional state of Pistorius, the fact he was anxious and scared, that he did not know what was behind the door and who or what might attack him, his almost split second decision to fire the shots, show that there is a possibility that he did not have enough time to reflect on what may be the consequences of his actions, let alone accept this possibility and decide to act regardless. It is possible that Pistorius may have indeed foreseen the consequences but still decided to act, but it remains just that, a possibility, maybe even a strong possibility if not probability. However, this still does not constitute proof beyond a reasonable doubt.

It is impossible to mention all of the specific criticism against Masipa’s ruling, but I venture to deal with one, mentioned by Eusebius McKaiser, who claims that Masipa’s conclusion that because Pistorius thought Reeva Steenkamp was in bed, it was proof that he did not intend to kill anyone.

In law, as McKaiser correctly notes, it does not matter for the purposes of murder, that you killed John whilst intending to kill Phillip. However that does not mean that the fact that Pistorius thought Steenkamp was in bed, is completely irrelevant in deciding what his intentions that night may have been. Firstly, it must be borne in mind that Nel built his whole case around the theory of an argument that had culminated in Steenkamp fleeing to the toilet in order to hide from a raging Pistorius. Once the court had found that theory to be without foundation, it was left only with Pistorius’ version that he approached to bathroom door to confront the perceived danger and not to shoot and kill Steenkamp. Nel advanced no theory or substantial evidence to rebut the fact that when Pistorius said he wanted to confront the perceived danger, he in fact meant he wanted to kill the perceived intruder. Firing four shots at the door, was not in itself evidence beyond a reasonable doubt that when Pistorius picked up his gun and went toward the toilet door, he had intended to kill the perceived intruder. Pistorius defence was putative self-defence. Pistorius said he shot to try and defend himself, he did not say he shot to kill lawfully. If Pistorius had admitted that he had shot to kill but that he thought he was acting lawfully in so doing in that he thought he was defending himself that would have been a different matter. Ultimately, the state’s case was weak from the onset, and as Roux rightly noted during closing argument, Pistorius should have been charged with Culpable Homicide, an offence which he has been found guilty. Instead, Nel peharps too ambitiously and reckelessly went for the jugular, even going to the extent of adding the other charges which were unnecessary and where meant to try and prop up his case on the main charge. Unfortunately for the state and perhaps fortunately for Pistorius, justice has been done.

The author is a graduate student in faculty of law of Rhodes University, and writes in his personal capacity
We live in a world where facts and fiction get blurred
Who we choose to trust can have a profound impact on our lives. Join thousands of devoted South Africans who look to News24 to bring them news they can trust every day. As we celebrate 25 years, become a News24 subscriber as we strive to keep you informed, inspired and empowered.
Join News24 today
heading
description
username
Show Comments ()
Voting Booth
Do you think corruption-accused National Assembly Speaker Nosiviwe Mapisa-Nqakula will survive a motion of no confidence against her?
Please select an option Oops! Something went wrong, please try again later.
Results
No, her days are numbered
41% - 584 votes
Yes, the ANC caucus will protect her
59% - 825 votes
Vote
Rand - Dollar
18.89
+0.2%
Rand - Pound
23.87
+0.1%
Rand - Euro
20.39
+0.2%
Rand - Aus dollar
12.33
+0.1%
Rand - Yen
0.12
+0.1%
Platinum
908.05
0.0%
Palladium
1,014.94
0.0%
Gold
2,232.75
-0.0%
Silver
24.95
-0.1%
Brent Crude
87.00
+1.8%
Top 40
68,346
0.0%
All Share
74,536
0.0%
Resource 10
57,251
0.0%
Industrial 25
103,936
0.0%
Financial 15
16,502
0.0%
All JSE data delayed by at least 15 minutes Iress logo
Editorial feedback and complaints

Contact the public editor with feedback for our journalists, complaints, queries or suggestions about articles on News24.

LEARN MORE