Did Judge Masipa get it oh so wrong?

First Published in Bona, January 2015

Last year’s trial of Oscar Pistorious for the murder of his girlfriend Reeva Steenkamp left us all with many questions.

Many of these questions related to the what exactly happened that fateful night on Valentine’s Day 2013 when South African Olympian, Oscar, shot four bullets into the door of the small bathroom of his Tshwane home, that model and upcoming TV personality Reeva was in.

But perhaps the biggest question of the trial has been about the judgement and sentence that judge Thokozile Masipa handed down to the paraplegic athlete.

Judge Masipa found Oscar not guilty of murder, but guilty of culpable homicide (which if you like those legal TV shows is also known as “manslaughter”) and guilty of recklessly using his gun.

To be clear, Murder, in law, is when someone deliberately kills someone else, meaning there was an intention or even a plan to kill them. Culpable Homicide is when someone unintentionally causes someone else’s death – like reversing into someone you can’t see and their dying from that. This distinction is the big difference between Oscar getting the 5 year prison sentence which he did, and not 25 years or even life imprisonment!

So the big question in the courtroom was did Oscar willfully kill, or rather, murder, his girlfriend that night. Judge Masipa determined that Oscar had not.

Different legal experts have different views on whether the judgment made by Judge Masipa was correct or not. All of these views are very technical, and not just based on the gut feeling that you and I have. In fact, the Judge was meant to suspend her feelings and also be careful not to let media sentiment sway her judgement.

Now, as each of the charges that the Prosecution laid was an accusation by the state of a crime that Oscar had committed, they had to prove that he had indeed committed those crimes. The state prosecutors, led by Advocate Gerrie Nel, had to prove beyond reasonable doubt that Oscar was indeed guilty of these crimes. This means that there must be no doubt whatsoever left in the mind of the judge.

The defense team would therefore work very hard to cast doubt on the case and evidence that the state prosecutors produces, and even if Oscar’s version of events was false, as long as they have managed to raise doubt in the version of events that the Prosecution they have done their work well. The defense, led by Advocate Johan Roux, did a good job of portraying Oscar’s state of mind to be one terrified by the threat of an intruder, which is who he said he thought was in the bathroom, after a life lived feeling vulnerable and a mother who instilled a sense of fear of crime in him.

Ultimately the judge asked the question: “could Oscar have reasonably foreseen that Reeva was behind the bathroom door?”

If not, then he obviously could not have foreseen that he would kill her by firing his weapon at whoever was in the bathroom.

Whilst the State tried to prove that he had premeditated her murder, the Judge found that most of the evidence they put forth to support this claim, like a fight over Whatsapp – something we’ve all done – were circumstantial, meaning they don’t prove intent to kill, they just prove Oscar and Reeva had a fight.

So if he didn’t intend killing her, or whoever was behind the door, could he have not forseen that whoever he shot his four hollow tip bullets at could die? He was a trained marksman after all. Here is where the big phrase of the trial comes into it – dolus eventualis murder. That’s where you don’t intend to kill someone but can reasonably assume that someone would die by your act, like swinging an axe in a crowded room, and still go ahead anyway.

Judge Masipa surprised many by suggesting that Oscar could not forsee causing death. For this charge, he actually has to have forseen death, not just injuries. Presumably she thought Oscar thought he would only wound whoever was in the bathroom. Again, this speaks about Oscar’s state of mind at the time.

Whilst some legal commentators have agreed that this interpretation by Judge Masipa is correct in terms of the law which can be very technical, others such as Constitutional Law Professor Pierre de Vos, have pointed out that while the Judge’s reasons for agreeing that Oscar could not have foreseen he would kill Reeva – such as his distress at her death, they aren’t good enough reasons not to convict him for the dolus eventualis murder of someone, anyone, standing behind the door.

It is on this basis that the prosecution late last year decided to appeal the verdict, meaning they want the entire case reviewed. Ironically the person who will decide if the case can be reviewed – no new evidence or witnesses, just a review of the facts in law – will be Judge Masipa herself.

In all of the this new ensuing drama around the Judge it would be easy to question her own judgement, that would be a mistake. Judge Masipa in 1998 became the second black women appointed to the High Court, this after nearly a decade of practice. And she isn’t a softy either, in one case she gave a rapist a 252-year prison sentence and she gave a life-imprisonment sentence to a policeman who’d killed his wife in an argument.

So? Fede, what happened here?

Some analysis believe that the nub of the Prosecution’s case was too focused on Oscar’s intention to kill Reeva, whereas they should have simply focused on that fact that Oscar had know he would kill whoever is in the bathroom.

Only time will tell if in round two of this case, the Appeal’s process, they get that right, as in their own words, ultimately it’s not about the feathers, its about the weight of the pillow.

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