by Mandy Wiener
Ironically, it was Dr Stipp, who the defence had spent much time trying to discredit, who proved to be their most valuable asset. Masipa accepted Stipp’s evidence as an independent witness, who had described Oscar’s emotional distress, that Oscar ‘looked genuinely distraught as he prayed to God and pleaded with him to help save the deceased’.
‘It follows that the accused’s erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder (dolus eventualis),’ Masipa ruled. Oscar heaved, mucus streaming down his face.
BREAKING #OscarPistorius NOT GUILTY of Murder (dolus eventualis)
‘That, however, is not the end of the matter as culpable homicide is a competent verdict,’ Masipa said, before breaking for lunch. Although culpable homicide is still a serious crime with a potential maximum 15-year jail term, the relief in the Pistorius camp was palpable.
Oscar spent some time huddled in the dock, Carl and Aimee clustered around him, their arms interlinked as they prayed. The poignant moment was broken when attorney Brian Webber walked over and slapped Oscar twice on the arm – his relief evident.
In the lunch break that followed, journalists were all a bit shell-shocked and a storm of confusion broke on social media, with legal experts called in to help explain the nuances of what had just happened.
The confusion was fuelled by a delay in Judge Masipa’s return. Roux and Nel both disappeared into her chambers, the prosecutor with a thick purple legal textbook under one arm. They were accompanied by Darren Fresco’s advocate Riaan Louw, possibly there to address Masipa on Fresco’s indemnity from prosecution.
When Masipa returned to her seat, it was to hand down her ruling on culpable homicide and it took a mere 13 minutes.
Culpable homicide refers to ‘negligence’, so Masipa would have had to decide whether she thought Oscar was negligent or not. For this Masipa had to apply the reasonable person test.
The defence had argued that Oscar’s disability had rendered him vulnerable and that someone in his circumstances and with his ability could not be found guilty. Masipa did not agree. ‘Vulnerability is not unique, as millions of people could easily fit into that category,’ she pointed out.
She said there were several other options open to Oscar for him deal with the danger. He could have picked up his cellphone to call security or the police; he could have run to the balcony and screamed as he did after the shooting; there was no reason why he couldn’t do so before he ventured into the bathroom with a loaded firearm – calling security and running to the balcony would probably have taken as much time if not less than it had taken to go to the bathroom and discharge those four shots. ‘It is also significant that at the time that he heard the window slide open, he was nearer to the balcony than to the bathroom,’ she added.
The defence had also argued that growing up in a crime-riddled environment and in a home where his mother was paranoid and always carried a firearm, placed Oscar in a unique category of people. ‘I agree that the conduct of the accused may be better understood by looking at his background; however, the explanation of the conduct of the accused is just that, an explanation. It does not excuse the conduct of the accused. Many other people have experienced violent crime and have not resorted to sleeping with firearms under their pillows,’ Masipa dismissed the argument.
‘If the accused, for example, had awoken in the middle of the night and in darkness saw a silhouette hovering next to his bed and had in a panic grabbed his firearm and shot at that figure only to find that it was the deceased, his conduct would have been understandable and perhaps excusable. In such a case he would not have been expected to call security,’ judged Masipa.
But, she said, in this instance this was not the case. ‘The accused had reasonable time to reflect, to think and to conduct himself reasonably. On the facts of this case, I am not persuaded that a reasonable person with the accused’s disability in the same circumstances would have fired four shots into that small toilet cubicle.
‘Having regard to the size of the toilet and the calibre of the ammunition used in the firearm, a reasonable person with the accused’s disability and in his position would have foreseen that if he fired shots at the door the person inside the toilet might be struck and might die as a result. The accused knew that there was a person behind the toilet door; he chose to use a firearm which was a lethal weapon [and] he was competent in the use of firearms as he had undergone some training.’
In drawing to a close, Masipa asked the questions critical to this charge. Would a reasonable person in the same circumstances as Oscar have foreseen the reasonable possibility that if he fired shots, whoever was behind the door might be struck by a bullet and die as a result? Would a reasonable person have taken steps to guard against that possibility? ‘The answer to both questions is “Yes”, ’ she said.
‘He failed to take any step to guard against the resultant death. I am of the view that the accused acted too hastily and used excessive force. In the circumstances it is clear that his conduct was negligent.’
Masipa stopped short of making a ruling on culpable homicide at that point, although her direction was clear as she adjourned for the day.
Oscar was overcome with emotion. Well after the courtroom had emptied, and with a massive throng of journalists awaiting his exit, he spent around half an hour seated in the far corner of the courtroom. Aimee sat half on his lap, half on the arm of his chair, stroking his head as he scrolled through his phone. Finally, after what must have been an excruciatingly emotional day, he walked out. When asked how he felt the day had gone, he looked straight ahead, said nothing and kept walking.
Did Oscar ‘escape’ a murder charge? Did he ‘walk free’? Many people thought so. Legal experts piled into the debate, with many believing Judge Masipa had made a fundamental error in law in her application of dolus eventualis. Opinions were offered on social media, in traditional media and all across the country.
Attorney David Dadic tweeted:
He is a bad witness but believes his version regarding his intent not to shoot? Huh?
Constitutional law professor Pierre de Vos tweeted:
Surely if you shoot into a door of small toilet and know somebody behind door you foresee and accepts possibility of killing. Not sure rejection of dolus eventualis is correct here. #OscarTrial
The sense from criminal defence advocates we spoke to was that Masipa had ‘conflated’ the concepts of reasonable foreseeability and dolus eventualis.
‘I’ve had colleagues phone me today gobsmacked, literally saying, “Do I not understand the law? I would be amazed if Gerrie doesn’t appeal!”’
In Grant’s opinion, Masipa got all the complicated ‘legal stuff’ right but made an error in applying it. ‘What she did was she got the principles of this difficult stuff right. But she hashed the application of dolus eventualis to error in objecto. There should have been a finding of intention to kill, but there could have been conceivably a finding of lack of intention with respect of unlawfulness. It’s conceivable that he could have been mistaken that he was entitled to kill. That would have been a sound foundation for an acquittal on murder.
‘I’m saying that she acquitted on the wrong grounds. The problem is that she gets the difficult theory right, but, in applying dolus eventualis to this theory, asks the wrong question. She should have asked: did he foresee the possibility of killing whoever was behind the door? Instead, she asked, did he foresee the possibility of killing Reeva? She set about answering the wrong question to start with.’
Essentially Masipa’s critics were arguing that if Oscar could have foreseen that someone could die when he shot, he should be convicted of murder.
Criminal attorney Ulrich Roux summarised this best in a piece he wrote for The Guardian:
In delivering her ruling, Judge Thokozile Masipa said that ‘a reasonable person would have foreseen if he fired shots at the door, the person inside the toilet might be struck and might die as a result�
�, which suggests a classic case of dolus eventualis.
But the judge seems to have cleared him of this charge because she felt that, to be guilty of common-law murder, Pistorius needed to have foreseen that his actions would kill a specific person – Reeva Steenkamp.
The state tried to prove that Pistorius was aware that it was Steenkamp behind the toilet door but the judge accepted the defence’s claims that he thought it was an intruder. She put a lot of weight on the genuine remorse he showed after the fact, saying there’s no way he could have faked that.
Dadic distilled the storm of criticism into one simple comparison. ‘Jub Jub the rapper gets in his car. He’s drunk and he’s drag racing. He gets convicted of dolus eventualis because the court decides he must have foreseen a negative consequence to his act. Oscar Pistorius is sober with a gun and shoots four shots into a closed door. He is acquitted of dolus eventualis because the judge is of the view that he didn’t foresee and is convicted of culpable homicide because he should have foreseen. In my opinion the test has been misapplied by the judge as it is difficult to legitimately believe that a person who shoots at someone four times does not on some level wish to kill that person – that is intent.’
But, as is the case with any contentious judgment, some legal minds believe Masipa got the law exactly right.
University of Cape Town law expert Kelly Phelps explains: ‘As I see it, there were always going to be problems for the state with dolus eventualis. The one pertains to the actual boundaries of the definition itself and the other pertains to this legal rule that they were trying to evoke in error in objecto. This is such a technical part of the law. This is not the type of debate you see in courts every day. It’s nuanced esoteric debate that academics have amongst themselves. I’m not surprised that people are missing the nuance.
‘The state tried to argue dolus eventualis in a variety of indeterminatus and what that means in laypeople’s words is “general intention”, meaning “I didn’t particularly care or know who I was going to kill but I foresaw the possibility that I would kill someone but I proceeded none the less”. So when the state put to Oscar but you didn’t know who was behind the door, there could have been a child or a homeless man, he said “Yes”. The problem for the state was that if it had been a child, or a homeless man, Oscar would be guilty of murder because he hadn’t excluded the possibility that it was either a child or an intruder and proceeded anyway. However, he had excluded the possibility in his mind that it could be Reeva in the bathroom; therefore he cannot have dolus eventualis with respect to killing her because he subjectively, genuinely did not foresee the possibility that she could die and proceeded nonetheless. It’s not fulfilling the legal boundaries of dolus eventualis. I think the finding is exactly right,’ says Phelps.
Writing on The Law Thinker website, editor Brad Cibane backed up Masipa’s ruling, pointing a finger instead at what he called Gerrie Nel’s ‘cockup’:
In Oscar’s case, the State failed to prove this ‘actual reconciliation’ beyond a reasonable doubt. In fact, it was not the State’s case that Pistorius foresaw that he was going to kill the ‘intruder’ and reconciled itself to that possibility. Instead, quite befuddlingly, Advocate Nel (the State prosecutor) opted for what most of us thought was an impossible route – proving that Pistorius intended to kill Steenkamp.
It is worth noting that saying Pistorius ‘should have foreseen’ that opening fire at the ‘intruder’ would lead to the intruder’s death is negligence, not intention. That is a ‘reasonable man’ or objective standard. A subjective standard is what Pistorius actually foresaw and actually reconciled himself to, as the consequence of his actions.
In South Africa, while there is no jury system, there is an appeal system. This means that Masipa’s decision could be taken on appeal to a higher court, the Supreme Court of Appeal in Bloemfontein, and ultimately, if applicable, to the Constitutional Court in Braamfontein.
However, the state can only appeal a ruling after sentencing is finalised and if a judge is found to have made an error of law and not an error of fact. In the wake of the verdict, most commentators insisted an appeal was inevitable. But some believe that Masipa’s so-called error was one of fact and not law, rendering an appeal impossible. Cibane is one of these. ‘What Pistorius actually thought is a factual finding. Therefore, it will be extremely difficult, if not utterly impossible, to overturn Masipa J’s findings on the facts as presented or proven by the State,’ he wrote in his blog.
For the defence to appeal a culpable homicide conviction also comes with risk and potential complications because a higher court could overturn Masipa’s judgment and impose a murder conviction.
At the time of going to print, it was unclear whether either side would appeal Judge Masipa’s verdict.
On the morning of the second day of judgment, newspapers trumpeted the previous day’s news – Oscar Pistorius would be acquitted of murder. However, the dailies were also filling column space with quotes from legal experts debating the merits of Masipa’s judgment. She, in the meantime, was likely cocooned away from all the noise, as she seemed to have done successfully throughout the trial. As her blue-light cavalcade brought her down Madiba Street shortly after dawn, it’s possible she had no idea of the dust she had kicked up.
The previous afternoon Masipa had stopped short of convicting Oscar of culpable homicide and there was still space for her to acquit him entirely. What would her final verdict be? She also had to make a finding on the three gun-related charges Oscar faced: the sunroof incident, the Tashas shooting and the ammunition charge. In addition, Masipa would have to make a finding on Darren Fresco’s indemnity and whether he had been a truthful witness with regards to the Tashas incident.
When Masipa took her seat on the bench, she went straight to Count Two – the alleged sunroof shooting – and summarised the facts. Two witnesses had been called to testify to this charge: Oscar’s ex-girlfriend Samantha Taylor and Darren Fresco. Their versions had differed considerably and Oscar had accused them of conspiring against him. He denied that the shooting had happened at all.
Masipa agreed that Taylor and Fresco’s versions of how, where and when the incident happened were so dissimilar that ‘one may be tempted to think they were talking about different incidents’. The judge emphasised she had to approach their evidence with caution.
She found that Fresco was not an impressive witness on this particular count. ‘In fact, he was proved to be a dishonest witness,’ said Masipa, referring to the photograph produced by Roux during cross-examination that showed that Fresco was driving the car when he had claimed it was Oscar. She noted that Fresco couldn’t say with certainty where the incident had happened, and he told an ‘unlikely story’. With regard to Taylor, Masipa said it was clear that she had been hurt by the manner in which the relationship had terminated. But this didn’t mean ‘she was out to falsely implicate the accused’. In fact, Masipa found that it was Taylor’s version rather than Fresco’s that had ‘a ring of truth’ to it.
But this was not enough – the state had to prove its case beyond a reasonable doubt and, because of crucial contradictions by the state witnesses, Masipa found: ‘The evidence placed before this court falls short of a conviction in a criminal matter. This court’s conclusion is that the state has failed to establish that the accused is guilty beyond reasonable doubt and has to be acquitted.’
BREAKING #OscarPistorius NOT GUILTY on sunroof shooting charge
Masipa moved on to Count Three, the discharge of a firearm at the Tashas restaurant in Melrose Arch. Boxer Kevin Lerena had testified on this charge, so too had Fresco who had been offered indemnity for his potentially incriminating evidence. Roux had already accepted a degree of guilt on behalf of his client during closing argument so a finding of guilty was likely.
There had been some dispute about whether or not Oscar had actually pulled the trigger or what had caused the gun to go off, but Masipa was not distracted by this.
‘In
my view it really does not matter what caused the firearm to discharge as that will not assist this court in determining whether the accused was negligent. No one has submitted that there was intention on the part of the accused. What is relevant is that the accused asked for a firearm in a restaurant full of patrons and that while it was in his possession it discharged. He may not have intentionally pulled the trigger; however, that in itself does not absolve him of negligently handling a firearm in circumstances where it creates a risk to the safety of people and property and not to take reasonable precautions to avoid the danger.’
Masipa found that Fresco’s version was materially supported by Lerena. ‘Lerena was a good witness and I did not detect any indication of bias against the accused. This court was given no reason to reject his evidence and that evidence is accepted in total as true and reliable. It follows also that this court accepts the evidence of Fresco in this regard.’ Sitting in the front row of the gallery, Fresco ran a hand through his hair and let out a deep sigh – his indemnity was likely now.
Pointing to the testimony of firearms trainer Sean Rens, Masipa established that it was clear that Oscar had been trained in handling firearms responsibly. ‘He should not therefore have asked for a firearm in a public place such as a restaurant full of patrons, let alone handle it,’ said Masipa. It was her view that the state had proved its case on this count beyond reasonable doubt.
BREAKING #OscarPistorius GUILTY on Tashas shooting charge
Lastly, Masipa addressed the charge of illegal possession of ammunition – the rounds in his safe for which he did not have a licence and he claimed belonged to his father.
