Several attempts have been made to justify the decision of Judge Masipa to acquit Oscar Pistorius of the murder of Reeva Steenkamp. Regrettably, in my view, none of them are successful.
Burchell* falls into the same wishful thinking errors of Taitz and Cibane, and logical error as Masipa.
Burchell (and Taitz**) observe, correctly, that the (original) Pistorius defence was putative private defence. This is the defence that one mistakenly believes that one is entitled to act in private defence. If the accused makes this mistake, whether he is mistaken about the facts, or (as Burchell correctly adds) the law (De Blom 1977 AD), the accused cannot be convicted of murder. This is because an accused who is mistaken in this way has no intention to act unlawfully. Putting it positively, the accused believes s/he is acting lawfully. The enquiry is entirely subjective – what did the accused actually think or forsee. It is, as indicated, a complete defence to murder. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.
The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), she erroneously states that the question is whether the accused foresaw that his conduct could kill [fullstop]. As discussed, this is not the right question.
It does not make her decision right to say, as Taitz and Burchell argue, that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked another question.
Then there’s the problem of error in objecto and dolus eventualis. Error in objecto describes a scenario in which, as Burchell explains: “In terms of this rule, if A intends to kill B and shoots and kills C, whom he mistakenly believes to be B, then A’s mistake as to the precise identity of his victim is irrelevant and he could be liable for the murder of C.”
It is worth noting that there is no mention of the reason why A thinks that C is B. This is in line with our settled law, that takes no account of the reason why A makes his/her mistake. If identity is irrelevant, the reason for any error as to identity cannot be relevant. The identity of the actual victim is irrelevant as is, necessarily, any reason for a mistake as to identity.
Both Masipa and Burchell correctly observe that the facts of the Pistorius case disclose a scenario of error in objecto – in which the identity of the victim is irrelevant.
It is notable also that the defence never argued that the accused had not intended to kill – but only, perhaps, at most, intended to injure. This too would have been a valid defence against murder, but it was not a defence claimed, and certainly not one – from the wording of her judgement – relied on by Masipa as a basis on which to acquit the accused of murder. I don’t see how it could possibly make Masipa’s judgement right to refer to a basis on which she could have relied, but did not.
It is possibly also worth mentioning that her judgement did not turn on a finding – that was crucial in the Humphrey’s case (2013 SCA) – that, although the accused did forsee the possibility of killing whoever was behind the door, he did not accept that risk.*** Again, that would have been valid basis (on our law as it stands) to acquit the accused of murder. However, from the wording of her judgement, this was not the reasons she gave for acquitting the accused of murder.
Returning to what Masipa actually said, and how she actually reasoned. After noting that, in error in objecto scenarios, the identity of the actual victim is irrelevant, she asks what she says is required by the test of dolus eventualis (legal intention): Did the accused forsee the possibility of killing the deceased. This is the wrong question for two reasons. As discussed above, the accused’s defence was that he did not intend to unlawfully kill anyone. This focus – the very basis of the defence of putative private defence – is lost. But, putting that aside, secondly, it is wrong because it deviates from, even contradicts, the recognition that the facts disclose an error in objecto scenario and that the identity of the victim is irrelevant. The question then, correcting also for the defence of putative private defence, should have been: did the accused foresee the possibility of unlawfully killing whoever was behind the door.
Again, it does not help to say this cannot be true because he thought the deceased was in the bedroom. This is the argument that Masipa seems to have finally settled on – and it is fatally flawed in logic. She says: the accused could not have forseen the possibility of killing the deceased, or anyone else for that matter, becuase he thought the deceased was in the bedroom. The fact that the accused thought that the deceased was in the bedroom says nothing about what he thought about the presence of someone else in the toilet. Indeed, it is his defence that he believed someone else was in the toilet.
Burchell perpetuates this error in logic. Referring to his scenario in which he notes that it is irrelevant that A intends to kill B, but kills C, he argues that there can be no intention to kill C if A had excluded in his mind the possibility that the person he thinks is B, could be C. But this is the definition of an error in objecto scenario – let’s take this slowly:
A intends to kill B.
He does not intend to kill C, but B.
He thinks that B (the human body) is, well, B.
In thinking that B is B, he does not think that B is actually C.
So thinking that B is B and not C, he has excluded in his mind, the possibility that B is C.
This is the definition of an error in objecto scenario and there is no dispute that the identity of the actual victim is irrelevant. That is, it cannot help the accused that he thought that B (the human body) was B – where he did not think that B was C. Therefore, it cannot assist an accused who has excluded from his mind the possibility that B is C.
Importantly, the reason for any errror as to identity is also irrelevant. It cannot help an accused who thinks that B is B because B is not C. Our law is clear, in error in objecto secanrios, identity is irrelevant, and it remains irrelevant no matter what an accused’s reasons are for making a mistake as to the identity of his victim.
Masipa’s error was similar. In her view the accused could not be convicted of murder because the accused did not forsee that he could kill C (or B), because he thought C was in the bedroom. In that case, it leaves him thinking that B was in the toilet. As we know from the rules of error in objecto, it is no defence to say that he thought that B was B, and not C.
In conclusion, we have seen several attempts to justify Masipa’s judgment, all of which seem to fail. It does not make Masipa’s judgment right to pretend that her reasons were reasons that would make her judgement right: that she decided that the accused had not accepted the risk of killing the deceased, that she recognised putative private defence, or that she found that the accused only intended to injure the intended target. These were not her reasons and, however valid they may be, it doesn’t help to pretend that they were her reasons. It also doesn’t help to attempt to justify the distortion of our law on dolus eventualis applied to error in objecto and the logical error made by Masipa. The law on error in objecto is clear. Identity is irrelevant – for that very reason it cannot help the accused if he thought that it was B behind the door; nor can it help an accused who argues that he thought that it was not C. The identity of whoever was behind the door remains irrelevant. There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and logic.
** “Judge Masipa was right on Dolus and murder”.
*** See Cubans B. , JUDGE MASIPA GOT IT RIGHT: Oscar Pistorius and the intention to kill via @thelawthinker.

  1. Karen says:

    In a layperson point of view regarding Masipa’s verdict ~ she is undoubtably wrong, and hence wrong with the sentence too. It was, very unfortunately, way back when she ordered OP to go to Weskoppies for the 6 weeks max when she’s already made her mind up that she pitied OP by stating to him, words to the effect of “you shouldn’t be punished twice” in going to Weskoppies on day release. She was also wrong to decide to ignore the independent common folk evidence, hearing the screams etc that fateful night. She decided to think what she wanted to think and incorporate that within the law but her inaccuracies have been spotted Worldwide. I can’t work out what she hoped to gain from this. Indeed there are other more significant errors as already pointed out on here, and her giving OP any time in prison seemed to only come about due to pressure from the WW public, otherwise I believe he would have walked (some house arrest only) – this taking in public opinion would not be allowed in the UK but thankfulky it was in this case.
    Masipa was nothing but a huge disapointment for millions of people in SA and around the World.
    As a professional Doctor of Psychology, having taken everything into consideration, I know that O Pistorius is guilty of premeditated murder, with intent to end the life of Reeva Steenkamp.

    • Jack Smith says:

      Karen, I also found Masipa disturbingly inexplicably sympathetic in subtle ways throughout the trial. She was anything but what I had expected based on her reputation. She seemed to want to attribute as little direct blame to P as possible. I felt she wanted to send him home as a bit of naughty who had already suffered greatly and was well worth sparing her usual wrath for remorseless real criminals. It was surreal. She agrees that the culpable homicide borders on murder and that Courts can’t be seen to favor the rich and proceeds to ignore both ideas in the most aggriegous way. You couldn’t have hoped for much better result if the trial had been fixed. Maybe an outright aquittal. The only real difference was 10 months jail and loss of gun ownership. The community was always going give their punishment of loss of contracts and fallen hero status. In the end, killing off the witness with 3 more bullets was a good choice. An injured but alive R would have much more fatal to P. That would have brought out the other side of Masipa. I’m still inclined to the view that his anger must have been white hot eg manliness questioned/she didn’t yield/leave threat and lost it demanding she come out of toilet and then had to finish her off. I’ll accept all happened in a moment of mad rage and no true or traditional premeditation but not pure crime of passion either. Difficult to prove beyond doubt, which is real test, forget reasonable. Lip service is paid to reasonable doubt in practice. It’s beyond all doubt that really counts. If there is doubt of almost any kind there is no conviction. Nel didn’t delve deep enough on each point of absurdity because he thought it was obvious and Masipa needed to be led by the nose as she apt to get lost and throw her hands up in the air and say who knows. She has a very simple world view and was never going to figure it out left to own devices to any extent. She thinks one can’t regret one’s actions almost immediately after undertaking them! Poor impulse control people spend their whole lives doing just that. I think P qualifies on this score.

    • Arpita Roy says:

      Notwithstanding the contradictions in both witness and respondent’s accounts, Judge Masipa chose Pistorius’ testimony – an interested party – and ignored Stipps or Johnsons – all disinterested neighbors. Truly amazing

      • Jack Smith says:

        Apparent, Masipa begrudingly bowed to the superior intellectual grunt of the Wits Prof. and knew it highly likely the SCA would take the appeal on petition for all sorts of good reasons.. However, Masipa still beligerently reserved some face save by stubbornly and tokenly refusing leave on sentence and ammunition verdict. This has been one almighty hackfest by Masipa.She has made a complete meal and hash of this case. Reality is all verdicts are still open including dolus directus murder. The later could come about as a result of the reservation of Masipa’s treatment of the rules of circumstantial evidence, which were muddled, dismissive and shirking. I predict SCA will have little trouble convicting on dolus eventualis murder thereby implicitly rejecting Pistorius’s core version about being mistaken about the need for self defence and furthermore will call him a liar outright about the key events of the incident and find dolus directus murder.This will mean SCA will find a complete mishandling of the circumstantial evidence by Masipa. Specifically, Masipa didn’t demonstrate proper consider of all of the evidence and dismissed evidence for her own personal intellectual convenience. The outright dismissal of the ear argument witness was ludicrous, as was the circumstances of the scence of the incident and the pre-shooting and some post-shooting conduct of the accused. No doubt the case was intellectually tough and nusanced and many inferences of reasonableness regarding evidence singularly and as a whole were required but that does not excuse Masipa for not providing detailed evidence of a serious attempt to properly analyze each and every piece of evidence and the evidence as a whole.She should have taken more time if she needed it and re-read every word of the 4000 page plus record. A statement that questions must remain unanswered and the circumstances were peculiar is grossly inadequate to the task. The reality is that this case appeared to be beyond her natural ability. Her approach was trite, overly simplistic, imperceptive, mechanical and rote. It was terribly uninspired.

  2. Jack Smith says:

    3 questions for anyone:
    1. Can leave to appeal be granted in time given Seekoei appears as if it needs to be successfully appealed before an appeal can be made? Haven’t read Seekoei (can’t locate a copy- can anyone point to an electronic copy?) but seems bizarre that it would limit S319 to acquittals (as defined) when S322(4) provides for further remedies to S319 in the specific case of an acquittal.
    2. It’s true it can’t be assumed what Masipa would have concluded had she asked the right questions on DE (and provided a more fulsome reasoning on her views on PPD.)
    {However, I might venture to suggest that she was almost on a trajectory to blow past even culpable homicide before she, in my view, pulled up a little with comments about what he could have done eg call police, yell out for help, etc. Not much help if an attack is imminent! Leaving the building and then so doing makes more sense. Her suggestions don’t fit well with her seeming acceptance of other evidence about how vulnerable, hyper sensitive to strange noises and utterly petrified he was (perhaps counter intuitively) creating an urgent fight rather than flight response. He got himself into quite a lather quickly in a tiny space. If she accepted this, then from a practical viewpoint, he didn’t really act that hastily or excessively. Shooting at a hovering silhouette could be fraught with disaster as well. There was no time to waste. Of course, I don’t recall evidence led about whether any noise of the window opening can be heard from the bedroom with fans going or whether Reeva’s finger or palm prints were on the window ie whether it was already open. You know hot night and balcony windows already open. I suspect Masipa had a judgement in mind regardless of reasoning, which is why she didn’t bother herself too much with a very careful detailed legal analysis. She also appeared to lean excessively on the defence narrative (loved the time line/technology argument- those she could reliably understand and make sense of in their own right) and then shockingly struck out holus bolus crucial evidence that didn’t fit. Maybe she was just a little lost on what to do and decided being very conservative would be safer than coming up with her own unique, perceptive, insightful ,nuanced and deeply thought out and carefully crafted narrative using the Nel urged mosaic approach. Not necessarily a different verdict. [ My 2 cents on a perceived lack of robust intellectual individuality displayed by Masipa. Disappointed. Expected more inspired insight and rigor from a High Court judge. Seemed excessively plodding, mechanical and formulaic ].}
    Is it possible that the SCA could conclude that Masipa would have inevitably come to the same conclusions had she more strictly asked the right questions and therefore her errors of law are immaterial and are loathe to disrupt the verdict notwithstanding they would come to a different conclusion had they opined on her questions as phased or as necessarily corrected ie the might feel like they are in reality second guessing Masipa? Or will the State benefit from Masipa’s “technical errors” when in very high likelihood she would have concluded the same way regardless of what legal questions she asked? If the State did benefit, this would be finally a piece of good fortune for them after probably catching the wrong judge on this case.
    3. Can the prosecution still appeal the sentence on culpable homicide?

    • TIM says:

      2. She had to find him guilty of culpable homicide because he was “criminally responsible” for the shots, and the shots were unlawful – didn’t identify the target – and there were 4 of them (which is the “excessive force” part of the reasoning) – too many for a so-called “startle”.
      No way to escape from repeatedly pulling trigger through the door without a psychiatric disorder. So it was definitely the minimum.
      It was very surprising she didn’t actually reference the gun laws which were broken.
      However in terms of her findings about it, she did score it relatively high on the culpable homicide scale (as “gross negligence” and also “with intent to shoot”).

      • Jack Smith says:

        She paid lip service to it being “gross negligence bordering on intent” and “whole of person approach” to sentencing is a con as it will invariably favor a rich (typically) white first time (convicted) offender. Said sad day for SA if perceived two sytems. Well she then proceeded to create exactly that impression. You can get 10 months in most countries for a minor offence eg unlicensed weapon guy just got 2 years served. In Japan guy printing 3D gun gets 2 years. Nearly intent should get nearly DE murder nearly minimum and 10 years served and this a bargain for nearly an execution.

  3. Pistorius’ motive to incapacitate,not to kill ,suspected intruder.
    Judge Masipa was not entitled to infer/conclude that Oscar Pistorius intended to kill the suspected intruder( and therefore was guilty of murder). This is because a far more likely explanation was that Pistorius intended to incapacitate the suspected intruder – would almost certainly have preferred to incapacitate without killing – and that the death of the suspected intruder would therefore have been an unintended consequence or by-product of an attempt at incapacitating the suspected intruder. (The fact that one jumps in front of a car in order to avoid being hit by another car – and foresees the possibility of being hit by a second car – does not mean that one intends/wants to jump in front of a car.)
    In addition,the court would have to have to have taken cognizance of the fact that Pistorious would have had an inadequate opportunity to examine his options and the ramifications thereof(that there hence was little or no premeditation /planning )and that his ability to think rationally would probably have been impaired significantly by the knowledge that the suspected intruder could be armed and dangerous.
    Self-evidently,someone who gratuitously kills an innocent ,unarmed person deserves a much heavier sentence than someone who under the influence of fear kills an intruder who could be armed ,and there hence is perilously little point in convicting the latter of the same offense as the former.
    Judge Masipa, in deciding that Pistorius did indeed believe he was firing at an intruder, had no choice but to dismiss the murder charge.
    Terence Grant
    Cape Town.

    • spqr2014 says:

      Masipa J could only acquit of murder if she believed OP had an honest belief that he was under imminent attack on his life.
      She held that he had the requisite honest belief discharging his liability for murder. Therefore, he did not kill unlawfully. Self defence can be a complete defence. But not so here, as she found that the amount of force he used was unreasonable (as the “Reasonable Man” would not have used that amount of force).
      It is interesting how Masipa came to her conclusion re honest belief without offering any factual or evidentiary support for that finding other than what OP said/documented whilst at the same time acknowledging he was evasive and a poor witness. She acknowledged his credibility as to telling the truth in his evidence was called into question and then went on to believe him!
      So objectively, she held that the facts supported a contention that he was unreasonable but honest in his unreasonableness!
      Before this verdict was handed down I would have said such a ruling was impossible. I would never have believed that a Judge, of all people, would ever hold that it was NOT REASONABLY FORSEEABLE THAT OP`S DELIBERATE ACT, viz.:
      • a gun expert or at least having passed the training course and familiar with weapons,
      • in firing 4 soft-nosed bullets through a wooden door
      • from less than 2 metres
      • into a small cubicle
      WOULD BE VIRTUALLY CERTAIN to cause, if not death, then grievous bodily harm.
      In answer to TG
      “This is because a far more likely explanation was that Pistorius intended to incapacitate the suspected intruder”
      It is not like the “intruder” was on top of him. There was no requirement to “incapacitate”. He was never in danger. Applying your reasoning he could have fired a warning shot and screamed his obscenities and perhaps even, “I have a gun, come out with your hands up, Reeva, call the police”.
      “– would almost certainly have preferred to incapacitate without killing –“
      Then why did he not fire a warning shot or even only as a last resort 1 shot?
      “and that the death of the suspected intruder would therefore have been an unintended consequence or by-product of an attempt at incapacitating the suspected intruder.”
      Res ipsa locquitur. Your reasoning I find slightly Kafka-esque (I do not live in South Africa but can see the potential dangers that this verdict brings to that country, so sad).
      “(The fact that one jumps in front of a car in order to avoid being hit by another car – and foresees the possibility of being hit by a second car – does not mean that one intends/wants to jump in front of a car.)”
      I think your reasoning, though ingenious at first blush, is upon analysis, flawed as you are conflating direct intention and indirect intention in the same scenario which is impossible. In your example, the person has no other alternatives (if they have, you have not eluded to them). They are making a decision: risk being hit by car A or risk being hit by car B. There is a clear intention, the intension i.e. the primary aim, the direct intent, NOT to get hurt. There is no requirement to introduce indirect intent. One would only introduce indirect intent (reasonable foreseeability of an unintended consequence) where there was no direct intention. Here there obviously is.

      • Jack Smith says:

        Is the test for PPD not subjective? In other words, she thinks he genuinely believed he was under attack AND legally allowed to use the force he did. Her only real implied support for her view is his contradictory and mutually destructive testimony on his defence that she thought evasive, untruthful and poor. It’s the second requirement for PPD that I find staggering she accepted P believed ie that he believed he was using legal force. The first requirement of PPD goes to the heart of the case and if not accepted we are looking at a strong implication he knew who was behind the door. This is not really at issue at this point of Masipa’s judgement. Nel is now asking on appeal that this testimony to be ignored and for the PPD subjectivity test be inferred from objective evidence, which is likely to lead to a second requirement failure. This is my take on where we are on this at the moment. I think it might be all rather critical to the success of a murder conviction. It’s a poorly and scantily reasoned section of the judgement and all rather incoherently and chaotically muddled before and after discussion on DE.
        I’d expect better from bright students given 7 months to figure it out.

        • Juanita says:

          As a lay person, what I find SO intensely disturbing and yet fascinating are the thousands of hours of debate and endless pages of discussion that this case has resulted in – all arguments deeply thought about, researched, studied and argued by the top legal brains in SA who in essence are all in agreement. The hearing took countless days in court, the judge gave both sides more rope and time and patience that anyone could envisage to ensure a fair trial for both the defence and prosecution. Throughout all of this everyone admired her fairness and patience, continually praising her conduct and perception, so much so that I often hoped and wondered during the round the table discussions on 199 (when we were told exactly how the law plays out and how the interpretation is to be understood) if she will think alike. AND yet what I find again so disturbing and fascinating is that she with her assessors, took (with ALL the above in mind) so little time to come to a conclusion and even a shorter time to summarise her findings in court. I wondered during her reading of the judgment how she could so glibly wipe out almost ALL the witnesses, disqualify Oscar as a credible witness during cross (when the real truth is tested) and yet believed his version that he was the only one screaming… NO ONE ELSE. Only him. If she was so sure of the witnesses lying under oath or as she gently put it perhaps confused from sleep or collaboration with partners or exposed to the media, why did she not at least attempt to ask more supporting questions in court to add more substance to her belief. If this is not allowed, then the Dewani judge’s assertive demeanour confuses me. And why is it that (after reading what so many qualified people spent so many hours typing) she left me with a sense of having a total misunderstanding of the law surrounding this case when other supposedly less qualified legal minds can see so crystal clear. I almost got the feeling that she was often led or guided by mostly the prosecution and often the defence. It almost reminds me of our government’s disregard for the law and constitution that they themselves put in place. I just hope and pray that these learned judges will not be blinded by personal prejudices, colour, fame, world attention and ego, but rather by the word of the law as it stands and should be interpreted to serve the greater public in the name of justice for all. And if you are to say, not to worry, they are the crème de la crème, then I would reply, I thought so too of the judge presiding over a case of this magnitude.
          I CANNOT believe that one man could have thought out such a creative version that his defence could take (or fake?) up so confidently and yet turn the law on its head in SA…. be it that some believe it to be a fable from the outset.
          In closing, if the final judgement is to be that the judgement remains culpable homicide and therefore he to be out after 10 months, then I will salute him and his team for being the best con men to date. And I will wish Judge Masipa a ‘conscience clear’ retirement.

          • Jack Smith says:

            I would have thought the case warranted a judgement with extremely detailed and clear reasoning where no one was in any doubt whatsoever what had been concluded and why. I expected each theory raised to be argued out fully such that one could discern clearly where Masipa went one or the other showing very convincingly why. If you wanted to understand the applicable law more clearly and you wanted to know how the key principles of PPD, CH, DE and DD link with each (eg PPD complete defence to murder but not CH ) should be framed in relation to the facts and applied and how they were in fact applied with clear reasons, you’d still be struggling. The lack of clarity and depth of reasoning is stunning, given the complexity and profile of the case. I’m still not clear to me why she believed he thought he was under imminent attack, except that he said so, said he heard wood sound and said he heard window open and so it was! I don’t even know if you can hear the window open around two corners. I guess she believed a liar because not to, might have caused a serious re-think on murder. The PPD and DE argument seemed a little too conjoined for me to discern clearly what happened here, other what appeared to be the result/conclusion ie that it applied! The dismissal of the argument ear witness took the cake for me. It fitted the chronology she borrowed from the defence that relied rather heavily on to provide almost a summary judgement, yet it was dismissed as unreliable. Should Nel have gone out searching for the possibility somebody else was up at 2-3 am arguing? Why didn’t they come forward? The witness was in the same complex as P. Masipa noted 4000 pages was daunting and thankfully she didn’t “need” to concern herself with too much of it although she said it had all been considered ,rest assured ( well ,quite frankly, where’s the proof), as the nub was to be found in raised voices, screams/cries and bang sounds. Really! What about the myriad of absurd details from start to finish? I think indeed Roux’s seasoned style, Pistorius’ s remorse performance over the loss of his tempestuous 90 day possibly sexless trist of use and convenience and even Masipa’s acceptance of the trite and simple all conspired to end up with a somewhat surreal result of 10 months jail, which I think Masipa dealt out somewhat begrudgingly.

          • Jack Smith says:

            I think P is smart ( cunning and an accomplished liar/actor). P said at start of trial he’d win, as he’s a winner.I think his story didn’t need much of twist to present as mistaken about an intruder. All he really needed was to hear 2 noises ( excuse to shoot) and not hear or see anything else. All problem details would inevitably be explicable with “don’t know” and “can’t recall” and be reasonable doubt. The only real problem for him beyond story is the argument ear witness. He was always going say he screams like a girl. I am certain I could have put together that story from the core of events and truth. Best lies are closest to the truth. You only need to remember the twists and wrinkles. Good eg was what P said to the intruder ie get the f … out of my house! Really! Has more of an argument ring to it than an intruder ring. Where was the intruder going? Back out the window? Into the toilet? If latter, would assume no gun. If no gun, then assume would respond, Ok I will leave ,don’t hurt me and not come out. If gun expect might confront P before going into a toilet an being a trapped rat. Maybe get the f.. out, I have a big gun with dum dum bullets! Criminals all over the world are renowned for denying until that doesn’t work and then they every level of mitigation of responsibility until one works for them. They are ingenuous. P even tried it wasn’t me, it was the gun. He wanted a complete walk for his moment of madness, like it never happened.

    • TIM says:

      “Judge Masipa was not entitled to infer/conclude that Oscar Pistorius intended to kill the suspected intruder( and therefore was guilty of murder). This is because a far more likely explanation was that Pistorius intended to incapacitate the suspected intruder”
      It’s the other way around. Masipa was entitled to infer/conclude that Pistorius intended to incapacitate the suspected intruder, but Pistorius was not in a position to claim if she did not infer it, because it wasn’t actually his offense: there is no “right in law” to have a court interpret circumstances in order to discover scenarios which were not proposed by the defense but which would amount to a lower sentence if they were true.
      It would be a different matter if Oscar’s evidence was that he intended to incapacitate the intruder but this was not at all what he said, he specifically denied any kinds of intentions when firing through the door, so therefore waives any kind of “entitlement” for judges to “infer” favourable cases – however, the judge MAY infer such cases IF SHE CONSIDERS IT APPROPRIATE.
      But you have the rights and obligations muddled up in case of false evidence, the court is not mandated as you have implied, this would make no sense in the general case since for example a defendant could plead guilty but the judge could find them not guilty according to some speculative theory the judge made up to replace the defendant’s case.
      Case by case basis: for a perceived self-defense case it is alarming that the “direct evidence” was not honest, it suggests the bar is being set unrealistically high for the prosecution if it is possible to give false evidence in such cases about your state of mind yet still have the subjective fears you are claiming to be accepted as the truth. I’m not clear how one would prosecute effectively if this principle were to be adopted by other judges.
      Can you suggest any evidence that might help to prove a matter if the defendant gives false version of their state of mind (e.g. “mistake shots”) yet still claims they were feeling scared and were not in fact the attacker, when they killed a person in private?

  4. Carmen says:

    Professor Grant,
    I recognize that you have a life and are busy, but I wish you would take some time to respond to a few more comments on your blog. I think we all value your insight and would love to hear your opinion on some of the comments that are made.
    Thank you

    • James Grant says:

      The comments section was conceived of as more of a discussion forum.
      Regretably I really don’t have time to read and respond to all posts – I truly wish I did. I do scan for themes and based on them, either post a response, or draft a follow-up post. At the moment I am working on a follow-up post regarding the Masipa judgement and another on the prospects for an appeal. I hope these will answer many questions – at once.

      • Carmen says:

        Thank you Professor Grant. I’m really looking forward to your next two articles, especially the one about the prospects for an appeal.
        I really hope that the prosecution will pursue justice and not look at the cost of a new trial as a prohibitive factor.
        Thank you

  5. Jason says:

    Dear Prof Grant, I agree entirely that Judge Masipa asked the wrong question and I hope that it will be reviewed in an appeal. I was listening to her judgement and everything she said made sense until she moved on to Dolus Eventualis then it no longer made sense.
    It seems to me that under the set of circumstances described by Oscar Pistorius. SA Law did not give him Permission to Shoot his gun. I think this is the central issue.

  6. DJ says:

    As a part of the argument against “dolus”, the judge mentioned Oscar saying “If she lives I will dedicate my life and hers to you” 15 minutes after shots.
    But she also said: Neither “the evidence of a loving couple” nor of “a relationship gone sour” can help the court to determine what took place – yet, tears and prayers after the shooting can do so?
    Why does a contextual statement overheard by Dr. Stipp after the fact carry more weight than Reeva saying “I do everything to make you happy and it feels like you never do” 6 days before them?
    There is an argument for disregarding Whatsapp but surely the judgement ought to disregard any other contextual statements as immaterial also?
    Significant weight was assigned to statements Oscar made but zero weight was assigned to statements Reeva made.

  7. DJ says:

    Hey Prof Grant,
    Could be wrong but are we debating on Juror13?
    I’ve been chatting to a James. If this was yourself, you mentioned if there was another way to chat as the feeds are getting out of hand?
    Sure, navigate to the Judgement video on YouTube, I post quite regularly there as Daniel King. So can easily find a post and send me a PM if you like.
    Of course if it’s not yourself I’m talking to on Juror13 blog, then apologies.
    Whether the answer is YES or NO this comment is not intended for the discussion here. I thought the reply might get completely lost in the thicket of messages on the other.

  8. Riana Brown says:

    Good day all. A little off topic, but this is something that has been baffling me quite a bit the last few days. Seeing that professor Grant also knows a lot about human behaviour, I thought I might take a chance and get some answers here.
    Oscar Pistorius had his version, and mostly stuck to it. The state did not have enough evidence to prove premeditated murder beyond a reasonable doubt. There was no smoking gun, nothing that could eventually make one think that there is no way this was not a planned killing and that he knew Reeva was in the toilet. According to most it was a fair trial, and even though there might be some errors regarding the application of the law, it does not seem that in Oscars mind he maliciously thought this through and decided to purposefully take a human life. After the judgement I found it fascinating, the utter outrage against the desicion. Most people are still waiting for ”the truth” to come out. As if to say the only truth is that he knew Reeva was in the toilet and intentionally shot and killed her.
    Why is it that the public cannot seem to accept that his version might just be the truth? Even if convicted for murder, it still does not mean he intended to kill Reeva, and I honestly cannot see that an appeal will ever result in pre meditation as an option. So why is it that everyone seems to WANT him to be guilty of premeditated murder?

    • LCB says:

      I agree absolutely, Riana but am 100% unsurprised. This is how much of society where I am has become, and I have seen many societies developing towards. It is the most distinct trend in any part of the world I have seen, I think. In fact, I think that Judge Masipa’s verdict is a kind of rare valediction of the due process of law and the upholding of the basic principles of law and procedure, such as proof and evidence, burden of proof, assumption of innocence without proof. In other words – look, when we don’t know, we don’t know. We are only human. Do we want to pretend we are psychic also? No, please. We ought to try not to let tragedy bring us down further, degrade what remains of our persons. Tragedy often has the potential to do that so keenly. It is important to be aware if we are to try not to let it.
      The integrity of the law must be preserved.
      I’ve been watching some court decisions, mostly rather high profile, in the UK for more than the last 10 years, having been to a law school in the UK before then. I am not a lawyer. I do not earn from the ongoing wheels of justice. Knowing what the law is, and the methods of test, objective, subjective, the meaning of reasonable in certain situations, common law meanings of each element, I was amazed sometimes how a jury could come to a certain conclusion based on the evidence presented. Often it seemed utterly impossible. Sure, you could say I have a good feeling that man killed that person, and even that, yes, it can seem probable he is the killer. But it cannot be proven beyond any reasonable doubt in law. Often, yes often, in these cases I followed, I very strongly doubted that there could even have been any proof on the balance of probabilities, should you wish to consider that lesser burden. This was very untypical, it seemed to me, before the millennium, in the 1970s to 1990s. Though it did happen, of course, as some overturned miscarriages of justice proved (and it would be foolish to think they would be all or perhaps even most of the wrong verdicts). But, generally, it was a rare thing before 2000, from what I was looking at. As well as the apparent inconsistency in evidence with conviction in murder, there was the recurring characteristic of choosing murder over manslaughter when I had the most strong doubts that murder could be the right verdict on any burden of proof, and manslaughter or culpable homicide was able to be proven but also intuitive.
      Sometimes I thought these strange, more recent verdicts must have meant new laws were made without it being obvious. I was not working as a lawyer, and the law changes. But I checked some of these. In nearly all cases no commentators were saying that Ratio Decidendi inclusions in the verdicts or suggestions from the verdicts were new common law precedents which developed or modified the way existing law was understood. Nor had the law I knew been developed in the interim. There were no claims by analysts that the old laws had become any different or could have ceased to apply. The law from statute and common law precedents had remained the same, but cases had occurred where it seemed to me they could not lead to the conclusion of guilt by due process.
      Instead, people were ignoring that it seemed rather clear that the verdict could not come from the facts presented, in strict legal terms. In the court of the high emotions and the wanting to convict some “monster” (now a favourite, regularly recurring term once limited to media but now favoured by courts, and *typically* in this part of the world, UK, yet strangely they don’t consider any insanity in nearly all of these cases.)
      A number of these were high profile cases. Before seeing any published case notes, one just had to wonder if the media reported only half the situation and the courts were deciding on other evidence. Because, most times, I would follow the long running media discussions and conclude, yes that person seems a good, prime suspect and there may be a lot to suggest guilt there. But on the legal process I knew I didn’t know how the jury were actually going to convict them. I knew I couldn’t have. I wondered what I’d do in such a situation, if I were in the jury, where the media focus was intense and the people were calling for a conviction. Because I’d been to a law school, which over 99.99% of people haven’t, I knew I’d be alright. But I wondered if I would have just be carried away in the confusion if I hadn’t learned law as an adult, and was on the jury. I wondered how many of them thought, well, no-one else is being presented as being suspected, or suspected much. So with all they’re saying about this person it must be him. But juries are not told about other suspects much of the time, or much about other possible suspects, even if there has been any other police investigation. It can be easy to assume that guilt is likely not only because the state has decided to prosecute this person, but, in conjunction with this because it decided against prosecuting different persons who it must have investigated.
      It seems that the juries of today can decide things, and nearly never will a judge bother to stop them and say, “but look, I understand you assume guilt, but it’s not possible following the strict legal procedures which need to be satisfied”. The truth is that judges simply don’t tend ever to do that to juries nowadays, whatever the jury decides. Which I suppose means, often enough, the law is not even being applied. The jury can come to any emotive conclusion, claimed to be based on what is allowable from facts but not able to be based on facts in each element of consideration, and the judge will not order them to reconsider based on any individual points.
      Instead, people – the press, legal commentators, lawyers at least in public, and the public – were ignoring that it seemed rather clear that the verdict could not come from the facts presented, in strict legal terms. It seems that the juries of today can decide things, and nearly never will a judge bother to stop them and say, “but look, I understand you assume guilt, but it’s not possible following the strict legal procedures which need to be satisfied. You must reconsider.”. The truth is that judges simply don’t tend ever to do that to juries nowadays, whatever the jury decides. Which I suppose means, often enough, the law is not even being applied. The jury can come to any emotive conclusion, claimed to be based on what is allowable from facts but not able to be based on facts, and the judge will not order them to reconsider based on any individual points.
      Then there are the questions about cover-ups and courts and police using the juries in this way to hide official secrets. Looking at other considerations for cases which seem to convict or favour a more serious charge where the law does not enable that, are very, very important.
      For example, many people accept Jill Dando was probably murdered in England because she had made clear to some people that she was determined to try as a journalist to get to the bottom of the long term politicians, councillors and public figures paedophile rings. The organised child abuse, and also child murder, is known to have happened, over decades.
      Whether or not that was the reason for her murder, it did happen, Ms Dando did communicate this deep formed, resolute intention to investigate and report to some people. Dando’s murderer is unknown to the public. The Metropolitan Police, after a miscarriage of justice, are not doing much. (For some reason or for very certain reasons, it is very likely most journalists had been more than just warned not to go near this area, from the time Dando was alive to today. I suppose they may be frightened. Jill Dando set aside her fear. It is further possible they have been served with ‘D’ Notices – official instructions to keep quiet or be imprisoned because of declared reasons of “national security”. More than just possible, it is known as fact this has occurred in at least some cases of child abuse carried out by public and state figures.)
      The Metropolitan police convicted neighbour Barry George of Jill’s murder, and they ignored and suppressed witness testimony, eye witness murder scene testimony from locals that the murderer was not and could not have been Barry George. This evidence is still ignored and suppressed by the Metropolitan Police and was not the reason that George’s conviction was declared a mistrial. Only someone with knowledge of his special and emotional needs realised that George could not have murdered Dando, and led to his release. The state refused to consider compensating Barry George, perhaps in the attempt to sow seeds of suggestion in an underhand way he was acquitted on a technicality eventually. In any event, the miscarriage of justice against Barry George served its purpose for a few years, and deflected attention from investigation anyone else, and the suppressed witness testimony being considered by police, still to this day. It has only been leaked in the last couple of years or so by the media, with most mainstream outlets being slow to report it (if they did at all), and giving it very small coverage.
      To take the Metropolitan Police in the 1980s, police members (as well as judiciary members) are known to have frequented the gay brothel Elm House in South London. (Although still generally unreported, it is known this place operated, with child abuse, well beyond the early 1980s, while it is the early time that most media reports focus on now.) Further, victims of awful, atrocious homosexual child abuse there now have made it a known fact that they were threatened by the Metropolitan Police that if they reported the crimes, they would be silenced and harm would come to them. Further it is known that members of the Metropolitan Police were being paid by the Elm House brothel which specialised in organised, severe child sexual abuse – an extortion fee paid to the police as police – to protect the brothel and cover up what went on. Whether or not the police members chose this or the owners suggested or chose it, it is still extortion, for something illegal. Also it is of course illegal in connection with child abuse. The lady owner paid the policemen for this. She said she was paying them because they were the police (rather than private individuals who also happened to be policemen), and that that meant that they knew what to do, and it must be ok.
      The Metropolitan Police member’s connections with high profile figure and state figures (including at least one former British Prime Minister) child abuse, and child murder in the case of the former Prime Minister, go back beyond the 1980s. The consensual associations involve the Kray twins’ paedophilia rings and involve Savile. Little known, I know that members of the police or the social workers they contacted or both were involved in “telling” a female Savile child abuse victim when he was alive that if she said anything more, she would be incarcerated in an asylum. She was told she had to think of what that meant for her. I have been told this happened a number of times, involving more than one police force. It was just echoing how Savile approached many of his victims – “we can do anything”, he said. He told victims “It’s not good to be mad, you want to be ok, don’t you?”, “we can make sure you get the help and quiet you need if you want to say anything in particular. I know everyone and they know me. Police, judges, psychiatrists, social workers”. After physical and sexual abuse of the minors. Police and others did what Savile or his accomplices urged.)
      I’ve really gone on about one case of Jill Dando and the police connections, mostly to one police force, and their associations known now in this internet age.
      I chose that particular case as an example, however, because of the similarity in all the cases I’ve described where it seems someone can not be convicted beyond reasonable doubt on the facts, through the correct process of law.
      I sat and watched the case as it developed, and indeed studied the court publications after, and the commentary. And before the verdict, just as after, I agreed that the case had been presented so that George looked like a very serious suspect without other evidence. (Not to know the police had supressed the most important evidence in existence about the murder of Jill Dando). But, without knowing anything further, I was sure Barry George could not have been convicted of murder on the facts presented. Further I was more or less convinced he should not have been found guilty should the burden of proof have been lesser – balance of probabilities – though I would not have been so indignant on the balance of probabilities. I conceived that some people might reason it possible to see guilt on that burden of evidence. But, again, certainly not on the burden beyond any (meaning all) reasonable doubt.
      So, I’ve been saying that with many cases for years now I’ve had consistently an inability to understand in terms of process and evidence and reasoning how at all many juries have been able to convict a significant number of people on evidence. This is evidence it seems clear should be significantly or substantially unable to finally convict beyond doubt, through the strict process of statue and common law precedent meaning identification we know as the law in my part of the world. … Which must be that way, which must be that strict, or we roll back to the days of mayhem and witch trials. I gave the Barry George trial of murdering Jill Dando as an example, because, although I didn’t know it during the trial and still wondered how he could be convicted on the law as it was, there are the most serious reasons why some people may have arranged for Barry George to have been tried and convicted.
      One must ask if similar reasons may exist in other cases. (Moving to Italy, look at the case of Knox and Sollecito for the murder of Kercher. What on earth is going on there? The police and prosecution seem even trying as hard as possible to portray a circus rather than a serious legal process.) One must ask also if the existence of such hidden reasons in a smaller number of cases may even be the reason for allowing (or developing) this trend of the last ten years or more of cases to convict when it seems the law itself says this may not happen.
      For these reasons, I am grateful as a foreign citizen but a citizen of the world for the rationed reason on proper process of Judge Masipa on the case of Oscar Pistorius in South Africa this year.
      I was not there, so I do not know if Oscar Pistorius in his presented state of being awakened in the night in the dark with residual paranoid feelings affecting him often anyway, acting in quite sudden, extreme fear and haste, intended or foresaw the death of his girlfriend, Reeva Steenkamp, or the death of anyone. I do accept Judge Masipa’s verdict that no count of murder was proven based on the prosecution’s case. I can be convinced by Judge Masipa’s decision that culpable homicide is a competent verdict, considering if the sentence is adequate. Most of all, however, I am dismayed how the psychiatrists and court can have decided that Mr Pistorius, through his own presentations was fully sane at the time. I think there is likely to be a grave error here.
      I do think that the prosecution’s case could have been developed more, and that it can be thought that Oscar Pistorius made it very difficult in the court room for the prosecution to go further. Though I know completely that the latter two assertions do not mean to any degree, nor lead me to believe at all in themselves, that Oscar Pistorius murdered Ms Steenkamp. Again, I was not there, so I could not know and I am aware that a good and acceptable verdict is that murder was unable to be proven from the defence’s case while the accused is guilty of the criminal offence of culpable homicide. Personally, I am not able to suggest the verdict is flawed as to culpable homicide rather than murder, setting aside the sanity issue I’ve mentioned.
      However, if I exclude the sanity issue I have personally with the case, i see that Judge Masipa has carried out a brave, though normal act. Normal in the sense of what ought to be, normally, rather than in the sense of what is typical of the times. I doubt very much indeed that, on the prosecution’s case, a British jury today would have decided anything other than murder, and I’m nearly sure a judge would not have queried any verdict they would have made. I am grateful for the plain speaking, simple clear legal logic read in public by Judge Masipa. I am heartened from this case that it has been avoided that it didn’t matter what kind of case the prosecution made as a serious suspect in a high profile case will nearly always be convicted of the most serious crime. I am not surprised that the people who disagree with the decision blame the judge rather than the prosecution, where only any blame could lie, as this is more typical of the social situation I have seen developing over these years. I begin to think that a judge trial is a far better thing than a jury trial when it seems that a judge will more or less never intervene in a jury’s verdict to advise them to reconsider on points because the law simply does not allow for them to reach the conclusion they have done, whether the accused is the killer or not. Although perhaps shocking for people to read, that can never be right, that the law can be put asunder in favour of an emotional fix of verdict, a quick social bandage, which wraps things up.
      Courts should not be about emotions. Real life is about emotions and the court is a part of real life, but it must be different. It has to be. Courts can not be about emotions in the true, adult, mature light of day. It is the slipperiest slope, also. The Barry George trial is an example of where the emotions were targeted, but actually much less obviously than typical in these kind of cases. There was an arranged process designed to make a jury feel that this must be the man, a kind of a peculiar “sicko” you may sympathise with but a deviant nonetheless. A case was designed to persuade that the sympathy inducing, emotionally challenged deviant should not get away, where the facts could not have proven guilt by the way the law needs to work. (And where the most important evidence as to the murder was supressed and remains supressed by the police, later leaked.) But it is not uncommon today in this part of the world, UK.
      Society has changed so much around it or of it or through it that people often no longer want to consider if the truth is being thought, and if the law is being maligned in the process, perhaps forever degraded to degrees each time this occurs. The gravy train of “get it sorted, whatever happens, tie it up, find a person, brand a monster, ensure the most grave offence is reached, however you get there” seems to reach everywhere.
      I want people to realise that humans are limited. We do not keep eternal natural truth or justice behind the courtroom doors, we only make reasoned thinking animal processes to the best of our abilities, when we are most healthy and wise. When we attack the fabric of those processes, especially the more important pieces of the fabric, we slowly, inevitably get away from our health and wisdom and the possibility of such remaining in our world and the possibility of people even accepting such in the future in our world. Every day could be a false “Brave New World” step in a direction we don’t want if we are being sensible, and we ought not to let it, where possible.
      Whether Mr Pistorius committed murder or not, I accept that culpable homicide is a competent and appropriate verdict on the reasoning given by a human and based on the prosecution case presented by humans. A competent verdict means a lot. The case is an illustration of humans trying. I feel sufficiently healthy and wise humans. Now, I suppose this next statement may or may not be being emotional. While the loss to her parents and family of Ms. Steenkamp and everyone who knew her including Mr Pistorius and the shame of her losing her life are both enormous, I have concluded, regardless of this verdict, I don’t have any reason to believe that Mr Pistorius is a bad man. He might be, but, regardless of Judge Masipa’s words, simply I cannot honestly hold it, being consistent to what I know. Checking and rechecking, I am utterly sure I can’t. I think that must be most important. At the end of the day, notwithstanding that I think there has been some tangible to substantial mishap (one can’t suggest the degree) in that some exposition of some kind of insanity (or insanity with automatism) did not form part of the court proceedings whatever meaning it would form, (where, again, that can’t be the judge’s fault), an appropriate justice is being served. I mean an appropriate justice based solely on the cases presented by both defence and prosecution, as they were able to in the circumstances. This is what we try for as humans who care about the law and what it means. More than that, it really is very important that we try to make sure we do not go beyond appropriate justice.

    • juanita le roux says:

      Correction. Murder.

    • DJ says:

      I heard not a single person argue that rejecting (significant) premeditation was an error. Although in South African law it can only be a few moments of thinking – such as the walk between bedroom and bathroom before shooting – the idea he “planned it” is not really something anyone has seriously been arguing about. Nel’s arguments for premeditation was solely the walk from bedroom to bathroom.
      And in fact the judge agreed that Pistorius may have planned to shoot when he took the safety catch off his gun while going there. So the judge agrees with Nel’s interpretation of the passage, it gives time to reflect before.
      In terms of Oscar’s version being the truth, the judge found it was reasonably possible “in general”. That doesn’t mean every little detail is the truth, or even that it is the answer to the case at all. It’s a finding. In fact, the judge agreed with the prosecution in some respects – it was clear Pistorius had not been “candid” about his “intentions”, it was clear he was “evasive” and a “very poor” witness. We still do not know why he fired four shots instead of one.
      Given the case concluded with some important questions left unanswered, it is natural for people to feel that there is more to it. Indeed even the judge says “unfortunately” we will not be able to get answers to some of the things about his version that “do not make sense”.
      She really left it open in some ways – so it remains a conundrum what ‘exactly’ took place, why ‘exactly’ he fired, even now.
      Remember he said his gun went off by mistake – the judge rejected that part. Reasonable doubt kicked in to decide some kind of version about a burglar might be true, other than that, I feel we are none the wiser.

    • Jason says:

      Dear Riana,
      I too find this aspect interesting. There is a saying that I would like you to consider: For those that believe no proof is necessary, for those that don’t believe no proof is possible.
      Now I believe the public (a vociferous number) formulated their opinion before the defence put their timeline together and presented their case in its entirety – only at the end of the court proceedings with the defences Head of Argument and Closing Statement could one see exactly the defences case, which for me, ruled out premeditated murder of Reeva at least in terms of the case put forward by the State Prosecution team.
      The significant number convinced that OP is guilty of pre-meditated murder of Reeva despite the Defence’s timeline and reasoning base their view on:
      a) Oscar’s performance on the witness stand, which included lies (e.g.Zombie Stopper), evasion (couldn’t remember who drove him home after being shot at on the motorway), his appearance of hiding something, his appearance of not being genuinely remorseful, his apparent reckless behaviour with guns, his inability to except responsibility for firing the gun when it was in his hand at the restaurant.
      b) Oscar’s behaviour while on bail … him starting another relationship with a woman, going on holiday abroad, his video re-enactment of what happened, his fight in a night club.
      c) The States narrative of a troubled relationship leading to death.
      d) Oddities about the shooting: Reeva not replying to him. Reeva being in the bed talking to him when he woke up, Oscar not hearing or seeing Reeva get up from the bed to go to the toilet, the very very specific set of circumstances needed for that to happen, Oscar not making sure he knew where Reeva was nor waiting to get a response from her, the jeans outside the window, Reeva’s slippers on the other side of the bed from where Oscar said she slept …
      e) Absolute belief that four witnesses could not mistake a woman’s scream for a man – especially the intermingling between a man’s voice and the “blood curdling scream”. The Defence saying they would prove Oscar’s screams like a woman but then not proving it.
      f) Weakness in at least two of the defences expert “witnesses”

  9. Juanita le Roux says:

    Sorry James – forgot to mention…:
    some observations that need no reply but that have been bothering me:
    1. I saw on the photos Reeva’s shoes neatly in place next to the bed ready to slip into if she needs to get up and as she would have left it when she got into that side of the bed. (the side closest to the bathroom where she “did not sleep” that night)…. Gerrie pointed out the packed bag and jeans etc, but I do not recall he specifically highlighted the positioning of the shoes…
    2. The one assessor asked if the toilet light was working. I thought “clever question”… it would pose the question why she would have closed the door let alone lock it….turns out the team now proposed that her phone could have served as a torch…if Oscar can be judged under “what would a reasonable person have done” then I would think one can ask the same of Reeva. Would a reasonable person not have left the toilet door open to let in light from the bathroom if the toilet light is not working? Or perhaps they would argue she locked the door after Oscar screamed… fine.
    Who can prove HE did not open the window?
    And incidentally, should a judge introduce an additional probability (cellphone=torch) in support of the defence/accused if they have not mentioned it?
    3. Most witnesses heard screams and shots. But not a single witness heard the dogs bark.
    4. Interesting the fact that he could not remember who he called, who fetched him and who brought him back (the night he was “shot at” on the highway) had no negative reflection on his credibility as a witness…. and it boggles the mind that a judge can admit that he crumbled under cross but the court believes his version as the only truth…..
    If the state does not or cannot appeal, South African justice and interpretation of the law has arrived at a very unfortunate cross road to my mind. Specifically pertaining to the benefit of the accused in future similar crimes.
    To me the judgment has elevated the Oscar trial to another level all together whilst the world is watching.

  10. Juanita le Roux says:

    Dear James
    Judge Masipa selected to disregard all witnesses’ testimonies of hearing a woman’s voice and only accepted that it was a man’s voice although no audio tests were delivered by the defence.
    What is of interest to me is that two witnesses that I recall testified that they heard two ‘intermingled” voices. that of a man and woman. To me it is difficult enough to “confuse” a man and a woman’s voice…. but how do you confuse two intermingled voices of both man and woman with that of a single man.
    Is it not better in the name of justice to be sentenced 15 years min for murder than 15 years max for culpable homicide?
    How will the culpable homicide rather than murder and not guilty for the unlawful possession of ammunition affect future defence strategies? Will it not open a flood gate?
    Lastly: Oscar applied for many guns in the past and every time he filled in the application form for each one. and still he did not know when not to shoot and that he is not allowed illegal ammunition? Surely this applies to the possession of illegal guns as well, and more references to this (rejected charge) can be made by future defence?

  11. DJ says:

    You might find this article interesting:
    So…if Pistorius had not testified:
    ‘One would normally impute to a person in the position of the appellant (in the absence of any evidence by such person as to his state of mind at the relevant time) a state of mind akin to that of a reasonable man.’
    Which is to say that the distinction between ‘wound’ and ‘did’ foresee would be eliminated if Oscar had not taken to the stand. This is because the defence has an “evidential burden” in self-defence, or putative self-defence. To escape the inference from ‘would’ to ‘did’, Pistorius had to testify.
    Nel phrased it rather less strong than that: The accused could prejudice himself if he took the stand. But it is clear from the above, that the accused would prejudice himself if he did not testify. Testifying is the only way to escape from having ‘did foresee’ with ‘dolus’ imputed to your state of mind. To escape the inference, an honest account of your state of mind must be given, satisfying the evidential burden that the perception your life was in danger was honest. The key debate centres around the ‘honest perception’:
    [1] The panel rejected his claims to mistaken shots, stating he fired intentionally. So the account was dishonest.
    [2] The panel stated that it remains a matter of ‘conjecture’ why he fired four times. So the account was not the whole truth. Pistorius said he “does not know why”. Yet, he is criminally responsible, and fired voluntarily.
    [3] He is likely to have a reason for his firing angles. None was given.
    [4] Most damning, he ‘perceived the door as opening’ and that is why he fired. The panel suppressed all arguments in relation to the ‘wood’ noise, they did not remark upon the magazine rack at all, they queried nothing. They simply took on face value the ‘movement’ as in his bail affidavit. Why were the prosecution arguments on this point completely suppressed?
    It is concerning that the ‘open window’ and ‘closed door’ are mentioned as (facile) ‘evidence’ his version is true, but the time that something contradicts his version, it is not mentioned at all. I can’t read that as anything other than partiality i’m afraid. Why has it not even been remarked upon. This makes it perfectly apparent that the prosecution would have been unable to refute his version anyway, since if they had found more contradictions, these might similarly have been ignored in the judgement.
    There must surely be a proper argument. A judge can’t simply pretend whole chains of argument did not take place? And then pick and choose things which support his version (ridiculous to say the closed door does anyway, since he fired through it, was this in contention?).
    I have found other examples of apparent partiality in the judgement as well:
    e.g. adjusting the shot time from 3:12 to 3:13-3:14, with no evidence to explain why the minutes were moved, though more in keeping with ‘prompt’ life saving
    e.g. rephrasing “Get the F outta my house” as the more polite “Get out”, which takes the edge of anger, and also confidence, off that remark, more in keeping with his ‘fearful state’ – is it not necessary as a matter of fact to quote verbatim in a legal document what was said?
    Why have the facts been adjusted in the judgement?

  12. Ofori says:

    I am in agreement with you, James. I think that Burchell’s analysis of error in obiecto as it concerns the elimination of the actual deceased is not convincing.
    Just an erratum: In the paragraph that begins with ‘Burchell perpetuates this error in logic,’ you say: ‘But this is the definition of an aberatio [sic] ictus scenario – let’s take this slowly.’ I think you mean to say ‘But this is the definition of an error in obiecto…’

    • James Grant says:

      Correct – thanks for picking that up – I wrote it while waiting in Hospital Emergency – my 2YO daughter fell and knocked her head on the edge of a step. She got concussed, but is OK now. Will correct now.

  13. Rian says:

    Prof. Grant, may I please have your opinion on the view of Prof. Callie Snyman, author of “Strafreg” the ‘bible’ we used and still use in law – perhaps you will find this book behind the bench of all Magistrates and Judges, which I have seen numerous times
    I know the article is in Afrikaans, but should be easy to read though.

    • James Grant says:

      Thanks Rian
      I went an read it and, respectfully, disagree with Prof Snyman. It doesn’t take a scenario out of the category of error in objecto just because it is also a case of putative private defence. Both were at play in the Pistorius case. Also, putative private defence was Pistorius’s (original) fence, but Judge Masipa did not engage with that properly. It does not help to say, if she had relied on it, she could have come to the same conclusion. While, of course, her conclusion is important for the accused, her reasoning is what’s important for the law and all of us.

  14. Juanita le Roux says:

    Dear James… I read an article in the Beeld yesterday, that made me sit up…. I forgot if it was you they quoted you… I think so, please check….it read something to the effect that the state can only appeal if it is to the benefit of the accused? Please tell me I misunderstood? How is this possible?
    this was based on a 32 year old court case. (the headline read something like another hurdle for the prosecution to overcome in order to be able to appeal.
    I would also like to know how it is possible that the judge could dismiss all witnesses hearing Reeva’s voice when two of them clearly and repeatedly stated they heard two INTERMINGLED voices. It is this word intermingled that concerns me. It is probable to perhaps confuse a woman’s voice for a man (I would not have thought so, but we have now repeatedly been told this), however HOW can the court tell you that the two intermingled voices you heard belonged to one man.
    Am I correct in saying it will be justice served correctly if he is sentenced to 15 years minimum for murder rather than 15 years max for culpable homicide – to prevent future defence attorneys to use this case as reference in their defence for murder?
    And lastly, if the ammunition charge is not appealed, would this be able to be used by future defence to justify illegal gun possessions as well?
    I have almost moved past is Oscar guilty or not, although I firmly believe he is…. but it is now crucial that justice is served.
    thank you.

    • James Grant says:

      I know – this is the case of Seekoei 1982 AD. I am analysing the judgement – it seems crazy – and the logic of the judgement escapes me – need to read it again. What Nel might need to Denis appeal this (Seekoei judgement) with the Pistorius judgment. He can appeal to the SCA and ultimately, the Con Court.
      I am working on a full analysis of the question of whether the state can appeal. Hope to post soon…

  15. Margaret says:

    for someone who is in the process of registering for LLB, I find this interesting indeed!

  16. LCB says:

    Actually I think, so far, the verdict is only showing how the law is in South Africa on murder. Just the law, I don’t mean the cultural situation. The judge had to consider private defence as it was presented by the defence counsel. Therefore, as is well known, that being a possibility, unless it is proven by the prosecution not to be able to apply, it remains as possible a consideration as any.
    Of course, it’s all about proof and the subjective nature of the mens rea. People are being really unfair to Judge Masipa.
    I don’t really see the point in attacking the judge or her reasoning in this verdict. All you’re trying to do is state that she could not consider some points which in fact it was her plain duty to consider, they having been presented. And, once presented, they must be proven not to be apply by the prosecution in order to be set aside by the judge. That didn’t happen. Indeed in such cases as this, it is often far too hard for the prosecution to prove murder. It’s just the law as it stands, not the judge’s reasoning in this case at all.
    Going to absolute basics outlines how the judge got everything right so far (with the punitive sentencing remaining to be issued, though – I think that may be an important part of the assessment).
    The requirement for murder is intention or foresight to actually kill someone. That’s absolute, set in stone. It means something subjective, in the mind, needing proof beyond doubt. Again, set in stone, absolutely.
    In other words, the accused must be PROVEN to have intended or foreseen killing someone. It doesn’t matter a single bit if something appears to be objective – such as asking, how can you fire 4 shots in a tiny cubicle and not have foreseen you may kill the person inside it? For Dolus Eventualis, the same criminal mind to kill, necessitating intention or foresight thought (and proving it beyond doubt), is required.
    This question is an objective analysis of the crime scene – “how can you fire 4 shots in a tiny cubicle and not have foreseen you may kill the person inside it?”. But we know it is irrelevant as any objective analysis is not allowed, utterly, by the law for murder. It’s just how it is.
    In each case, the state has to PROVE beyond reasonable DOUBTS the accused at least thought he could kill someone. In this case, the judge had to consider Pistorius acted in severe fear, by very quick impulse and only thought of shooting to scare or injure. He had not had time to think it may kill. He did not realise that his threatening shots could kill someone.
    Bizarre as it may sound, this is still a possibility, it is actually, and so the court must prove it is false in order for a murder verdict. However – not just in this case but in every case – subjective foresight where there is doubt of the nature of what went on and what the accused intended is NOTORIOUSLY difficult, often practically impossible to prove. So it is here.
    All that matters is that foresight was not proven beyond reasonable doubt by the prosecution. You can say Pistorius saw to that, by his behaviour in court, which would prevent anyone from examining him more deeply. You can say that, and you might be right, but it only puts the onus further on the prosecution if you believe that the culpable homicide verdict is wrong, and not on the judge’s application of law. If there were something amiss anywhere it was in the prosecution’s examining of Pistorius of this point, and again, not in the judge’s reasoning of this later.
    The judge did her job well, she applied the law correctly. She had no choice, I believe. The law is the law. You can say it is stupid, and maybe it is, but it is not the judge’s fault. She is bound by it, it is very old and she cannot change it.
    So, to be fair, and true, it seems to me there is no evidence yet of deviation from the norm of what the law demands in favour of Pistorius.
    However, that opinion would change, perhaps drastically if Pistorius does not receive a long prison sentence for his culpable homicide, I believe.
    In a sense, it doesn’t matter much that Pistorius couldn’t have been convicted of murder, for those who still believe he intended to kill someone. Proof of foresight or intent can be impossible. (Though if you believe he intended to kill Reeva Steencamp rather than an intruder, that’s a different matter in considering what “matters much”. Evidence as to that was not strong enough though.) It doesn’t matter much, because, as the judge said, “culpable homicide is a competent verdict”.
    It must be VERY competent to deal with four shots fired into a small cubicle, when the accused didn’t think he would kill someone.
    The thing is, for such behaviour, the only possibilities could be that, whatever the details of the verdict, Pistorius would have to be locked up in either a prison for a long time, or a mental sanitorium for quite a long time. It IS such gross negligence – to fire 4 shots and kill and not know the likely consequences. If the accused is not mad, it seems unlikely he would not receive at least 7-8 years jail term, but probably longer, up to the maximum. He has already received a mental health assessment by professionals about the time of the shooting. Their conclusion was that Pistorius was fully sane.
    So, it is interesting, that leaves out the possible sanitorium sentence.
    The only thing left seems to be either a very long prison sentence for culpable homicide. However there is still the possibility that if Pistorius was not fully awake could have meant he was not insane but did not know really, fully know what he was doing: reduced negligence. This did not really appear much during the trial. But, as murder has not been able to have been applied, it is a very serious point. I think the law says that “one wakes up immediately or within seconds” still. However there may be good reason to doubt this.
    Perhaps there is a possibility that it can be examined post-trial if Pistorius may appeal the sentence rather than the verdict. However it seems that Pistorius must be going to receive a long prison term for culpable homicide.

    • DJ says:

      Just saying “it has not been proven” is a bit like waving a magic “reasonable doubt” wand. She gave no specific reason, except a controversial one, why it had not been proven.

  17. DJ says:

    If someone admits an attack resulting in a fatality it is of paramount importance that they be required to explain how, honestly. It cannot be accepted that you can admit to causing a death, be enigmatic in the courtroom, leaving the judge to “conjecture” why you did it, and on that basis, escape a murder charge.
    Concealment of your intentions needs to be sufficient for the presumption of some kind of murder.
    This is the only means by which to protect people from similar attacks.
    Was the question of ‘onus’ in self-defense plea, no other witnesses, dealt with correctly in the judgement, in the South African legal context? It seems to have been breached in that you can conceal why yet plead it and not be charged with murder. That would appear to be a failing. Gerrie argued Oscar could prejudice himself if he ‘chose’ to testify. Should it have been stated more strongly than that e.g. he WOULD prejudice himself if he did NOT testify and that he WOULD if he FAILED to explain WHY he shot the person.
    What are the guidelines? Oscar seems to have been given a pass here. I just can’t accept you can choose to be enigmatic as a defense to a murder charge. Something has gone wrong with the onus…

  18. Julia says:

    Marinda and Riana Brown,
    Re: assessors. As I understand it, the assessors help the judge with only the actual facts of the case and not with the points of law. In other words, the assessors could have disagreed with Judge Masipa on some point of physical evidence (were Reeva’s jeans on or off the duvet for example or was the light on or off, etc.). If both assessors disagreed with the judge about some such point they could have over ridden her even if she saw it another way. However, when it comes to the rules of law, it is all down to the judge and the assessors have no say in that. Hopefully I have understood this correctly!

  19. Carmen says:

    Professor Grant,
    Interesting, during the trial, I thought I heard you say that you would not say whether Mr. Pistorius was guilty of murder or not because Judge Masipa was in a better position to evaluate as she had all of the evidence in front of her.
    Now that the trial is over, are you also of the position that he is a murderer?
    Thank you

  20. Jan says:

    Dear professor, i share the argument that the judge failed to adjust her dolus eventualis test to take into account the error in persona.
    I am not familiar with procedural law in the common law system (because i study in Germany) and would appreciate if you could give me your view on the following thought:
    Could the argument be made, that – as an inevitable result of arguing for dolus directus with Riva as object of crime – the prosecutor failed to submit evidence proofing that OP foresaw and reconciled with killing the imaginary intruder?
    And that therefore no factual findings were submitted to the court that would have allowed the judge to determine beyond reasonable doubt that OP acted with dolus eventualis with the intruder as object of crime? So that ultimately the judge was right not to explicitly consider if OP acted with dolus eventualis in relation to the intruder?
    Thank you!

  21. Carmen says:

    Professor Grant,
    So the question is, in your professional opinion, what do you feel are the chances of this verdict being overturned and justice being served?

  22. Leon Rorich says:

    What is the difference between this case and a former Springbok player shot his own daughter? There wasn’t even a court case
    Also, the Waterkloof 4 ?

    • DJ says:

      In Oscar’s case there were numerous reasons for a trial:
      1. No other eye witnesses
      2. The target was locked in a cubicle, with her phone, at 3 am in the morning
      3. He shot four times, not once
      4. Ballistics revealed that the shots were in a sequence from hip, to head wound
      5. A loud female was heard arguing in the hour beforehand
      6. Oscar fired for ‘no reason’ (his own words), or ‘because he heard a movement’ i.e. just because of a mere sound. It wasn’t like the door suddenly opened. The cause of the shooting is even now unclear. It was a ‘wood noise’. What wood noise? How do you defend yourself through a door? There was NO intruder. So prima facie, he could be making it up. Even now, this barely seems to make sense, to me, anyway.
      7. Messages show clearly that their relationship had problems at that time
      8. Oscar subsequently was proven to lie in court, for example, about the shots going off ‘by accident’
      Now you could argue that all of this does not matter, and the verdict is correct. But it would be foolish indeed to take a man’s say-so about a ‘perceived intruder’ if there is no other evidence for it except his words. And the only other evidence is a girl with MULTIPLE gun shot wounds.
      With the Springbok player:
      1. There were other eye witnesses
      2. The target was driving away from his house in his car, not trapped in a small space
      3. He shot once
      4. So there was no sequence, from a first injury, to a last, fatal, one
      5. It was clearly not a domestic situation: it was his own daughter driving away, no one would want to deliberately shoot their own daughter like that, whereas someone ‘might’ want to shoot their partner
      6. The cause of the shooting was clear. There was a car, it was driving away. In Oscar’s case, it remains unclear. The judge was even left to ‘conjecture’ why he fired four times. i.e. Oscar did not explain it to her. We still do not know the answer, even though Oscar, the man that fired the shots, has given his story. Why are we left in the dark, even now?
      7. There was no question of any animosity between father and daughter.
      8. Perhaps there should have been a charge anyway, as there can be no justification in my view for firing so hastily, even if the result is the death of your own daughter.
      South Africa has one of the world’s highest homicide rates. A starting point to reducing that would be to prosecute the illegal use of fire-arms, in my opinion, regardless of the resulting tragic effects.

  23. Riana Brown says:

    What I am failing to understand is how the Judge can make these errors whilst being assisted by 2 assessors? As far as I know both the assessors concurred. I am currently a first year LLB student, and I find it very intimidating that the difference between a murder conviction and negligence is so paper thin! Also how so many experts differ in opinion. One would think that something like The Law would be easy to understand, but this case makes it seem almost impossible to grasp. Is there ever really a feeling that justice prevailed? Cause this case seems to rely a lot on what was going through his mind at the time. Did he foresee the death of a human being before firing the shots, who will ever know? How do you make a decision if that is the main question to be answered? Criminal law is definitely challenging!
    Thank you for your insights, great to have a platform like this to learn from.

  24. DJ says:

    I believe the panel has conceived of the offense as a ‘premeditated’ culpable homicide in which Pistorius deliberately set out to immobalize the intruder by firing across the door at waist height. If this is the case, that he was fixedly and deliberately trying to “strike a blow” in the waist region, then there may indeed be no foresight he might kill. Because his plan in mind is in fact to disable rather than to kill. The intent to disable is specific and may exclude the consideration it could result in death.
    It is a bit like if someone would deliberately shoot another person in the lower leg, in order to hurt them. It would exclude dolus.
    By comparison if they would fire a number of rounds indiscriminately at a person, the probability is very high indeed that it occurs they might kill the person.
    Considering Masipa’s remarks in the judgement, I believe, though some references are careless, that this is the source of the reasonable doubt:
    Here are some of her findings:
    – he “struck a blow” on the intruder
    – it is clear the accused was not candid about his ‘intentions’
    – he was ready to fire in the bedroom
    – it was not a startle, we can tell that from the angles: Meaning, the angles show evidence of his deliberation i.e. to fire at waist height.
    The last part settles it in my opinion that this is what they have concluded about his actions. So that is why he might evade giving straight answers, in order to avoid the inference that he intended to wound the person in there. Which is a very serious finding! If so. It is not even reckless. It is rather more deliberated.
    Interesting situation here: Pistorius can escape dolus according to expected outcomes, but at the cost of a clear plan to strike with intent at waist height that person.
    How is that likely to affect the sentencing if so?
    He was in addition disregardful that the person would be likely to fall down into the path of further bullets, as in fact happened. He confesses to becoming “aware of the enormity” of what was happening during the shots. Since there were no cries and no further movement afterwards, he must in all probability have made an inference about what had happened.
    Do you think this could be their model of the offense which allows a reasonable doubt about dolus eventualis?

  25. Harriet says:

    Thank you for this very clear & helpful piece. Could you tell me when we are likely to hear whether or not the state will appeal? Many thanks.

  26. dion says:

    Hi James
    Thanks as always for such a detailed and dare I say simple post. I could cheekily say that should go into educating our future layers.
    I have a few questions for you:
    I quote judge Masipa: The question is: 1 Did the accused subjectively foresee that it could be the deceased behind the toilet door and 2 Notwithstanding the foresight did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.
    The answers to these questions are both NO. But I fail to see why it relates to Reeva, surely this relates to premeditated murder of Reeva. The question is not Reeva but any person who is behind the door. Once the premed was off the table, her questions and logic shouldn’t relate to Reeva but to whoever is behind the door.
    I quote Judge Masipa: Counsel for the state submitted, CORRECTLY in my view, that if the accused never intended to shoot anyone, he cannot rely on a defense of putative self defense.
    What exactly was OPs defense? I have read the judgement a few times and the more I read it the more confused I become.

  27. Bryan Davidson says:

    Does it mean that if the State is unsuccessful in their attempt to appeal, that Masipas interpretation of Dolus eventualis will be stuck in the law books and that the lower courts will have to abide by her interpretation? Wouldnt that mean that an accused in a similar position as Oscar will also only get Culpable homicide for a similar offence then?

  28. Juliet says:

    What a brilliant explanation. This is how I have always understood the law, and this is why I was SOOOO confused while listening to her judgment. Best article on the topic to date. Her judgment did not make sense, and I picked up a lot of contradictions. If OP seriously gets away with this with just a slap on the wrist, then I do fear for the future of SA crime. Really and truly.

  29. HelenUK says:

    That makes total logical sense & I think that, actually, that IS what a lot of people are saying….”Oh, well, she MEANT that he didn’t intend to kill anyone, and that includes the intruder”.
    I am not entirely convinced she did actually mean that. Her reasons (or at least one of them) for concluding that there was no intention to kill/hurt is his crying and praying to God afterwards. While this might, perhaps, suggest he didn’t mean to kill Reeva – it says nothing about whether he meant to kill the intruder. Does she think that he’d have carried a dead intruder down the stairs, tried to revive him/her, cried and prayed to God? Well, it’s possible, I suppose, but it doesn’t seem very likely. His distress was because of the “mistake” – which there wouldn’t have been if it actually had been an intruder in the toilet.
    Also…”previously consistent statements”. If this can’t be presented as evidence, why is it that the court can use this as evidence anyway? Probably a fine legal distinction that escapes me. Can anyone explain?

  30. marinda says:

    What about the two assessors? That means they are in agreement with her, or not that much of an opinion/say?

  31. marinda says:

    What about the two assessors? That means they are in agreement with her, or not that much of an opinion/say?

    • DJ says:

      The assessors help the judge to determine the circumstances of the offense. They rule on the facts. That means every day after evidence they would debate in chambers and try to figure out firstly if they can prove the row with Reeva or must accept the intruder, and secondly how much if anything has he concealed about the intruder. So they would, probably collectively, arrive at a model of the circumstances, though any of them is free to differ to the others views. So for example the factual finding “did he have foresight he might kill, knowing the intruder was there, based on his firing pattern” is free for each panel member to consider. however the legal finding, e.g. are the conditions for dolus eventualis both satisfied, is up to the judge to check.
      Unanimous conclusion suggests they probably were in agreement about a particular scenario in the end. But exactly how the debating dynamics played out and what each member’s perspectives were on each part of the case we will never know! It would be interesting to know which were the more powerful voices and what their perspectives might have been as the two cases unfolded.
      It did cross my mind that Masipa might have found herself outnumbered by ‘factual arguments’ – which she cannot do anything about – and having no option due to the majority verdict rule, have thrown the state a lifeline to take the matter up with majority conclusion.
      Who knows, honestly. 😉

      • DJ says:

        Edit above: ‘and having no option due to the majority verdict rule, have thrown the state a lifeline to take the matter up with another panel who may reach a different majority conclusion’.

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