Tomorrow’s Supreme Court of Appeal judgement in the Pistorius appeal is crucially important for South African law of evidence and criminal law.
It will decide whether the State can appeal on a question of law even if the trial court convicted the accused on a competent verdict (such as culpable homicide when the main charge was/is murder). The decision in the 1982 case of S v Seekoei (AD) precludes such an appeal and before the SCA addresses any issue of any substance, it will have to decide whether Seekoei was wrong. Only if it decides that Seekoei was indeed wrong, can it engage with any of the substantive questions before it.
Assuming it decides Seekoei was wrong, we should expect clarification on the following issues:
  1. How circumstantial evidence must be dealt with – whether a piece of circumstantial evidence can ever be ignored and, if so, when.
  2. The distinction between questions of fact as opposed to questions of law. This distinction is not easy particularly when it relates to rules that govern what a court may do – that is, in respect of rules evidence and procedure. It may be helpful (following decisions such as Basson CC) to regard questions of fact as an attempt to identify a state of reality – for instance, whether someone did, or thought something. Questions of law pertain to the standard of conduct that one must observe – what it is that a person must not do or must do. This seems to apply equally to procedural issues, such as what a court must and must not permit in proceedings before it.
  3. It can also be expected that the court will define and explain the difference between a defence of involuntariness as opposed to one of putative (mistaken) private/self defence. If the court follows the decision in De Oliviera, it is likely to distinguish the two on the basis of whether, for putative private defence, the accused was thinking, but mistaken in his thinking; whereas, for involuntariness, the accused was not thinking at all, or, at least, his thoughts did not direct his conduct.
  4. It will also clarify the concept of dolus eventualis, in particular, as applied to scenarios of error in objecto and scenarios of putative private/self defence. In other words, the SCA will clarify the requirements for an accused to escape a conviction of murder (or any crime requiring intention), in a scenario in which s/he was mistaken both as to the identity of the actual victim and as to whether s/he was actually entitled to kill that person.
  5. We will hear whether the court confirms that, a defence of putative private defence must fail, when dolus eventualis is sufficient for a finding of intention (as it is for murder), if the accused had foresight of the possibility, at the critical time, that any of the requirements of private/self defence may not be have been satisfied. The significance is that the true defence (that is, not the “putative” mistaken defence), requires, for the defence to succeed, that:
    1. The accused was under an unlawful attack;
    2. That the attack had commenced or was imminent;
    3. That the attack was directed at an interest of the accused which he was entitled to defend;
    4. That force was necessary to repel the attack;
    5. That no more force than was necessary to avert the attack was used, and that in any event, such force was reasonable given the circumstances; and
    6. The force used was directed at the attacker.
A defence of putative private defence is that, while there was, in reality, no valid claim of private defence, the accused was mistaken so that s/he believed that all requirements were satisfied.
We should expect the SCA to confirm that the defence of putative private defence must fail if there is dolus eventualis (forsight of the possibility and reckless persistence) relating to any of these requirements. In other words, that the defence must fail if the accused foresaw the possibility (and persisted nevertheless), that any of the requirements may not have been met. Thus, the defence must fail if the accused foresaw the possibility of all or of any of the following:
  1. That s/he was not under attack;
  2. That no attack had commenced or was imminent;
  3. That there was no attack on a legally protected interest that s/he was entitled to defend;
  4. That no force was necessary;
  5. That the force used was excessive in the circumstances; or
  6. The force used was not directed at the attacker.
If the court confirms this, the claim of putative private defence must fail.
There is alot at stake in the Pistorius appeal decision. Anyone interested in criminal law and procedure and the law of evidence will do well to pay close attention to this judgement.

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