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.
  1. Emma H says:

    I was wondering about the points on which OP is appealing to the COnsitutional COurt re the factual findings of Masipa essentially being overridden by the SC.
    That is, the factual finding that OP didn’t intend to shoot Reeva. I’m thinking the SC judgement dealt with this by saying the circumstantial evidence was not all taken into account (issue of law), so the (incorrect) inferences of Masipa can be overridden by new ones.
    The defense arguments (if they are reported correctly re the COnCourt appeal) confuse the crap out of me. The SC judgement was so simple and easy to understand.
    Does anyone have thoughts on OP’s appeal points for the ConCourt?
    and their likelihood of success to be granted leave to appeal?
    (although success to Oscar is to delay jail, so he’s got that one in the bag)
    I’m amazed that OP has never taken responsibility for anything! Most of us would feel terrible and face punishment knowing we did something wrong. That he’s loving is luxury free to leave his mansion now is somewhat irksome. I just couldn’t help add that.

  2. arranyoung says:

    Someone who has escaped remarkably unscathed in this whole process is Professor Jonathon Schultz. Although his report admits he did not even DISCUSS the shooting itself with pistorius, and shows almost no evidence of engaging with the actual testimony, less still the wider evidence of the case, it was the Schultz report which allow the notion of “genuine fear for his life” to persist right through into the Trial Judgement.
    This was even inspite of tests disproving GAD.
    The pyschiatrist was remiss in not attempting to cement his conclusions in terms of actual trial evidence, and should have averred from any positive finding of this type in favour of an accused who will not talk about an incident in detail. There is no “forensics” in Schultz enquiry – simply a rather fanciful theory of “2 oscars” – which you will not find in any psychiatry manual of course…
    The trial judge and assessors unfortunately laid a lot of their “faith” in Oscar’s innocence on this one “report”. Its a shame Nel and team did not analyse in a more painstaking way the faults in this SChultz inquiry. To set them all out in clear terms before the Trial court would not have done any harm.
    Because as it stands the “factual” basis for any kind of “honest and genuine PPD” as based on Oscar’s own evidence would be totally absent, but based on Schultz report, defense might still argue there is some “factual” bases which went before the original court.
    Its difficult enough to separate questions of “law” and “fact” – let alone to further separate questions of “enquiries into states of mind” – and who should defer to whom (should the psychiatrist have to convince the court they studied the case thoroughly enough (pretty sure Schultz didn’t), or should the court have to defer to the “medical expertise” of psychiatrist?).
    This is a very blurry area, but one which surely will come to play more and more of a part in evaluating “states of mind” which allow to test whether criminal responsibility was present in wide variety of cases.
    I would have liked the prosecution to deconstruct a lot more rigorously the Schultz report and also to set forth argument as to why “one psychiatrist opinion” does not have a lot of bearing, in case where the psychiatrist fail to critically analyse actual trail evidence.
    I would have liked the trial judge to show evidence of weighing up such a report, in direct comparison to the analysis of the shooting itself, aswell – and to say it can never be a substitute for that evidence, under cross-examination – in short, “good personal impressions” by psychiatrist cannot overcome “cold logical problems” with an evidence given in a court.
    I would have liked Supreme Court judges to distinguish aswell the two kinds of “factual” evidence which might be supplied to support PPD, firstly, the direct testimony of the person who fired (which in this case was terrible), and secondly the subsidiary evidence provided by defense (for example Schultz report).
    Because at the moment we have a state of conflict – factual findings deriving from a psychiatrist and accepted by a trial court – are overturned because such factual findings conflict with the rest of the case evidence.
    So i suppose in the end this is interlinked to the question of evaluating all of the circumstantial evidence as a totality. And only focusing in on some pieces which support a finding (such as “schultz report” supporting “Honest, genuine fear for his life”); at the exclusion of other pieces (such as the numerous inconsistencies/absurdities in his direct evidence relating to the detailed reasons for shots fired).
    Unfortunately in original trail the two parts of the totality were allowed to drift apart, since Shultz was able to comment “authoritatively” on case but also admit he “did not discuss incident” or read court record (lol). This OUGHT to have lead to his “2 oscar” theory, which sounds fanciful and has no backing in any psychiatry manuals, being down-graded to the level of an “opinion” – as Nel dismissively described it – but instead it was accepted as a genuine “expert perspective” in Trial Court…leading to “honest, genuine fear for his life” being accepted in spite of abundant other evidence making that conclusion very hard to believe.
    There is a real question how much bearing psychiatrists should have on trial courts, and better guidance on how they should approach process of commenting on criminal matters should be provided. A judge should not be satisfied with “expert” opinion unless the “expert” shows sufficient acquaintance with the DETAILED circumstances of a case!
    This might have avoided a lot of the nonsense to do with sympathetic reading to the idea of defending yourself with heavy artillery through a locked door against unseen threat…

    • arranyoung says:

      Correction: Schultz read court record but never quoted it or criticized it or provided any kind of explanations or counterarguments to the problems in it.
      What he did not read was the state case DOCKET.
      Only the panel of three requested that. So he wouldn’t for example have seen the photographs showing the size of the cubicle, which made such strong impression on Justice Leach, for example.

    • arranyoung says:

      What do you make of Kelly Phelps comment in press that more than DE clarify, the “reversal” of the factual finding of PPD was a major point in Supreme Court findings?
      Its certainly left some commentators online pondering. I hope that the above remarks about Schultz help to point the way to clearing up that aspect.
      It can be seen in light of prosecution appeal point [2] – improper evaluation of circumstantial evidence – in short, Mangena evidence being set aside – such that – an aggressive shooting posture and significance of multiple shots ignored – and in addition – lack of RS being able to kick magazine rack – not even mentioned – leaving defense unable to explain what caused the alleged “sound trigger” for shots.
      Instead, Trial court accept “opinion” of psychiatrist who did not conduct any interview about shooting itself, or examine crime scene photographs, but still purport to reach a meaningful “conclusion” pertinent to the evaluation of whether Oscar’s PPD was “sincere”.
      Sincerity is an attribute based on a combination of personal impressions and agreement with known facts and logic. Here, we clearly have personal impression – on both Schultz and Masipa, perhaps – outweighing the other known facts and logic.
      How best to express that in terms of “appealing on points of law”, though? I suppose it can well be argued that the evaluation of the PPD by Trial Court must fail because they ignore Mangena evidence and numerous inconsistency/anomaly in direct evidence – so that the factual finding can be struck off, because the judicial “weighing process” itself was conducted poorly. A good deal of heavyweight forensic information and interrogation was left aside in reaching the “factual finding” of PPD
      Certainly it provoke a question as to the Scope of an Appeal Court to interfere in original case. Because if the original judge’s “evaluation” of evidence types is suceptible to review, then indeed, this could affect almost any aspect of reaching factual conclusions too!
      Wondering if a wider impact of this case is to reduce the restrictiveness of the distinction between questions of fact and of law, therefore? The “principles pertaining to evaluation of circumstantial evidence” can certainly be read quite widely, and in such a way as to bring under the spotlight ALL of the trail judges original decision making, potentially…
      This is a good thing though: If reasoning is flawed, there should be a way to appeal it. Humans make errors and these errors are much more likely to be flagged up and corrected for if there is a mechanism to review.
      State doesn’t get unlimited chances to “try” the case though, and sometimes just has to live with scoundrels getting off. Or could endlessly drag an innocent person through the criminal system on some trumped up charges.
      A very finely poised case in that respect. Wouldn’t say the end of the road had been reached because the questions provoked by the possibility of review of circumstantial evidence at appeal are so broad in scope.
      Regardless on the final outcome, hopefully the most value for legal system can be derived from process, including, for example, clarifying dolus eventualis, or, i hope, clearing up to some extent the role of psychiatrist opinion in support of a PPD.

    • Arran says:

      Although not brough up in Appeal as a legal point, I do think there is a legal point / objection as to how the “evidential burden” for PPD was misunderstood by Trial Court.
      Many in online community treat the case where ONLY the motive remains to be decided as the same type of enquiry as the case where the PERPETRATOR of the actions is also in doubt.
      And so allow the motives part to remain utterly SHROUDED IN MYSTERY as some kind of “legal right” for people who already admitted a lethal course of action. This is absurd.
      It was never really cleared up however: The case has often been discussed as if it was a whodunit rather than a whydunnit. So the starting point for many people’s thinking has been AS IF Oscar had as many legal rights remaining to him as though the police could not actually say for sure he had fired shots – including, the right to remain silent, the right to talk nonsense, and so on.
      Nel at times express it as if a lack of testimony by Oscar would not necessarily have prejudiced him, also; whereas I think it most certainly WOULD have – the “factual basis” referred to by Leach in his summing up would be lacking.
      The critical importance of the oral testimony part in “whydunnit” plus no other witnesses completely absent in any of the judgements so far. Leaving I am sure a good deal of confusion in people’s minds as to the full scope of a “defandants rights” (and expectations to be able to talk nonsense to judges, etc).
      Never really came out and still hasn’t been clarified, though. And many online still of the view the prosecution has to do all the work even in a PPD, and even in a PPD where the defendant actually compounds their alleged misfortunate with being totally inscrutable in court (or incoherent, or lying etc).
      I would say a very simple guideline should be that if u admit the course of action but then talk in riddles that has to work against u. And the “natural inference” that the circumstances are what they actually look like, rather than some alternative, improbable, version of events, should not be expected to follow in that case.
      There could very well have been a legal appeal on the grounds that the principles of “evidential burden” were misunderstood for PPD? Leading to allowing a testimony riddled with holes to support such a claim of “honest perception of threat”….
      I’m not sure how things stand if the prosecution didn’t actually appeal on that basis but Leach still bring up some of the issues in the Supreme Court judgement (to do with onus, factual basis, etc).
      Obviously PPD need a high benchmark to be accepted. I’m sure no rational court would disagree with that, and it would be in no one’s interests to allow vacillating defenses to be accepted in the general case…
      Where are the principles of “evidential burden” set out in South African law, though, in terms of which a judge such as Masipa could simply run through a list of checks to see whether or not the defense had done a good enough job in such case?

      • Arran says:

        Can see no way it would prejudice justice if in a “whydunnit” defendant has a responsibility, equal for every adult citizen of sound mind, to explain the lethal actions in a court.
        In other words, the “right to silence when accused by your state of a crime” (which could be on false evidence) is replaced by a “duty to explain your actions” (because the bulk of the evidence is already common cause, and all that remains to determine is your motives).
        I don’t see any particular reason why the burden should not switch in this way, in favour of a DUTY to say why u did what u did.
        There is no longer any question of state “having the wrong man”. No defendant can be prejudiced in that way when they already admitted everything (assuming it wasn’t a false confession, as we know in this case it was not).
        So this entire PPD issue should fall under “duty to talk honestly to explain what you did” rather than “right to remain silent and leave state to do all the work”. I’m not clear to what extent that is actually the case in South African law.
        Its clear Leach did mention defense responsibility to provide “factual basis” but the terms as to what that actually means, have not yet been defined.
        Nel himself seemed to agree that it could not prejudice a PPD defendant if he did not take to the stand: But if it would lead to a lack of “factual basis” for “honest, genuine” fear for life, then it is clear that it would prejudice to remain silent – as it should.
        All of this becomes much clearer to understand and explain if in a “whydunnit” there is a switch from “right not to talk about it” to an “expectation that you should”.
        And i can’t see any downside to that in terms of jurisprudence, either. Can you?

      • Arran says:

        So in conclusion
        1. It would be helpful to distinguish “factual basis” for being in fear of ones life, from direct oral evidence given by a shooter, from that from peripheral characters such as a psychiatrist (which is rather a perspective on the possible states of mind for an individual). And to think about how to ensure proper rigour both by the psychiatrist and by the judge in evaluating the psychiatrist evidence. It is my feeling that the psychiatrist need to demonstrate engagement not only with the person in a chat, but also with the facts of the case. Otherwise their input lacks rigour.
        2. This could have been brought out much more clearly in court if Schultz report had been cross-examined fully. It had many problems which could have been made quite explicit in trial evidence. would it have made any difference to the Trial court panel though? Input from Derman and Vorster made it into final judgement despite severe grillings.
        we can criticise the analysis in Trial Judgement til cows come home, all of which makes it clear that the state’s right to appeal, does, in some cases, need to be extended beyond merely points of law.
        Either that or the standard of training for Trail judges would need to be increased so that they are more competent to assess evidence.
        3. Would make sense if, without changing the onus of proof for the state one bit, nonetheless in case where a defendant admit lethal course of action themselves, there is the expectation as a part of the judicial enquiry that they would testify – and can be prejudiced if don’t do so, without a very good reason. So there is a duty to explain your actions: Can see no reason why adults should not have to explain killings to courts…
        Obviously there will be some exceptions
        (I) defendant is a child
        (2) defendant has a psychiatric condition or on heavy medication or is senile by the time of the trial, etc…
        Defense played a little with this idea, in terms of GAD and PTSD (each supported by 1/5 psychiatrists), and other specific aspects of cross-examination which might have impaired OP ability to testify either honestly or well eg Nel aggressive questioning, intense media scrutiny, suffering emotionally from killing RS, etc.
        All of these kinds of factors were struck off by both Masipa and the Supreme Court. But at the same time, the Supreme Court explain some of trial court mistakes in terms of intense media pressure, meaning we should be more “Understanding” of those errors.
        In this case objective facts circumstantial evidence and the STYLE of the bad evidence to my mind outweigh any of this “mitigating factors”. And to advance them would seem to be rather clutching at straws.
        But its possible to imagine much more finely poised and ambiguous cases where it really is not at all easy to determine just how poor a credibility finding may be before it fatally undermines the defense of PPD.
        One would have to say that it was probably poor enough in this case though, and if not, then it is hard to imagine just how bad it would need to be in general cases before a judge was not convinced lol.

      • Arran says:

        Plethora of defenses: As a matter of common sense, this should prejudice a defendant. Otherwise it would always pay to provide as many defenses as possible to a court, since it increases the chance that the state won’t be able to eliminate one of them. We can’t have that outcome. So a plethora of defenses must definitely prejudice the defendant who does that.
        It should be a really strict matter: Pistorius had a great legal team and plenty of time to prepare so no excuse at all for either him or his team to keep on changing tack in how they explained the firing.
        Very surprised the Trial Court would not assert itself more on this point and say it had been entitled to receive a straight answer.
        So that’s another respect in which state’s legal objection [2] can be seen to have succeeded in light of Supreme Court analysis. Because Supreme Court definitely shared the prosecutors dislike of the way in which so many different arguments were supplied that you couldn’t even work out what the defendant’s state of mind was anymore.
        It would be completely irrational to not penalise a defense case which was modelled along similar lines of adapting to the flow of the state case as it went along, and then summarizing it all at the end as though nothing had changed.
        Nel indeed drew attention to this phenomenon in his HoA at Trial yet it did not even receive a cursory mention in the Trial Judgement: IN fact, the Trial judge kept on re-iterating the point that the version had “never changed” – in direct opposition to the numerous changes before them in the court evidence and HoA!
        the result was the plethora and I am not at all surprised that the Supreme Court did not like it.

      • Arran says:

        And ok…easy to be an arm chair critic, much harder to get it right when in the hot seat with eyes of the world on the decision.
        I do feel a bit sorry for her from that point of view. Caught up in all this stuff……….
        There’s probably 100s of cases every day with massive legal and other reasoning blunders in them which goes totally unnoticed.
        And, this was a complicated thing, what with the screams evidence being at odds with phone evidence, and a fair amount of police incompetence and confusing psychiatric stuff into the mix.
        But, judgement means weighing both sides very carefully, so for every bit of evidence and counterargument there should be some analysis of that in the final judgement.
        Maybe this case should give rise to a more clear methodology of judging evidence? Something which magistrates and high court judges may refer to when finalising their conclusions – in order to make sure nothing glaringly has been omitted, for the type of case it is.
        Judiciary might find that kind of thing a little bit patronising but the scientific community has developed similar standards to guide their study designs as kind of flow chart of steps for reaching conclusion.
        As a citizen, it would perhaps be reassuring to know that some kinds of agreed upon standards for weighing evidence existed, rather than it being down to mere chance whether or not the judge is having a bad day or understands what some witness has actually said… ? lol.

  3. […] Source: What’s at stake in the Supreme Court of Appeal judgement in the Pistorius appeal. […]

  4. Rutendo Muchinguri says:

    Thank you Prof for this impeccable and informative analysis…It took me right back to 2012 in your Criminal Law class!!Very nervous about today!!

  5. saranerberg says:

    Thank you, Professor, for your analyses on this case. One can find plenty comment on its social aspects, but it is harder to come by detailed legal analysis. I am a lay person myself, but I am interested in law, and while I’m far from being able to appreciate every aspect of your posts, their cogency is clear and they are enormously helpful.

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