The Oscar Pistorius (op) Trial has received massive media attention. Of that there is no doubt, however, there seemed to be sufficient doubt to avoid a murder conviction.
Be that as it may, I do not agree with the verdict (the murder charge). In South African law murder is a common law crime –“the unlawful, intentional killing of a human being” seems simple enough? Well it is in most cases. The learned judge did delve into technicalities relating to the identity of the persons being killed ect.. in my opinion this does not take the matter further, in fact it just confuses the issue.
The issues relating to the murder charge are simple (in my mind anyway). On his own version (op) he explains how he shot the “intruder” … “I believed that when the intruders/s came out of the toilet we would be in grave danger…. I fired shots at the toilet door..” NOW! Before I continue into common sense world, let me first explain something: In our law you cannot simply fire bullets at someone(defend yourself) unless your life is in imminent danger, as in you are under attack. In op’s case he is clearly not in imminent danger… obviously. I leave that to resonate in your mind for the time being.
Right! Back to common sense world! As op said himself he shot at the door, now let’s look at what he says in comparison to the objective facts. We have a small cubicle (the toilet), he believes there are intruders in it… picture it… at least two intruders in that small space. Got it?? Good. Now if you shoot four times into an area you KNOW to be small, and you know that there are people inside that small space, and you know there is no place for them to hide/escape your bullets what do think is going to happen? 1: the people could get severely injured? Ya maybe.. 2: you could possibly kill one of them? Probably/maybe or 3: you miss both of them and injure nobody, that’s why you fired 4 bullets. I will leave that to you to make your own mind up. Also keep in mind about what I mentioned above, relating to being in imminent danger. People who lock themselves behind doors are not normally a danger to you are they?
Ok! Let’s skip the “unlawful” part of the definition of murder for now, it’s important, but because of the verdict given I will avoid this for now.(I will add to this once the appeal is lodged)
Moving onto “intentional” to wit, the intention to kill. A lot has been said about this, especially regarding dolus eventualis – “ Definition- A person acts with dolus eventualis if the causing of the forbidden result is not his main aim, but (1) he subjectively foresees the possibility that, in striving towards his main aim, his conduct may cause the forbidden result and (2) he reconciles himself with this possibility.”… lets take a look back at the toilet scenario above, do you think it was a possibility that by shooting four times into the small cubicle that someone could be killed? (remember, the question is not about Reeva, it could be ANY person) once again I leave that to you to judge for yourself.
Let’s take a real case example from South African case law – S v De Oliveira 1993 (A), the upper case A stands for Appelat Division, now days known as the Supreme Court of Appeal (SCA). Here is the outline of the case (take note of the similarities between this case and op’s case) – “Principles dealt with:
- Mistake relating to a ground of justification
- Putative private defence
X lived in an area where many housebreaks occurred. He thought someone was trying
to break into his house, when in fact they were just trying to gain the maid’s attention.
He fired 6 shots directly at the men without firing a warning shot, killing one of them.
He was convicted of murder and attempted murder and here appealed on the basis
that the state had not proved beyond a reasonable doubt that he had subjectively had
the necessary intent to commit the crimes.
The appellant was held to have had they necessary intention to kill in the form of
dolus eventualis and his appeal failed.
Once again I leave the rest to your own judgment…
It should now be clear to even the most basic of layman what the requirements are as regards dolus eventualis.
Do not let people confuse you with fancy terms, and other legal jargon. If this case was just another joe soap, op would be serving a 20 year sentence already. The facts are clear as day. It does not matter who was behind that door. In our law you cannot simply fire at will because of some perceived danger. Your life must be in imminent danger. People who cower behind locked doors are not a danger to you, you have other options, phone security, police, get out ect.. he chose to shoot!
This has been held in our Supreme Court of Appeal as far back as almost 100 years, the common law in the case above deals with this problem and it has been unanimously approved by our Supreme Court!
I continue… a lot has been said about his intention and that is subjective (intrinsic/ inside his head), which can be difficult to prove, especially since most accused don’t admit to intentionally killing people. Our courts have developed ways of proving intention by the following: “A court may base a finding that X acted intentionally on indirect proof of intent. This means that the court infers the intent from evidence relating to X’s outward conduct at the time of the commission of his act as well as the circumstances surrounding the events” – Unisa study guide criminal law.
Let’s apply this to the current case. Op by his own admission says he shoots 4 shots through the door, at the perceived intruders. Who are in a very small space, with nowhere to go… now the question is: if a person shoots four times into an enclosed cubicle as small as the one Reeva was is in what are you trying to achieve?? What is your intention? Let’s take a look again at what the court should do – “the court infers the intent from evidence relating to X’s outward conduct at the time of the commission of his act.” What evidence do we have relating to “x’s” (op) outward conduct at the time of the commission of his act?? Any guesses? That’s correct sir!! Mr OP’s own admissions, by his own version he is creating the inference. He says it in his bail application affidavit, which was read into the record and is therefore evidence. I will attach the bail affidavit for your perusal.
Some have also averred that there can be no appeal to the SCA because the appeal would be based on facts, which the SCA will not allow… I disagree on this too, the appeal in my mind will be based on an error in law – pertaining to the interpretation of the dolus eventualis principle.
TO BE CONTINUED..
Make up your own mind….
attached please find S v Pistorius judgment s v pistorius
and his bail affidavit 130219oscar_papers (1)