oscars verdict vs reality (UPDATED, INCLUDES JUDGMENT AND BAIL AFFIDAVIT)

Oscar1

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:

  1. Mistake relating to a ground of justification
  2. Putative private defence

Outline:

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.

Outcome:

Smalberger, JA

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….

tlg

attached please find  S v Pistorius judgment   s v pistorius

and his bail affidavit  130219oscar_papers (1)

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10 comments

  1. My lecture once said ‘law is an ass’ and u can beat it in any direction u so wish…no time to complain.let’s let the rule of law to rein…for the love of law. Amen

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  2. Let’not forget an important detail. OP and Reeva were not alone in the house that night. Oscar’s houseman Frank was (asleep?) in his room downstairs. What was his job; was he there as a handy man and /or bodyguard? Did he have a weapon? Was it his ammo in OP’s safe? Why has he been airbrushed out of the story/ equation? Certainly having an able bodied man downstairs should have eased some of OP’s fears.

    I live in the US and we know guns. The idea that you fire at an unidentified target behind a locked door is ridiculous in the extreme — especially when you factor in that OP failed to ascertain where the TWO other people in the house were. In the US as in SA you can only use deadly force if your life is in imminent danger. If a real intruder is in your house and leaving with a bag of your belongings, you cannot shoot this person in the back. They have to be coming at you. If the intruder poses an immediate threat, you may fire only until the threat is neutralized, that is, when the target is down. Once your target is down you cannot continue to fire. If the intruder is not left to tell the tale, an autopsy can usually determine if excessive force was used. You only want to be left with one side of the story, so the first shot should be your best shot — but shooting a moving target with a handgun is easier said than done — unless your target is locked in a confined space as Reeva was.

    Lastly, In a life or death situation – which is the only time to unholster and fire your weapon– do not fire a warning shot!!! Why, if your life is in imminent danger, are you wasting precious seconds and ammo firing into the wall? And — where is that bullet going to go? Into the neighbors house, or maybe hit someone on the street? A warning shot can also be construed as a wild shot or a miss. In the US firing a warning shot can get you arrested for unlawful discharge of a weapon or felonious assault.

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  3. Oh, and a few more things to ponder as you continue your narrative. As someone trained in the use of firearms, OP would know that in a home invasion, if you can’t get out, you keep quiet and take up a defensive position. This keeps your whereabouts unknown to the intruder, and the element of surprise on your side. Standing in front of a door where he believed a dangerous home invader was hiding and yelling, “Get the F out of my house” was downright suicidal!! This bit of stupidity is beyond belief. All the intruder had to do was follow the sound of his voice and shoot OP through the door!

    Another thing Masipa missed: If OP ordered the intruder to ‘get the F out of his house’, and the intruder was exiting the toilet, could it not be reasonably assumed the intruder was complying with his demand? Or look at it another way. I order a home invader to get down on the floor and stay still, they comply, but I shoot them anyway. That would be considered murder in the US.

    All this and we haven’t even touched on the absurdity that Reeva did not speak or scream. Masipa made a totally subjective judgement that Reeva did not scream contrary to medical and ear witness testimony.

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    1. thanks for your comments

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  4. What about S v Seekoei? No appeal because OP not acquitted but convicted of a competent charge of manslaughter? Prof James Grant confident this can be got round. Do you agree? And why?

    Also in my view – and I am not a lawyer, I am Jane Trialwatcher – there was a lot more wrong with Masipa’s Judgement than misunderstanding Dolus Eventualis. Could the state only appeal on dolus eventualis? And not in errors of reasoning to conclude the facts of the matter?

    I am curious to know, legal people agree that there seemed to be sufficient doubt to avoid a murder conviction (I take it you mean dolus directus). Can you kindly explain why you think so?

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    1. you said – “avoid a murder conviction (I take it you mean dolus directus). Can you kindly explain why you think so?” i dont mean dolus directus
      so i cant explain why

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  5. Thank you for highlighting the most important aspects of the case and for breaking them down as you so easily did for the lay man to understand. It was very enlightening reading this as a law student and learning about elements of the law of delict in practice. I also believe however, that perhaps a lesson that South Africa may take from this case is the correct handling of evidence as that is equally vital. The fact that the state had tampered with real evidence, I believe, may have also had an influence on the prospects of the state proving his guilt as although by his own testimony he alluded guilt, the rest of the evidence that was given by the case were mostly oral evidence which carry little probative value.

    Hopefully, the state appeals though as the s v pistorius case will form precedent for subsequent murder cases in South Africa and it is highly important that the judgement is put forward correctly.

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    1. thanks for visiting 🙂
      which country you from?

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cmon reply, it is more fun if you contribute :D

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