Pistorius – the absence of justice

The world has watched over the past several months as Oscar Pistorius has been tried for the murder of Reeva Steenkamp. Sean Middleton reports.

Debates have ranged far and wide over Oscar’s innocence or guilt, and whether he should be found guilty of murder or culpable homicide. With the verdict now in hand we all know that it is one of culpable homicide (manslaughter). Much criticism has been levelled against both Counsel and the Bench over the course of the proceedings and there seem to be more critics than legal experts.

I, for one, am glad that the trial is over. As both a Southern African advocate and an English barrister, I found conversations were always steered towards questions about Oscar’s guilt or innocence and whether or not I thought that he should go to jail. For the most part I avoided giving answers as to do so would have been just as emotive and unreasoned as any other person, not having access to the evidence.

Many people are outraged at a sentence of five years' imprisonment, which in real terms could be reduced down to approximately 10 months of jail time and the rest perhaps spent under some form of house arrest.

A legal analysis of why Pistorius was not found guilty of murder is a complex one. Some African law is based on Roman Dutch law. This is very similar to Scots law, a near cousin. Both criminal legal systems were founded on the writings of the Roman jurists and modernized in the 16th and 17th centuries by the prominent Dutch jurist of the time.  For many, the terms of dolus, mens rea, etc are all foreign. The South African High Court of Appeal has, over the years, given opposing interpretations of these very technical terms. What is common between the Anglo-American legal systems and South Africa is that where a person has not formed the intent to kill another person, they cannot be found guilty of murder.

At his bail hearing Oscar admitted to the shooting of Reeva. From this point on, the question was whether or not Oscar had a defence. What defences were available to him? The only viable defence in South African law where one person shoots another person is that of private defence (self-defence). This test is objective and the person must have been facing a life-threatening situation. Secondly, for self-defence to succeed, the taking of a human life must be a last resort. In other words if somebody had an alternative option open to them, such as subduing the other person or fleeing, then killing one’s assailant would be held as disproportionate force.

Much was said at the beginning of the trial about putative self-defence. This is a subjective test where it is argued that the person believed that they had no other option but to defend themselves to the point where they took another person's life. Case law shows that this has never succeeded in South Africa and first came before the Appeal Court in S v  De Oliveira 1993 (2) SACR 59 (A). It has been subsequently argued in at least three other cases and rejected.

Prof. C.R. Snayman, in his book on Criminal Law (5th ed), comprehensively discusses mistake and transferred intent, concluding that transferred intent has not featured in South African criminal law since the 1950s. Mistake cannot be pleaded successfully in the case where a person intends to shoot one person and then shoots another. In other words if X intends to shoots Y, but fires and hits Z he is still answerable for Z’s death as if he had shot and killed Y. The test is whether there was negligence in the killing of Z. Mistake can act as a defence, for example, in the case where A throws a javelin and it lands up hitting B, because B ran onto the sports field. If A could not foresee that the javelin would hit B then in South African law A has a bona fides defence of mistake.

Intent (dolus) is a cornerstone of South African criminal law. The State could not prove that Oscar intended to kill Reeva and therefore murder in a technical sense cannot succeed. As we have seen, the Court found him guilty of Culpable Homicide. This is the negligent killing of a human being. If we stop for a moment and take Reeva out of the equation and replace her with another person, an “unknown intruder”, Oscar would still be negligent because he fired through the bathroom door without calling out and asking who was there. For self-defence to succeed, the assailant would have to have been in the actual room posing a real threat.

The very last possibility of a defence could have been mental illness or diminished capacity. Perhaps Autism (involuntary act) may have been argued as a defence. These types of defences require solid medical evidence to demonstrate that at the time the accused was not in control of his/her actions. The burden of proof then shifts to the Defence to prove the accused’s incapacity to act voluntarily and/or understand his/her actions. In terms of s78 of the Criminal Procedure Act of 1977, a person found mentally ill can then be institutionalised for an indefinite period. Unless there was compelling evidence, any Defence Counsel worth his / her salt would avoid pleading this.

So can we conclude, as Masipa J did, that Oscar was negligent in killing Reeva?

I, like many South Africans, carried a concealed firearm day and night and, like many of my fellow countrymen, have left South Africa for fear of being a victim of a violent crime. I lived in a prison which I called home and was in daily fear. This is life in South Africa. Criminals are indiscriminate. They care little for your ethnicity, sex or religion. Remember the case of Brandon Huntley who was granted Asylum by an Ottawa Immigration Board that found "clear and convincing proof" Huntley was persecuted for being white. This was in 2009. While there may be a perception amongst criminals that whites are still the rich minority, all South Africans are at risk. On the 18 October 2007 Lucky Dube, a well-known black South African pop-artist was carjacked and killed, in error it seems as it was simply the case that his car was on a “shopping list”.

Sadly, one becomes numb to the death, violence and danger living in South Africa. I now look back with shock and horror to what I considered “normal” while living in SA. The average “reasonable South African” may well have shot first and asked questions later. This is no excuse or defence for Oscar’s behaviour, but in a country whose law places such importance on the intention (dolus) and the mental state (mens rea), as a jurist, I must pause for thought. The maximum sentence in South Africa for Culpable homicide is 15 years incarceration. Was the sentence handed down appropriate? That is a question that deserves an article in itself.

I was fortunate some months ago to attend the South Eastern Circuit’s annual dinner and listen to Sir Sidney Kentridge KCMG QC speak. He recalled his life at the Johannesburg Bar during the 1950s-1960s and his part in the Treason Trials of the leaders of the ANC. What struck me was a statement that Sir Sidney made, which went along the lines of: “Sometimes it is difficult to say what the law is, but it is clear and easy to recognise when it is absent.”

Perhaps in some way the Pistorius Trial highlights moments of the law being absent for both Oscar and Reeva.

Sean Middleton, Middleton Chambers

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Sean Middleton

Sean specialises in Commercial Law and Private Crime. He periodically returns to South Africa on Brief. His main focus is on his English practice with the recently establishment Middleton Chambers.