Pretoria – While Oscar Pistorius was spending his 49th day in prison, his legal team on Tuesday accused the prosecution of simply being unhappy about the outcome of his criminal trial – this was why it decided to turn to the Supreme Court of Appeal in Bloemfontein.
Defence advocate Barry Roux told Judge Thokozile Masipa in the high court in Pretoria that prosecutor Gerrie Nel was masking questions of fact behind questions of law.
In terms of the law, the State can only appeal when it feels that the judge had erred in interpreting questions of law. It may not appeal on factual findings made by the judge.
It took the prosecution’s Gerrie Nel about two hours to deliver arguments in which he asked the judge to grant leave to appeal against both the culpable homicide verdict and the five-year jail sentence, in terms of which Pistorius only had to serve 10 months before he was released on correctional supervision.
It took Roux only half an hour to counter the State’s arguments. His main point was that Nel hadn’t crossed the main hurdle by proving that he wanted to appeal on facts of law. Roux said all arguments which followed this were thus immaterial.
Nel told Judge Masipa that the decision to ask for leave to appeal was not taken lightly by the State. He repeatedly stated that he “respectfully” made his submissions, as he did not say the judge was downright wrong in her findings. “We just say that another court may come to a different finding than you,” Nel said.
Essentially, he argued that if it was found that Judge Masipa had wrongly applied the principles of dolus eventualis (that Pistorius should have foreseen that he could kill someone when he fired the shots), then the conclusion that he was guilty of murder was inescapable.
Nel added that dolus eventualis came into play here, as Pistorius had armed himself with the intention to shoot, walked to the bathroom and fired shots into the small toilet cubicle. He knew a person was inside and had nowhere to escape to.
Nel said another court may find that when Pistorius had armed himself and walked towards the bathroom with the intention to shoot, he already foresaw the possibility that death would ensue and he reconciled himself with this.
“Another court applying the principles of dolus eventualis may find that Pistorius had the intention to kill the person or at least accepted that he may kill the person (behind the toilet door)… If he did not intend killing the person, why did he shoot,” Nel asked.
Turning to the sentence, Nel said it was shockingly light and the judge did not take the gross negligence of Pistorius and the consequences of his actions into account when he shot and killed Reeva Steenkamp.
Nel said Judge Masipa stressed that Pistorius should receive a jail sentence, but she imposed the shortest period of incarceration she possibly could have imposed.
“We respectfully submit that the shortest reasonable period of incarceration for an accused (who) killed an innocent woman with gross negligence and whose conduct bordered on dolus eventualis is so shockingly inappropriate that another court may interfere,” Nel said.
In referring to the defence saying Reeva’s parents were satisfied with the sentence, Nel said the ANC Women’s League and other organisations demanded an appeal against the sentence.
Roux, in his counter-argument, said Pistorius did not receive a light sentence, as he will not be free after serving 10 months in jail. He will have to serve the remainder of his sentence under correctional supervision (mainly house arrest).
Neither Pistorius, nor any of his family, attended on Tuesday’s proceedings.
Judge Masipa will deliver judgment on Wednesday.