The State alleges Pistorius committed premeditated murder by shooting Steenkamp through a locked bathroom door in the early hours of Valentine’s Day last year after a stormy argument. Pistorius insisted he thought Steenkamp was a burglar and that her death was a “tragic accident”.
The State says that even if this was true, Pistorius still had the direct intention to kill a person and was guilty of murder.
Legal experts say even if the court accepts Pistorius’s claim, he would still have to prove that his fear was genuine and that a reasonable person would have acted in the same way under the circumstances.
Constitutional law expert Pierre de Vos said in his blog Constitutionally Speaking it was nonsensical to speculate if Pistorius would be found guilty of murder.
“The only thing we can be relatively certain of is that specific legal principles will play a decisive role in his trial.
“Forensic evidence about the trajectory of the bullets and other evidence at the crime scene could be important, especially if this contradicted his version,” he said.
De Vos said there could be no dispute that Steenkamp’s killing had been unlawful and it would be impossible to argue that Pistorius had acted in self-defence as no attack on his life had commenced or was imminent.
He said it would be difficult to escape a murder conviction unless Pistorius was found to have acted in putative self-defence.
Experienced criminal defender and former Acting Judge Advocate Johan Engelbrecht SC agreed. “There’s no such thing as ‘wrong identification’. Private putative self-defence excludes intention because the person does not have the intention to kill,” he said.
He referred to the case of Limpopo farmer Jewell Crossberg who shot dead a worker mistakenly thinking he was shooting at a baboon. He was initially convicted of murder but the verdict was altered on appeal to culpable homicide. The court found that the State had failed to prove intention but that Crossberg’s error was unreasonable because a reasonable man would have realised he was shooting at a human.
A more pertinent case is that of a 19-year-old Lenasia man who accidentally shot dead his father through a partially open door thinking he was an intruder. Judge Robin Marais in 1996 found him guilty of culpable homicide. He found that a reasonable man in the accused’s position would not have acted in the same manner, but that he had reasonably (though mistakenly) believed he was under threat and subjectively believed the force he used was commensurate with the perceived threat.
“The court has to look at the facts objectively and must make a finding if it was reasonable for the accused to think he was in danger.
“In a scenario where you hear a noise behind a door and fire a shot through the closed door knowing a human being is behind it and foresee the possibility of injuring a person, you accept the risk that you might kill someone.
If it’s totally unreasonable to think your life is in danger under the prevailing circumstances, it is murder. “However, if the accused thought his actions were reasonable but the reasonable man would have realised that his life was not in danger, then he’s guilty of culpable homicide.
“Murder is the intentional killing of a human being while culpable homicide is the negligent killing of a person.
“On the particular facts of this case (the Pistorius case) putative private self-defence has never been successful in a South African court where the accused fired through a closed door thinking his life was in danger. In this case the door was locked, so the intruder would have had to break down the door to enter the house.
“Subjectively he could have foreseen that his life was in danger, but that is not the test. The test is, if that subjective belief was objectively reasonable and if he could have taken other preventative steps.
“The law is quite clear. If you can escape the imminent danger without putting your life in danger you have to do it. If you kill a person it must be in such severe circumstances that there’s virtually no other way open to protect your life.”
A case often quoted is that of Antonio De Oliveira, who fired six shots through an open window, killing an employee, because he feared his life or property was in danger.
The Supreme Court of Appeal confirmed his murder conviction because there was no indication that any attack on his house was imminent and the reasonable man would not have believed he was entitled to fire at the persons outside his house.
De Oliveira never took the stand to testify about his state of mind at the time.
A Cape Town man, Ebrahim Sataardien, was in 1998 acquitted on a murder charge after shooting an unarmed man who attacked him and accused him of being a gangster, thinking his life was in danger. The court found he had honestly believed his life was in danger and did not have the intention to kill.
In S v Dougherty the accused, a 63-year-old man of Randburg, was initially convicted of murder after firing a volley of shots at two unarmed men who had attacked his friends in an apparent robbery. He claimed he had feared for his life. His conviction was overturned on appeal in 2002 and changed to one of culpable homicide.
A Cape Town man, Harry Joshua, went in search of the men who had earlier attacked and robbed his wife at their home and then shot dead four men believing he was in danger of being attacked. He was convicted of murder but the Appeal Court in 2002 acquitted him on one of the charges and changed two of his murder convictions to culpable homicide because his erroneous belief that he was in danger excluded “dolus” (or evil intent).
A damages claim against a Cape Town man who shot dead a stranger he thought was tampering with his wife’s car because he erroneously thought the man was about to attack him was dismissed in the Cape High Court in 2008. The court found that he had not acted unreasonably because he subjectively believed his life was in danger, even though his victim only had a bunch of keys in his hand.