Nel told the South Gauteng High Court on Friday that the matter before Judge Thokozile Masipa, who presided over trial, was not appealable as it is not an order, sentence or conviction appeal.
“As a creature of statue, this court has no right to hear this application, it should be struck from the roll,” said Nel. Nel further asked if leave to appeal is granted on the leave to appeal, then one could ask for leave to appeal on the leave to appeal which was granted with the leave to appeal.
“Granting leave against leave may open up our courts to applications of the nature forever.” Nel added that the court does not have an inherent power to review its own decision.
“If this court grants leave against leave it would be reviewing its own judgment, which it does not have a right to do.” Furthermore, Nel said the defence had no new points on their argument.
While he said the court must not entertain the application, Barry Roux SC for Pistorius said the state had it all wrong and that they were not asking for leave to appeal on the appeal granted by Masipa, but rather the substantive application.
Roux argued that according to Masipa’s judgment, she did not grant leave to appeal but it was a substantive application in terms of the law in which they can ask questions of law before the Supreme Court of Appeal.
He said that Masipa had dismissed the state’s leave to appeal on the sentences but granted a substantive application in which she reserved points of law to be taken up in the Appeal Court, against the murder acquittal.
This is what compels the defence to make their application that they be allowed to argue the premise that the state is not asking points of law, but rather accepted facts that have been masked, when the state stands before the Appeal Court. Thokozile adjourned court in order to decide whether to strike the application from the roll or not.
During the state’s application for leave to appeal heard by Masipa in December, she said she believed the questions brought by the state were based on questions of law, including whether she correctly applied Dolus Eventualis (awareness of the likely outcome of an action) to the facts and circumstances in the case.
She also acknowledged that there was a possibility that another court could rule differently on the murder charge, which Masipa acquitted the paralympian of in September.
The state is expected to appear before the SCA later this year in a bid to have Pistorius’ culpable homicide charge overturned in favour for a murder conviction.
Pistorius shot and killed Steenkamp through a locked toilet door in his Pretoria home on Valentine’s Day in 2013. Masipa acquitted Pistorius of murder but found him guilty of culpable homicide as well as negligent discharging of a firearm in Tasha’s restaurant in Sandton in 2013.
Pistorius was sentenced to five years. For discharging a firearm at Tasha’s restaurant in January 2013, he was sentenced to three years in jail suspended for five years. The sentences are running concurrently.