After listening to both the state and Pistorius’ defence team, she briefly adjourned before returning with her decision to strike the application from the roll.
Despite Barry Roux SC, for Pistorius, saying that this was not a leave to appeal, Masipa said it was and that allowing the application to be heard would be tantamount to her reviewing her own decision.
Furthermore, she said that there was nothing new in the defence’s application and that both the defence and the state had the opportunity to argue before the court on whether the state was raising points of law or accepted facts, during the state’s application for leave to appeal.
“Not satisfied that this is the correct court to hear this application,” she added. She subsequently struck the matter from the roll. Gerrie Nel, for the state shot down the Blade Runner’s application for leave to appeal on the state’s leave to appeal on the murder acquittal, saying that it was not appealable.
“As a creature of statue this court has no right to hear this application it should be struck from the roll,” said Nel saying that it was not an order, sentence or conviction appeal.
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 judgement, which it does not have a right to do.”
Furthermore, Nel said the defence had no new points on their argument. For the defence, the points of law versus that of fact took centre stage in their bid to approach the Supreme Court of Appeal to raise that the state could not argue the appeal.
In doing so, Roux argued that 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.
NPA spokesperson Velekhaya Mgobhozi said they were pleased that the court agreed with the state and that the defence team would still be able to argue these points before the Appeal Court.
He added that the while Pistorius may very well be eligible for correctional supervision by the time the appeal is heard in the Appeal Court, that the prospect of Pistorius being out of prison by that time was a matter to be dealt with by correctional services.
During the state’s application for leave to appeal heard by Masipa in December. 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 is 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.