Judge Thokozile Masipa will again have to wrestle with the question of a fit sentence for disgraced Paralympian Oscar Pistorius if the state secures a murder conviction against him on appeal.
Five judges of the Supreme Court of Appeal (SCA) in Bloemfontein on Tuesday reserved judgment in the state’s appeal against Pistorius’s conviction of culpable homicide, rather than murder, for the Valentine’s Day 2013 killing of his girlfriend, Reeva Steenkamp.
Steenkamp died after Pistorius opened fire on the locked toilet door behind which she was standing. He told the court he was terrified because he was on his stumps and had fired four shots at the door thinking there was an intruder in the toilet.
Prosecutor Gerrie Nel argued Masipa had interpreted the law incorrectly in the application of dolus eventualis (legal intent) and asked the Appeal Court to substitute her finding about the conviction with the correct finding in law, that it was murder.
Defence advocate, Barry Roux, defended Masipa’s ruling, despite a barrage of sharp questions by all five judges. Criminal defence advocate Piet Pistorius said the appeal was only aimed at the conviction and there was no appeal against the sentence before the SCA. This meant the SCA could not interfere with Pistorius’s sentence.
If the SCA substituted Masipa’s ruling, the judges would have to refer the question of sentencing back to Masipa for new sentencing.
“If there is a murder conviction, the starting point for murder with a firearm would be a minimum sentence of 15 years’ imprisonment,” said Pistorius.
For a departure, “the onus is on the defence to prove that there are substantial and compelling circumstances”.
The advocate said Pistorius’s five-year sentence remained in place, even if he was convicted of murder.