Legal experts mixed reaction to Pistorius judgment

Masipa started handing down judgment in the High Court in Pretoria on Thursday.

Professor James Grant of the Wits School of Law said it seemed Masipa had made a “mistake of law” in clearing Pistorius of the murder charge.

The paralympic athlete shot and killed Steenkamp behind a locked toilet door at his Pretoria home on Valentine’s Day last year. He said he mistook her for an intruder.

“The problem is that Masipa has found that he did not intend to kill.”

But that is not the question and it was not his defence,” Grant said.

“It seems as if she arrived at the conclusion by making a mistake of law relating to whether it matters who was behind the door.”

Grant said that, on the one hand, she surveyed the law on the issue and was correct on her view, but when applying the question of dolus eventualis, which was the widest form of intention in law, she seemed to restrict herself to considering whether it was Steenkamp who was behind the door.

Grant explained that it did not matter who was behind the door but that he shot at the door with intention.

“If I am right, that is a sound basis for the State to appeal the murder acquittal,” said Grant.

Kelly Phelps, of the Public Law Department at the University of Cape Town, did not agree.

“I support her finding and her reasoning… Culpable homicide was always a likely outcome in this case,” she said.

Phelps said the problem started off with the way that the indictment was drafted.

“The way this murder charges is drafted, it focused closely on him shooting at Reeva Steenkamp and not on whoever was behind the door,” she said.

She said the State would have needed to prove that he had foreseen the possibility that it was Steenkamp who was behind that door.

“For intention, what we need to establish was the fact that he did foresee this.”

Phelps said the State seemingly glossed over Pistorius’s version and hoped it would not be accepted.

“My professional opinion is that the defence is correct in their interpretation of dolus eventualis.”

She referred to the case of former Springbok rugby player, Rudi Visagie, who shot dead his 19-year-old daughter as she drove out of their home in the early hours of the morning in May 2004.

Visagie apparently said he thought she was thief who was stealing the car.

“The NPA declined to prosecute him on humanitarian grounds,” said Phelps.

“They even said that had they proceeded to trial, they would have successfully gotten a culpable homicide conviction and not one of murder.”

Phelps said the finding of culpable homicide was a correct label for the Visagie and Pistorius cases.

Proceedings continue on Friday when Masipa is to rule on whether Pistorius is guilty of culpable homicide.

He faces three other firearm-related charges.

– Sapa