Oscar Pistorius: the Blade Runner may be outrun by law

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By Kaweesa Keefa

Crime does not pay; the old adage goes.  If one wants to incur loss, should commit murder.  Criminal law cases provide legal gymnastics that are easily digested by learned friends and detested by other disciplines.

Uganda’s criminal law stems from the 1902 British Order in the Council and the Indian Penal Code while South African law is a courtesy of German-Dutch background and slightly differs.  The South African state evaluation of evidence expounds on three principals: dolus directus, dolus indirectus and dolus eventualis.

"Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder.

"Dolus directus, on the other hand, known as intention in its ordinary grammatical sense, is present when the accused’s aim and object is to bring about the unlawful consequence; even should the chance of its resulting be small."

‘The appeal’ in the Pistorious case which has been instituted by the South African Prosecution Authority ‘is based on question of law.”

Learned experts claim that there are indeed fertile grounds as the judge may have misapplied a part of the law called "dolus eventualis" - which says someone should be found guilty of murder, if he foresaw the possibility of killing someone through his actions and went ahead anyway.

In  the case of the State V Markgatho , the appellant was charged with murder, discharging a gun and the supreme court concluded that  the appellant was guilty of murder on the basis of dolus eventualis in that “he foresaw that what he did would cause an accident but he decided to adopt an I do not care attitude”.

It can remain whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith and it ranges from bordering on negligence (culpa) on the one hand to dolus directus on the other.

However, the test always Dolus eventualis is sometimes said to be the criminal law equivalent to the tort concept of gross negligence.

Law experts questioned how Judge Masipa ruled that Pistorius did not predict that someone might die when he decided to shoot four times from close range into the small toilet cubicle in his Pretoria home, hitting Steenkamp in the hip, arm and head.

They have also said that Pistorius' argument that he did not know it was the 29 year old model in the cubicle might not be enough to save him from a murder conviction as he still knew there was someone in there when he fired his 9 mm pistol.

In papers filed with the North Gauteng High court, prosecutor Gerie Nel said Judge Masipa “erred in over emphasising the personal circumstances of the accused and the fact that the accused was suffering from post-traumatic stress, was anxious and ‘seems remorseful’.

That ‘Not enough emphasis was placed on the horrendous manner in which the deceased died coupled with the gruesome injuries she sustained when the accused shot and killed her’.

That the Judge failed to sufficiently consider that Pistorious acted with “gross negligence”, and had fired four shots with a gun “loaded with black talon ammunition through a locked door into a toilet cubicle from which there was no room to escape”.

Certainly, this is the beginning of legal fireworks and gymnastics which we shall definitely digest for some time to come. 

The writer is a lawyer
kefasen@yahoo.com