Take your arguments to the Supreme Court of Appeal. This was what Judge Thokozile Masipa indirectly told Oscar Pistorius’s lawyers in the Johannesburg High Court yesterday.
Masipa, who last year convicted the disabled athlete of culpable homicide and sent him to jail, heard an application by Pistorius’s defence team relating to her decision in December last year to allow the state to take the case to the Supreme Court of Appeal (SCA).
Masipa acquitted Pistorius, 28, of murder in September last year for shooting and killing his girlfriend, Reeva Steenkamp, 29, in his Pretoria home on February 14 2013.
Pistorius said he thought it was an intruder hiding in the toilet when he fired the shots through the door.
He was sentenced in October last year to five years in prison, but may apply to have the sentence converted to correctional supervision after serving 10 months. This could see him leave the Kgosi Mampuru II prison in Pretoria in August this year.
Barry Roux, Pistorius’s advocate, yesterday said they were not trying to stop an appeal by the state.
Rather, he said, they were asking for the right to argue their case to the appeal court. He said they had to ask for this, or the SCA may refuse to hear their arguments.
In December last year, Masipa agreed to refer certain questions of law relating to her judgment in Pistorius’s murder trial to the SCA for consideration.
These questions included whether she applied the principle of dolus eventualis correctly.
Dolus eventualis is a form of intent that would have seen Pistorius found guilty of murder if Masipa believed that Pistorius himself, in the circumstances, had foreseen that he could kill someone and did not take action to prevent that.
Should the SCA decide that Masipa applied the law incorrectly and she should have found Pistorius guilty of murder, it could change the outcome of the case considerably.
Roux said their case would be that there were no questions of law for the appeal court to consider and the points raised were actually about factual findings. The defence unsuccessfully argued this same point when they opposed the state’s application in December.
The law does not allow the prosecution to appeal on the factual findings in a case. It can only ask a higher court to consider a case if they believe the trial court applied the law incorrectly. Prosecutor Gerrie Nel said the law made no provision for an appeal against leave to appeal.
This was because it was a process and no final decision had been made.
“The court did not say these are questions of law.
“It said ... there is a reasonable possibility that the SCA may find these are questions of law.”
Masipa said the defence had the right to argue its case before the appeal court.
She also said she did not believe she could hear the defence’s application, and struck it off the roll.
“Both counsel had the opportunity to argue before this court the points raised were questions of law. There is really nothing new ... ” she said.
“Hearing this application would be tantamount to reviewing my own decision,” Masipa said.
The date for the case to be heard before the SCA has not yet been determined. Pistorius was not present in court yesterday.
Judge denies Pistorius legal bid
Masipa, who last year convicted the disabled athlete of culpable homicide and sent him to jail, heard an application by Pistorius’s defence team relating to her decision in December last year to allow the state to take the case to the Supreme Court of Appeal (SCA).
Masipa acquitted Pistorius, 28, of murder in September last year for shooting and killing his girlfriend, Reeva Steenkamp, 29, in his Pretoria home on February 14 2013.
Pistorius said he thought it was an intruder hiding in the toilet when he fired the shots through the door.
He was sentenced in October last year to five years in prison, but may apply to have the sentence converted to correctional supervision after serving 10 months. This could see him leave the Kgosi Mampuru II prison in Pretoria in August this year.
Barry Roux, Pistorius’s advocate, yesterday said they were not trying to stop an appeal by the state.
Rather, he said, they were asking for the right to argue their case to the appeal court. He said they had to ask for this, or the SCA may refuse to hear their arguments.
In December last year, Masipa agreed to refer certain questions of law relating to her judgment in Pistorius’s murder trial to the SCA for consideration.
These questions included whether she applied the principle of dolus eventualis correctly.
Dolus eventualis is a form of intent that would have seen Pistorius found guilty of murder if Masipa believed that Pistorius himself, in the circumstances, had foreseen that he could kill someone and did not take action to prevent that.
Should the SCA decide that Masipa applied the law incorrectly and she should have found Pistorius guilty of murder, it could change the outcome of the case considerably.
Roux said their case would be that there were no questions of law for the appeal court to consider and the points raised were actually about factual findings. The defence unsuccessfully argued this same point when they opposed the state’s application in December.
The law does not allow the prosecution to appeal on the factual findings in a case. It can only ask a higher court to consider a case if they believe the trial court applied the law incorrectly. Prosecutor Gerrie Nel said the law made no provision for an appeal against leave to appeal.
This was because it was a process and no final decision had been made.
“The court did not say these are questions of law.
“It said ... there is a reasonable possibility that the SCA may find these are questions of law.”
Masipa said the defence had the right to argue its case before the appeal court.
She also said she did not believe she could hear the defence’s application, and struck it off the roll.
“Both counsel had the opportunity to argue before this court the points raised were questions of law. There is really nothing new ... ” she said.
“Hearing this application would be tantamount to reviewing my own decision,” Masipa said.
The date for the case to be heard before the SCA has not yet been determined. Pistorius was not present in court yesterday.
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