JUDGE Thokozile Masipa’s judgment in the Oscar Pistorius murder trial has created an explosion of criticism, commentary and division in the legal fraternity and among the general public.
Masipa cleared the athlete of murdering his model girlfriend Reeva Steenkamp, instead finding him guilty of culpable homicide and of one firearm-related charge.
This was because Masipa found that the state had failed to prove beyond a reasonable doubt that Pistorius had the necessary intention to murder Steenkamp.
Despite finding the athlete was a “very poor witness”, Masipa accepted that Pistorius’s version – that he genuinely believed there was an intruder in his house – could reasonably possibly be true, which is all that was necessary for an acquittal on murder.
But his shooting through a closed toilet door was not something a reasonable person would have done in the same circumstances and he was thus guilty of negligently causing Steenkamp’s death; that is, culpable homicide.
The crux of the judgment rests on two things – proof beyond a reasonable doubt and the difference between objective and subjective legal tests.
Masipa’s verdict has created a ruckus for a number of reasons, with the most common criticism relating to her application of dolus eventualis.
Dolus eventualis is where the accused foresees the possibility that the prohibited consequence – here, death – might happen, in substantially the same way it occurs, and he reconciles himself with this possibility; that is, he consciously accepts it and proceeds.
There is no presumption that an accused intended to commit the crime he is accused of and the test for dolus eventualis, which is purely subjective, has two legs.
In my view, this can be applied in the Pistorius case as:
(a) did Pistorius foresee the possibility of the death of Steenkamp or anyone else as a result of his shooting four times through a closed toilet door; and
(b) did he reconcile himself with the possibility that Steenkamp or anyone else might die as a result?
To pass this test, the state had to prove that Pistorius definitely foresaw the death of someone as a result of his actions and, consciously accepting this, he went ahead.
The only thing to be taken into account in determining the subjective test is the accused’s state of mind.
Pistorius was the only one who could say what his state of mind was when he fired the shots and he testified that “he never thought of the possibility that he could kill people in the toilet”.
Many have said that Pistorius “must have” foreseen the possibility of killing someone when he shot four times through the door of a tiny toilet cubicle when, on his own version, he believed someone was inside. However, this is not enough.
The test for dolus eventualis is not whether a reasonable person would have foreseen; this is the test for culpable homicide. Rather, the court had to be 100% sure that Pistorius did foresee.
If the accused – like in the case of Pistorius – denies having had this foresight, it is possible to use inferential reasoning to determine his actual state of mind. This involves finding that because the accused ought to have foreseen the possibility of the consequences, he must have done so.
Because “in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence” is the wording used by the Supreme Court of Appeal in the 2013 case of Humphreys v S.
However, Professors Jonathan Burchell and John Milton, in their book Principles of Criminal Law, quote the 1967 case of S v Sigwahla and warn that “to constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn”.
“It cannot be drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so, and even if he probably did so,” the court said in this case. Based on the Humphreys judgment, Masipa may have believed that there were indications that Pistorius did not have the foresight of a “right-minded person” and his subjective foresight was “radically different from the norm”.
This may be because she accepted that Pistorius was someone who, when the fight-or-flight response kicked in, would rather fight and, as a person with generalised anxiety disorder, he would easily get a fright. Masipa also took into account the vulnerability of someone with a disability.
Where Masipa appears to have muddied the waters is not through her application of the dolus eventualis test, but through the wording she used when she applied it:
“The question is 1) did the accused subjectively foresee that it could be the deceased behind the toilet door; and 2) notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet? The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that from the onset, the accused believed that at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet.”
This wording implies that Masipa was saying only if Pistorius foresaw that he might kill Steenkamp could he be convicted of murder dolus eventualis. This, on my understanding of the law, is incorrect. According to the concept of error in objecto or in persona, if a person intends to kill A, but kills B instead, he still had the necessary intent to kill a human being and is thus guilty of murder. The error in identity is irrelevant.
However, Masipa later clarified that she not only found that Pistorius had not foreseen the possibility of Steenkamp’s death, but he also had not foreseen the death of the perceived intruder:
“He did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.”
And: “The accused cannot be guilty of murder dolus eventualis … on the basis that, from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted the possibility, or brought that possibility into the bargain.”
“The fact that the person behind the door turned out to be the deceased and not an intruder, is irrelevant,” Masipa said.
Also, the fact that Pistorius relied on putative private defence - that he believed his life or property was in danger and took defensive steps - as one of his “plethora” of defences, does not mean he had the necessary intention to kill, Masipa found.
His “strange conduct” in arming himself with a loaded firearm and approaching what he thought was danger, “with a firearm ready to shoot”, was explained by the fact that he is “a fight rather than a flight reaction person”, Masipa said.
Also, while Pistorius had the intention to shoot, he did not have the intention to kill. “The intention to shoot however, does not necessarily include the intention to kill,” Masipa said.
Subjectively, Masipa accepted that Pistorius did not foresee the possibility of someone unlawfully dying as a result of his actions.
“It follows that the accused’s erroneous belief that his life was in danger excludes dolus.”
While many believed that because Masipa found Pistorius to be such a poor witness and that there were many unanswered questions still lingering, she should have rejected his version of events. Masipa was cautious in this regard and, while I am not certain that the court’s findings on the facts are correct; on the law, I believe Masipa got it right.
Having accepted Pistorius’s version as reasonably possibly true, this created reasonable doubt in her mind that Pistorius may not have committed the crimes he was accused of and, if it was reasonably possible that he might be innocent, she could not find him guilty.
Kim Hawkey is Tiso Blackstar’s group courts and law editor
Masipa got it right – in law
Masipa cleared the athlete of murdering his model girlfriend Reeva Steenkamp, instead finding him guilty of culpable homicide and of one firearm-related charge.
This was because Masipa found that the state had failed to prove beyond a reasonable doubt that Pistorius had the necessary intention to murder Steenkamp.
Despite finding the athlete was a “very poor witness”, Masipa accepted that Pistorius’s version – that he genuinely believed there was an intruder in his house – could reasonably possibly be true, which is all that was necessary for an acquittal on murder.
But his shooting through a closed toilet door was not something a reasonable person would have done in the same circumstances and he was thus guilty of negligently causing Steenkamp’s death; that is, culpable homicide.
The crux of the judgment rests on two things – proof beyond a reasonable doubt and the difference between objective and subjective legal tests.
Masipa’s verdict has created a ruckus for a number of reasons, with the most common criticism relating to her application of dolus eventualis.
Dolus eventualis is where the accused foresees the possibility that the prohibited consequence – here, death – might happen, in substantially the same way it occurs, and he reconciles himself with this possibility; that is, he consciously accepts it and proceeds.
There is no presumption that an accused intended to commit the crime he is accused of and the test for dolus eventualis, which is purely subjective, has two legs.
In my view, this can be applied in the Pistorius case as:
(a) did Pistorius foresee the possibility of the death of Steenkamp or anyone else as a result of his shooting four times through a closed toilet door; and
(b) did he reconcile himself with the possibility that Steenkamp or anyone else might die as a result?
To pass this test, the state had to prove that Pistorius definitely foresaw the death of someone as a result of his actions and, consciously accepting this, he went ahead.
The only thing to be taken into account in determining the subjective test is the accused’s state of mind.
Pistorius was the only one who could say what his state of mind was when he fired the shots and he testified that “he never thought of the possibility that he could kill people in the toilet”.
Many have said that Pistorius “must have” foreseen the possibility of killing someone when he shot four times through the door of a tiny toilet cubicle when, on his own version, he believed someone was inside. However, this is not enough.
The test for dolus eventualis is not whether a reasonable person would have foreseen; this is the test for culpable homicide. Rather, the court had to be 100% sure that Pistorius did foresee.
If the accused – like in the case of Pistorius – denies having had this foresight, it is possible to use inferential reasoning to determine his actual state of mind. This involves finding that because the accused ought to have foreseen the possibility of the consequences, he must have done so.
Because “in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence” is the wording used by the Supreme Court of Appeal in the 2013 case of Humphreys v S.
However, Professors Jonathan Burchell and John Milton, in their book Principles of Criminal Law, quote the 1967 case of S v Sigwahla and warn that “to constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn”.
“It cannot be drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so, and even if he probably did so,” the court said in this case. Based on the Humphreys judgment, Masipa may have believed that there were indications that Pistorius did not have the foresight of a “right-minded person” and his subjective foresight was “radically different from the norm”.
This may be because she accepted that Pistorius was someone who, when the fight-or-flight response kicked in, would rather fight and, as a person with generalised anxiety disorder, he would easily get a fright. Masipa also took into account the vulnerability of someone with a disability.
Where Masipa appears to have muddied the waters is not through her application of the dolus eventualis test, but through the wording she used when she applied it:
“The question is 1) did the accused subjectively foresee that it could be the deceased behind the toilet door; and 2) notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet? The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that from the onset, the accused believed that at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet.”
This wording implies that Masipa was saying only if Pistorius foresaw that he might kill Steenkamp could he be convicted of murder dolus eventualis. This, on my understanding of the law, is incorrect. According to the concept of error in objecto or in persona, if a person intends to kill A, but kills B instead, he still had the necessary intent to kill a human being and is thus guilty of murder. The error in identity is irrelevant.
However, Masipa later clarified that she not only found that Pistorius had not foreseen the possibility of Steenkamp’s death, but he also had not foreseen the death of the perceived intruder:
“He did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.”
And: “The accused cannot be guilty of murder dolus eventualis … on the basis that, from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted the possibility, or brought that possibility into the bargain.”
“The fact that the person behind the door turned out to be the deceased and not an intruder, is irrelevant,” Masipa said.
Also, the fact that Pistorius relied on putative private defence - that he believed his life or property was in danger and took defensive steps - as one of his “plethora” of defences, does not mean he had the necessary intention to kill, Masipa found.
His “strange conduct” in arming himself with a loaded firearm and approaching what he thought was danger, “with a firearm ready to shoot”, was explained by the fact that he is “a fight rather than a flight reaction person”, Masipa said.
Also, while Pistorius had the intention to shoot, he did not have the intention to kill. “The intention to shoot however, does not necessarily include the intention to kill,” Masipa said.
Subjectively, Masipa accepted that Pistorius did not foresee the possibility of someone unlawfully dying as a result of his actions.
“It follows that the accused’s erroneous belief that his life was in danger excludes dolus.”
While many believed that because Masipa found Pistorius to be such a poor witness and that there were many unanswered questions still lingering, she should have rejected his version of events. Masipa was cautious in this regard and, while I am not certain that the court’s findings on the facts are correct; on the law, I believe Masipa got it right.
Having accepted Pistorius’s version as reasonably possibly true, this created reasonable doubt in her mind that Pistorius may not have committed the crimes he was accused of and, if it was reasonably possible that he might be innocent, she could not find him guilty.
Kim Hawkey is Tiso Blackstar’s group courts and law editor
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