Plan B Forum

Masipa . . .said Pistorius had options other than confronting the “danger”. She said: “I’m not persuaded that a reasonable person would have fired four times into a small toilet. A reasonable person would foresee that a person inside the toilet might have died. He knew there was a person behind the door.”

Whether or not you think Oscar Pistorius got off lightly depends largely on where you stood on the case in the first place. But the verdict is certainly controversial in South African legal circles.

There are many questions about whether the judge applied the law correctly, and suggestions that the State Prosecutor, Gerrie Nel, is already preparing his appeal. It's certainly hard for me to reconcile the letter of the law with the way the judgment played out.

The South African legal system allows for different kinds of murder convictions, and the one that's relevant here is what is known as common-law murder with indirect intentions – or "dolus eventualis".

According to the law, someone is guilty of murder if they know that their actions could lead to the killing of a person and reconcile themselves to that fact, and act anyway.

In delivering her ruling, judge Thokozile Masipa said that "a reasonable person would have foreseen if he fired shots at the door, the person inside the toilet might be struck and might die as a result", which suggests a classic case of dolus eventualis.

But the judge seems to have cleared him of this charge because she felt that, to be guilty of common-law murder, Pistorius needed to have foreseen that his actions would kill a specific person – Reeva Steenkamp.

The state tried to prove that Pistorius was aware that it was Steenkamp behind the toilet door but the judge accepted the defence's claims that he thought it was an intruder. She put a lot of weight on the genuine remorse he showed after the fact, saying there's no way he could have faked that.

This may be debatable; and many people have suggested that if he had killed her in a fit of rage he would still be remorseful afterwards.[Duh...]

But what's perhaps more interesting is the question of whether, even if he did think it was an intruder, he should be guilty of common-law murder in these circumstances – and many people believe he should. I would say that the law is clear – it doesn't have to be a specific person whose death can be foreseen, it can be anyone.

If the rumours that the state is already preparing its appeal are true, this appeal can only take place after sentencing in October – and only on the grounds that the law was misinterpreted. Nel would have to argue that a higher court would come to a different conclusion after hearing the same evidence.

What's perhaps most likely is that the state will wait until the sentence is delivered, and base their decision on its severity. If Pistorius is given what they consider a suitable term of, say, 10 years in jail, they may decide there is no need.

But a long jail term raises another possibility: that the defence will appeal in the hope of reducing it. To my mind this would be very foolish. There's a possibility that another court may impose a harsher sentence or may reconsider the verdict of culpable homicide and convict him of murder.

So I think a defence appeal would not be wise in the circumstances. Pistorius was charged with a schedule six premeditated-murder offence with a penalty of 25 years in jail. Compared to that, the defence should be over the moon with the outcome.