Oscar Pistorius verdict questioned by South African legal experts

http://www.theguardian.com/world/2014/sep/12/pistorius-verdict-questioned-by-south-african-lawyers

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In the immediate wake of the culpable homicide verdict, South African lawyers have questioned whether the judge in the Oscar Pistorius case erred in clearing the Olympic athlete of murder.

As state prosecutors announced they were considering appealing judge Thokozile Masipa's decision, legal experts suggested she may have focused too closely on the relationship between Reeva Steenkamp and Pistorius.

Had there been an intruder behind the toilet door, as Pistorius told the court he believed, then firing four shots into such a confined space would probably have been considered murder by other courts, some lawyers argued.

Emma Sadleir, an expert on social media law who has been monitoring responses to the verdict, told the Guardian that many South African lawyers were uneasy with the decision on common law murder – what is known in the country's laws as dolus eventualis murder.

"The legal fraternity are concerned that the test for dolus eventualis may been applied incorrectly," Sadleir said. "The judge seems to have concentrated on the question of whether it was Reeva.

"But even if he thought there was an intruder behind the door, lawyers are saying, it would still mean that the action was murder. There's a lot of chatter that this is a highly unusual case in which the prosecution will appeal on a point of law under section 310 of the criminal procedure act."

Sadleir said legal opinion supported the judge's reasoning that there was insufficient evidence of the couple having had a row or fallen out with one another and therefore no evidence of premeditated murder.

But, she added: "Even according to Pistorius' version there was a person behind the door. It was a tiny cubicle, less than 1.5 by 1.5 metres, to have fired into."

Sadleir said there was precedence in a recent case where a South African rapper, Jub Jub was found guilty of murder after racing a Mini Cooper through the streets of Soweto and ploughing into a crowd of schoolchildren, killing four of them.

"The judge in that case said that he should have foreseen the possibility of the deaths and returned a verdict of murder." In the Pistorius case, she said, the likelihood of death resulting from opening fire in such a confined space was far greater.

Dr David Klatzow, a leading South African forensic scientist, also believed the judge had not got it right. "It was irrelevant whether it was Reeva or anybody else behind that door," he explained. "There is a provision in South African law that [self-defence] force must be proportional to the threat and reasonable.

"If I shot someone who is punching my wife that would be unreasonable. Your life and that of anyone else has to be in immediate, mortal danger. I'm not sure that it was ever shown [that he was] in immediate mortal danger. [Such a claim] could be measured against his veracity in the witness box, which did him no favours.

"Everyone here owns a firearm and they have to undergo a written examination in which this is one of the issues. Anybody who fires a 9mm pistol will know about the lethal nature of those bullets. I'm surprised the judge found him not guilty of murder."