Pretoria - As Oscar Pistorius prepares to leave prison this week to serve the remainder of his sentence for killing his girlfriend Reeva Steenkamp under correctional supervision, the State is asking that he be convicted of murder, or that he be retried.
Pistorius will leave the Kgosi Mampuru II Prison in Pretoria on Friday after serving 10 months – the minimum period of imprisonment of his five-year jail sentence.
He is expected to relocate to his uncle’s home in Waterkloof to complete his sentence under strict conditions as a parolee.
But, in its heads of argument filed at the Supreme Court of Appeal in Bloemfontein on Monday, the State said the only reasonable verdict in the Pistorius trial was murder and not culpable homicide, as had been found by Judge Thokozile Masipa in the high court in Pretoria.
Gerrie Nel will argue to that court in November that Section 322 of the Criminal Procedure Act paved the way for the appeal court itself to convict Pistorius of murder. This section will also empower the appeal court to “order that new proceedings be instituted on the original charge, as if the accused (Pistorius) had not previously been arraigned”.
Nel has indicated that a retrial was not the only option in the Pistorius case, but that the appeal court could directly deal with the matter.
The State has turned to the appeal court as it feels that Judge Masipa erred not to convict Pistorius of murder for shooting dead Steenkamp behind the toilet door in his Pretoria home on Valentine’s Day in 2013.
According to the State, the judge had incorrectly applied the principles of dolus eventualis, and that Pistorius should have foreseen that he could kill Steenkamp when he fired four shots through the toilet door after he said he had heard a noise and thought it was an intruder.
The first point which is expected to be argued is whether the State is launching appeal proceedings based on an error in law or on fact. As the law stands, the State can only argue errors in law, which Nel said was the case in this instance.
However, Pistorius’s advocate Barry Roux is contesting that the appeal is based on findings in law. According to him, the State is attacking the findings on fact, which it is not entitled to do.
Some of the questions under the spotlight will be whether the principle of dolus eventualis was applied correctly to the accepted facts regarding Pistorius’s conduct on that fateful night, and whether legal principles regarding circumstantial evidence were applied correctly by the trial court.
Nel said if it is found that Judge Masipa incorrectly applied the principles of dolus eventualis, the conclusion that Pistorius should have been convicted of murder is inescapable. Nel, in this regard, noted the findings of the court that Pistorius armed himself and deliberately fired through the locked toilet door.
Nel said Pistorius clearly knew someone was behind the door when he fired the shots and he was trained in the use of firearms. On these facts, Nel believes he should have – at the very least – have been convicted of murder with intent.
According to Nel, Judge Masipa should have evaluated all the evidence and not only portions of it. Nel said the judge should have asked what Pistorius thought someone did in the toilet cubicle, whether he considered the person’s position before he fired and why he had not aimed at the floor, or where the person’s feet would be behind the door.
During his evidence last year, Pistorius testified in tears that he had thought there was an intruder behind the toilet door and had no idea it was Steenkamp.
Pistorius was handed a five year sentence, in terms of which he only had to serve 10 months, before he was considered for parole.
Family and friends of both Pistorius and Steenkamp have declined to comment on his release.
In a letter submitted to the parole board, Steenkamp’s parents said: “Incarceration of 10 months for taking a life is simply not enough.”
On Monday they said in a statement they still struggled to cope with Reeva’s death. She would have been 32 on Wednesday.
While he may be out of jail soon, Pistorius’s legal road is not over and his defence team is next month expected to submit their heads of argument.
Should the culpable homicide conviction be overturned, Pistorius would face a minimum sentence of 15 years in jail.
Pretoria News