Pistorius judge ′interpreted the law incorrectly′ | Africa | DW | 11.09.2014
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Pistorius judge 'interpreted the law incorrectly'

Oscar Pistorius has been declared not guilty of premeditated murder. But the language of that verdict has raised the prospects of an appeal, says South African legal expert David Dadic.

Oscar Pistorius, the Paralympics sprinter who came to be known as the "blade runner," was found not guilty of premeditated murder on Thursday (11.09.2014) in the shooting death of his girlfriend, Reeva Steenkamp.

On Friday, Judge Thokozile Masipa is due to issue a verdict on "culpable homicide." In total, she has heard the testimonies of 37 witnesses at the trial in Pretoria's North Gauteng High Court.

DW: The judge said Pistorius will not be found guilty of murder, but that he was negligent in killing his girlfriend, Reeva Steenkamp. What do you make of what's been going on in the courtroom?

David Dadic: I think she [the judge] may have erred in her judgment. A lot of legal minds, and I think even [prosecutor] Gerrie Nel, might be looking to appeal the judgment as it stands. Because I'm not sure she's actually applied the law correctly. On the negligence side, she essentially said he'll be convicted of culpable homicide on Friday, which I suppose is the equivalent of manslaughter in the US. It's a negligent murder.

How different is 'murder' to 'culpable homicide' in South African society, where a person is allowed to carry a gun for self defense?

Murder comes from a point of view of intent. It's the intentional, wrongful killing of a person - so you're actually looking to murder someone. She said he wasn't looking to kill anybody: Although he was armed and in a defensive position, he wasn't looking to kill. So he killed somebody negligently in the sense that he could have taken other options: He could have phoned security or gotten out of the house and screamed from the balcony. So in that sense, he was negligent in overreacting in the circumstances.

What will happen to him?

It could be anywhere from a suspended sentence to between eight and ten years' imprisonment. Obviously, there's going to be a mitigation of sentence procedure in a few weeks' time, which is almost like a mini-trial. The defense - Oscar's team - will present evidence to try and have a non-prison sentence handed down, and Gerrie Nel, on the other hand, will do what he can to have Oscar imprisoned for his crime.

Were you surprised by the judge's statement that Pistorius didn't kill his girlfriend intentionally?

No. I think she was right about the premeditated charge on Reeva and the intention to kill Reeva. I don't think there was any what we call dolus directus - no direct intent - to kill Reeva. Where I do think she erred is that she said there was no intention to kill, irrespective of who the victim is, which is dolus eventualis. I believe the state had proven the case for eventualis in the fact that Oscar was looking to kill by using bullets, by the door being closed, by the size of the bathroom - these are object effects which one could see as an object of intent.

You said the judge should expect an appeal. Why is that?

A few people have said, and I agree, that she's interpreted the law regarding forseeability incorrectly. The foreseeability test applies to eventualis, and not to culpable homicide. So from that point of view, if the state feels she applied the law incorrectly in terms of section 310 of the Criminal Procedure Act, the state can appeal the decision based on the wrong application of law by the judge.

How do you think the case is going to end?

Pistorius will be convicted of culpable homicide. I also think he may be convicted on at least one or two of the lesser charges, and in a few weeks' time, I imagine there will be a sentencing hearing. It is difficult to estimate what the sentence would be without the hearing because the evidence in the hearing is going to be extremely important.

Isn't that a relief for Pistorius?

Anything less than a murder charge is a slight victory for Pistorius. I think he was most concerned about a conviction of murder charges. So possibly, he'll feel pretty satisfied at this point.

David Dadic is a litigation attorney in Johannesburg, South Africa.

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