Lying in the Sun

Masipa's Judgement - 2

Masipa's Judgement - 2


Judge Masipa continues reading from where she left of earlier before adjournment:



In the same breath Counsel for the Defence submitted that the fact that when the accused approached the toilet he had the intention to shoot to protect himself, did not imply that the accused intended to shoot without reason. 


If that had been his intention he would have discharged his firearm when he arrived at the entrance of the bathroom.   Defence counsel argued that the evidence of Professor Derman, Vorster and Schole (?) as a whole was consistent of that of the accused when he stated that he discharged his firearm in reflex because he felt vulnerable and was fearful.

The above extracts and the submissions by Defence Counsel show without a doubt that we are here dealing with a plethora of defences. 

I proceed to deal with each of them in turn.

The first one is-

Did the accused lack criminal capacity at the time he killed the deceased?

This defence that the accused may have lacked criminal capacity or may have diminished criminal capacity at the time of the incident emerged during the course of the trial.  The accused repeatedly told this Court that he had no time to think before he fired the shots, or before he knew it, he had fired four shots at the door.

This raised a doubt as to whether the accused could be held criminally accountable.

The inevitable question therefore was amongst other things, whether or not the accused could distinguish between right and wrong, and whether he could act in accordance with that distinction.  Though, not clearly expressed in so many words the 'Defence' had the hallmarks of temporary non pathological criminal capacity.  It also sounded like the so called irresistible impulse which was applied in our criminal law prior to 1977 when it was replaced by Section 78, Sub Section 1B of the Criminal Procedure Act 51 of 1977.

In support of the Defence, as I said earlier, Dr Vorster gave evidence that the accused suffered from General Anxiety Disorder which may have affected his conduct at the time of the incident.  The implication of this evidence was that it became necessary for this Court to refer the accused for psychiatric observation.   Referral for observations in terms of Section 72, 78/2 of the Criminal Procedure Act, 51 of 1977.    Following an order referring the accused for psychiatric observation, a panel of experts was appointed, these were three psychiatrists, name Dr ?.to assist the State,  Dr Fyne to assist the Defence and Dr Pretorius to assist the Court.  In addition a psychologist  Professor Scholes (?)was also appointed to assist.

The psychatrists compiled a joint report where they noted their findings.  The Report was submitted to the Court and marked Exhibit PPP.  The relevant portion of this Exhibit is to be found in Paragraph 6C which reads thus:

I quote-

At the time of the alleged offences the accused did not suffer from a mental disorder or a mental defect that affected his ability to distinguish between rightful or wrongful nature of his deeds, and a mental disorder or mental defect did not affect his ability to act in accordance with the said appreciation of the rightful, wrongful nature of his deeds   Close quote.

Similarly the psychologists  Report marked QQQ was submitted to Court and formed part of the Record.

The relevant part of the Record is on Page 31 Paragraph 6.1 and 6.2 which reads thus.

I quote 6.1

Mr Pistorius did not suffer from a mental defect or mental illness at the time of the commission of the offence that would have rendered him criminally not responsible for the offence as charged.  Mr Pistorius was capable… (that is, 6.2)…. Mr Pistorius was capable of appreciation, appreciating the wrongfulness of his act and or acting in accordance with an appreciation of the wrongfulness of his acts.

Both State and Defence Counsel indicated to the Court that they accepted the findings as set out on Exhibit PPP and Exhibit QQQ.

'However, Counsel for the Defence still submitted that in the face of the evidence of Professor Derman about the reaction of the accused to a ‘startle’ it could not be said that the accused was criminally liable.  Counsel submitted that in determining the issue of whether the accused was guilty of murder or culpable homicide, this Court ought to consider that the accused lacked criminal capacity at the time as he discharged his firearm because of an increased startle response.  He pointed out that the startle response was reflexive this meant that the accused could not be held accountable as he lacked capacity in the involuntary reflexive response.  He submitted that whether this reflex fell under the Act, actus reus, or Criminal Capacity made no difference as both negated liability.   Counsel for the Defence further submitted that a finding that the accused was guilty could not be made as the accused could not be held liable for a reflex discharge caused by the increased startle response.'

I disagree with this submission.   There is a huge difference as submitted by State Counsel between a reflex action and involuntary action.   The latter concept has the hallmark of a Defence of non pathological insanity as it gives the impression that the accused had no control over his action when he fired the shots at the door.  That this cannot be is clear from the steps that the accused took from the moment he heard the sounds of the window opening to the time he fired the four shots.

There was no lapse of memory or any confusion on the part of the accused.

On his own version, he froze then decided to arm himself and go to the bathroom.   In other words he took a conscious decision. 

He knew where he kept his firearm and he knew where his bathroom was.   He noticed that the bathroom window was open which is something that confirmed his correctness about having heard the window open earlier!    This is inconsistent with lack of criminal capacity. 

In any effect the experts have already pronounced on this Defence and this Court has not been given any reason not to accept their evidence.

Having regards to expert evidence and the evidence as a whole, this Court is satisfied that at the relevant time the accused could distinguish between right and wrong and that  he could act in accordance of that distinction.

It is also clear that the Defence of non pathological insanity has no foundation.



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11th September 2014

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