Lying in the Sun

Masipa's Mistake

Masipa's Mistake

Jeremy Thomson Sky News speaks to South African lawyer Martin Hood


Let's get down to the nitty gritty of the legal debate and that seems to have caused quite a stir amongst the legal profession?

Martin Hood:

I think that would be an understatement.  Just looking at the social media reading some of the commentary in the local press it is quite clear that many of us, and I say 'us' as I include myself because I believe that the Judge unfortunately made a mistake.

She made a mistake I think in two fundamental areas.

The first is that she took facts found to be proven, which are common cause, and then she misunderstood them in the sense that when you make the conscious decision to go down the passage, pick up your firearm in the process, you say in your Plea Explanation,it's PUTATIVE SELF DEFENCE, it means, I intended to kill somebody but it is legally justifiable because I thought I could do it.

So Pistorius in his plea explanation actually said I had intent.

When looking at the facts it's clear that he had some sort of intent he didn't have to want to kill Reeva Steenkamp but he could, and should have reasonably foreseen that someone in the door...sorry, someone in the toilet cubicle would have been killed by the four shots that he fired.

The Judge didn't look at the facts that way.  She said it's negligence.   And then she applied the WRONG legal test. 

And I think there has been a lot of debate about the legal test and there has been a lot of confusion because Latin phrases being bandied around, but in essence - SHE APPLIED THE WRONG TEST.

She looked at it objectively instead of subjectively in those circumstances and she said he was negligent and he didn't do it intentionally.

And that flew in the face of his VERY OWN PLEA EXPLANATION.  And it flew in the face of the Objective facts as well.

So many of us believe he should have been convicted objectively speaking of what we call legal intention - dolus eventualis - in other words, the Court says, you might say you didn't mean it to happen, but we rule that you DID intend it to happen.

Instead, we have a conviction based upon a crime of negligence.


So a lot of lawyers and maybe even a different judge might have come down for murder without pre-meditation?

Martin Hood:


Pre-meditated murder from when the first witnesses started it never got out of the starting blocks. Gerrie Nel did that for a variety of reasons primarily to get a statement out of Pistorius.

But it was clear from the get-go that he was never going to prove pre-meditated murder, but I think that he knew that.  I think that he may have grandstanded a bit just to, to show that the legal system is very very tough.  But that was never going to happen.

It was always a case of straightforward, normal- in so far as it can be normal - MURDER.


***I did a blog this morning 'My View - Masipa' where I raised the point that I could not understand how Judge Masipa could say that there was NO INTENT - as sure in hell, Pistorius packing a gun loaded with black talon bullets going to check out what he said was an intruder in his bathroom, was not going there to throw the guy a welcome party.  I referred also any reader who may happen by to my blog to read also Masipa's Judgement, particulary so Part 4 & 5 as anyone after having read this, persons with no legal knowledge, like myself, could see that the basis on which she determined her Judgement made not a jot of sense.

I was so pleased to hear Martin Hood (who has reported on this case several times, in fact I posted some of his interviews here on this site) speak on Judge Masipa's Judgement as I always find him to be straight to the point exact in his findings and opinion.

I'm sure others too will appreciate his views, as many have been left reeling at the verdict of Judge Masipa - struggling to understand how she could have reached it.  Even the lay persons amongst us could see that she quite clearly as Martin Hood said - Got it wrong!

Will the State appeal?   Who knows!

But more to the point what of the Steenkamp family?   I wouldn't even dare to imagine how they must be feeling as obviously only they can know the distress and pain of such a Judgement.

I hope that in time this can be rectified in some way, if that means an appeal to the Supreme Court of Appeal if that is what Reeva's family would wish to happen.  I hope for them, it does.
12th September 2014

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