Lying in the Sun

Pistorius - No Surprise!

Pistorius - No Surprise!

Thomson  sky News:

What could Mr Pistorius lawyer want to talk to (Judge) about now?

(just before break in proceeding Barry Roux had requested to see Judge Masipa in her chambers)


Well obviously I think now they will talk about the practicalities.  I do see Barry Roux opting for a non- custodial sentence and in order to do so he must start making provision for the alternatives.  One of which is possibly correctional supervision.  I’ve already indicated earlier on that typically he will now seek for the Court’s permission to apply for a probation officer report and a correctional services report.  That takes about 6 weeks to finalise.   Without such a report he is not entitled to be granted correctional supervision as a sentencing option, therefore the right thing for him to do is now to seek that application and indulgence from the Court.   Which means that the matter will now be postponed for quite some time, for them to prepare not only for those reports but also maybe  to file written heads of argument in support of sentencing.


And would you expect Mr Roux to ask for a continuation of bail in other words for op to leave court today on a bail pending sentence?.


Certainly and I don’t see any reason why even Gerrie Nel would oppose it.   The  Court  might also be inclined to find that it’s  a  Schedule 1 offence that  he’s been convicted on therefore there’s  no reason not to extend his bail under the circumstances…no there won’t be any problem with regards to the bail.


The Judge went over the ground of her reasoning for the not guilty on the two versions of murder before she explained why she then found him guilty of culpable homicide.  Do you think  maybe she’s been a  little stunned by some  comments in the newspapers in the media today and she wants to make it absolutely clear what her reasoning was?


That is a point of debate.  And obviously I do think there was good reason why she deemed  it necessary to go back and revisit her arguments, summarise it, maybe even refer to some other case law which she did, to explain more properly.   So I do think that at some stage maye she got the impression that there might be a quarrel with regards her reasoning behind an acquittal on…especially the dolus eventualis event.   So definitely there is something there.


So the reason she gave eventually for finding him guilty of culpaple homicide was the negligent use of a gun.


Sure.  Not only on count one but also on the third count.  He was convicted on the second alternative to the discharging.  Which implies that also there is a finding of negligence.  So on both these instances it was a question of negligence.   The only outstanding issue basically for the court to determine is the degree of negligence involved cause that will typically have an impact on the final sentence to be imposed but I do foresee since all the others basically fell away we might expect either a severe penalty fine because has the financial ability to compensate and to pay a fine in lieu of imprisonment, one, and two an alternative to that, correctional supervision instead of direct imprisonment, so I do see that we might be inclined to see that Oscar Pistorius  won’t spend a day in jail.


A lot of people obviously still confused a little bit about the finer points of law  here in South Africa and how the judge has come to her conclusions, and why she finds him negligent the fact that he fired a gun, but she didn’t find he had the intent to kill either as a sense of murder or a sense of culpable homicide.  

So in other words he fired a gun  but she said he could not have foreseen what the consequences of what that were?


That is the main debate here with regards the dolus eventualis we were talking about whether there was foresee-ability.  I don’t think that is in doubt.  And then also reconciliation.  You have to reconcile yourself with the ultimate result and that’s where there is a difference in the debate.  Lawyers suggest in general that, obviously if you foresee you should have... reconcile with the end result as well.

But Masipa went further and said but listen, from a purely subjective point of view Oscar Pistorius did not foresee the possibility the ultimate possibility, in other words not only that the person was behind the door but also that a death might arise.

Now obviously that will be a possible point of appeal hearing later on if the State decides to take it on appeal because there is definitely uncertainty with regards the correctness of that judgement .

However, and this is the other point of contention.   On the one hand Judge Masipa finds that Oscar Pistorius an unreliable witness, she rejected his versions, ALL his defences that was up there, and then later on par but totally contrary to that finding, she then accepts his total pure subjective stance and accepts that as correct.  In other words she accepts his version that he did not foresee that he could kill Reeva Steenkamp – that is a point of contention!

12th September 2014

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