Thursday, 3 December 2015

The Oscar Pistorius trial: Lady Justice has her final say

I recall that when the judgement of the High Court came out, I had argued that Judge Thokozile Masipa had misapplied the law of dolus eventualis when she acquitted OP of murder but found him guilty of manslaughter. In fact I was even more blunt and said she was wrong.

I was accused by some of publicly expressing ignorance about Roman Dutch law. I accepted it on the chin but still held my ground. I was convinced Judge Masipa had made a mistake and that OP's defence team knew it and that they were dreading the eventual appeal. After all they had let out their case and demonstrated OP's intentions during that night. His evidence-in-chief was his own undoing.

But as a scholar, I do not have to study in a certain jurisdiction to analyse the law of that jurisdiction, although in this case I do have some year of affiliation with the said jurisdiction.
My argument was always that the state had made an error to charge OP with murder 1 (first degree murder). There was no way the state was going to prove that OP intended to kill Reeva on the available evidence. I put it down to the normal pressure that state prosecutors are subjected to in most jurisdictions.

My contention, which the Supreme Court of South Africa has held to be true, was that the state had proved murder 2 (second degree murder as the Americans call it). 

The state led enough evidence to prove that an expert shot like OP, emptying his gun loaded with high penetration bullets into a doorway of a narrow bathroom was a clear demonstration that OP intended to kill whosoever was inside that bathroom. 

OP claimed he thought it was an intruder and not Reeva. That didn't matter. All it did was to change the offence from murder 1 to murder 2. His act showed an intention to kill whosoever was behind that door. If that is not murder in any jurisdiction then I do not know what is, unless he could prefer a good defence to his actions. He was therefore liable for the eventuality of his (wrongful) actions. That is what the law of dolus eventualis is all about.

So considering that the person behind the door was Reeva, one can say the famous words now:
"Justice has been served for Reeva and her family at last"

To this, I can only make a small correction and say:
"Justice has been served for both Reeva and OP"
After all; Lady Justice does not look at the parties. She only adjudicates their cases according to the strength of each side's arguments using the scales of justice held high in her left hand. And when she finds one is in the wrong, do not be fooled with her appearance, that sword she holds in her right hand is for a practical purpose. She will strike down the wrongful party.
Lady Justice always serves and serves right.

Justice has been served.

1 comment:

  1. good analysis it was and it is even now. Masipa was under pleasure from the cameras