One Tragic Night (101 page)

With the premeditated murder charge ruled out, Judge Masipa swiftly moved on to the murder charge. Here she had to deal with several dense legal concepts that leave much open to interpretation and were ultimately the source of debate and dispute surrounding her ruling.

Essentially, the state had argued that even if Oscar thought he was shooting at an intruder, he should still be convicted of murder because by shooting through the closed door he had intended to kill a human being and that all the elements of murder
dolus eventualis
had been met. In turn, the defence had contended that the state was trying to reintroduce the concept of ‘transferred malice', which is not part of South African law.

Masipa took some time explaining two separate legal concepts that are sometimes confused:
aberratio ictus,
which literally translated means ‘going astray of the blow', and
error in objecto,
‘error as to the object'.

As Professor James Grant explains,
aberratio ictus
applies when a shooter ‘misses a target'. ‘If I shoot a gun at a particular person, but I miss, the law recognises that the bullet may easily come to rest in a wall, a tree, or fall harmlessly to
the ground somewhere. It could also, of course, strike another person – and this is where things get interesting. Our law used to take the view that this was no defence – you had still killed a human being. It used to do this by “transferring intent” from the intended victim to the actual victim. But we have now shifted to the position that recognises that, if you miss your target, whether you are liable for murder – if the bullet happens to strike another person and kill him or her – must depend on whether you had intention (in law, at least foresight) of this prospect.'

This is very different from scenarios of
error in objecto.
In this case, it doesn't matter if you intended to kill one person but killed another instead, so the identity of the victim makes no difference.

An example of this would be if you wait in a parking lot to shoot Jim; you see who you think is Jim walking towards his car, you fire and the target is killed. But it's not Jim; it's actually Bob who happens to look a lot like Jim.

The problem is that it's easy to confuse these two legal principles.

Professor Grant consistently stated from the outset that this case was not one of
aberratio ictus
as the defence claimed; rather, it was one of
error in objecto.
‘Oscar did not miss his target. He fired at and killed whoever was behind the door. It is therefore not a case of
aberratio ictus.
It is, at best, an immaterial/inessential error (
in objecto
) – no defence,' Grant explains.

Judge Masipa's ruling was in agreement with this viewpoint. She ruled that Oscar's case was not one of
aberratio ictus
and said: ‘My view is here we are not dealing with
aberratio ictus
as there was no deflection of the blow. It would therefore serve no purpose to say anything more about this. We are clearly dealing with
error in objecto
or
error in persona
in that the blow was meant for the person behind the toilet door, who the accused believed was an intruder. The blow struck and killed the person behind the door. The fact that the person behind the door turned out to be the deceased and not an intruder is irrelevant.'

This took Masipa back to what exactly Oscar's intention was: did he have the intention to kill the person behind the toilet door who he mistook for an intruder?

‘The accused had intention to shoot at the person in the toilet but states that he never intended to kill that person. In other words, he raised the defence of putative private defence.'

Masipa explained that murder requires ‘intention' and that the test to determine this intention is subjective. ‘In the present case the accused is the only person who can say what his state of mind was at the time he fired the shots that killed the deceased,' she said.

‘The accused has not admitted that he had the intention to shoot and kill the deceased or any other person for that matter. On the contrary, he stated that he had no intention to shoot and kill the deceased. The court, however, is entitled to look at the evidence as a whole and the circumstances of the case to determine the presence or absence of intention at the time of the incident.

‘In the present case, on his own version, the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely although erroneously believed that his life and that of the deceased was in danger'.

Importantly, Masipa was convinced that Oscar's belief was an honest one – he really did think there was an intruder in the house. This, she said, was due to a number of reasons: ‘The bathroom window was indeed open so it was not his imagination at work when he heard the window slide open. He armed himself with a loaded firearm and went to the direction of the noise. He heard a door slam shut. The door [to the] toilet was indeed shut when he fired four shots at it after he heard a movement inside the toilet. On his version he was scared as he thought the intruder was coming out to attack him. There is no doubt that when the accused fired shots through the toilet door he acted unlawfully, there was no intruder'.

Then Masipa made one of the most crucial statements of her judgment, the one that would be most closely scrutinised by legal analysts. She asked the question she believed to be central to the murder charge (although many believe it was the wrong question): ‘The question is (1.) Did the accused subjectively foresee that it could be the deceased behind the toilet door? and (2.) Not withstanding the foresight, did he then fire the shots thereby reconciling himself to the possibility that it could be the deceased in the toilet?'

Those critical of her judgment argue that the question should not have been about whether or not Oscar foresaw that
Reeva
was behind the door – but rather whether he foresaw that it could have been any human being behind the door.

As Masipa moved towards finality on the murder charge, Oscar heaved in the dock, racked by sobs.

‘The evidence before this court does not support the state's contention that this could be a case of
dolus eventualis
,' ruled the judge.

Barry Steenkamp sighed and leaned forward on the bench in front of him; his advocate leaned across to June and whispered in her ear. Gina Myers covered her mouth with her hand and wept.

Masipa had believed that Oscar's story was reasonably possibly true and, in support, pointed to his behaviour in the minutes after the shooting and the
various versions he presented during his bail application, plea explanation and on the stand. Ironically, it was arguably the greatest criticism of the defence lawyers from their colleagues – that they had given such an extensive explanation at the bail application – that had come to be their saving grace.

‘On the contrary, the evidence shows that from the onset the accused believed that at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident,' said Masipa.

Oscar had given this version to Johan Stander when he phoned him; he said the same thing to Carice Viljoen when she arrived at the house, and to Dr Stipp when he tried to help save Reeva. He also said as much to the police officers when they arrived on the scene.

Masipa agreed with the defence that it was highly improbable that he would have made this up so quickly and be so consistent in his version. He had presented this same story at the bail application before he had access to the police docket and before he was privy to the evidence that was later led in court.

As the judge spoke, Kenny Oldwadge leaned back in his chair and looked skyward. For all the criticism he had drawn from his colleagues for ‘inviting the doctor to the funeral' and for giving such a detailed statement, it seemed that the judge had vindicated him.

Nel continued doodling in his notebook.

Masipa asked the question that underlay the charge. ‘Did the accused foresee the possibility of the resultant death yet persisted in his deed, regardless whether death ensued or not?

‘In the circumstances of this case, the answer has to be “No”. How could the accused reasonably have foreseen that the shots he fired could kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time. To find otherwise would be tantamount to saying that the accused's reaction after he realised that he had shot the accused was faked, that he was play acting, merely to delude the onlookers at the time.'

Ironically, it was Dr Stipp, who the defence had spent much time trying to discredit, who proved to be their most valuable asset. Masipa accepted Stipp's evidence as an independent witness, who had described Oscar's emotional distress, that Oscar ‘looked genuinely distraught as he prayed to God and pleaded with him to help save the deceased'.

‘It follows that the accused's erroneous belief that his life was in danger
excludes
dolus.
The accused therefore cannot be found guilty of murder (
dolus eventualis
),' Masipa ruled. Oscar heaved, mucus streaming down his face.

‘That, however, is not the end of the matter as culpable homicide is a competent verdict,' Masipa said, before breaking for lunch. Although culpable homicide is still a serious crime with a potential maximum 15-year jail term, the relief in the Pistorius camp was palpable.

Oscar spent some time huddled in the dock, Carl and Aimee clustered around him, their arms interlinked as they prayed. The poignant moment was broken when attorney Brian Webber walked over and slapped Oscar twice on the arm – his relief evident.

In the lunch break that followed, journalists were all a bit shell-shocked and a storm of confusion broke on social media, with legal experts called in to help explain the nuances of what had just happened.

The confusion was fuelled by a delay in Judge Masipa's return. Roux and Nel both disappeared into her chambers, the prosecutor with a thick purple legal textbook under one arm. They were accompanied by Darren Fresco's advocate Riaan Louw, possibly there to address Masipa on Fresco's indemnity from prosecution.

When Masipa returned to her seat, it was to hand down her ruling on culpable homicide and it took a mere 13 minutes.

Culpable homicide refers to ‘negligence', so Masipa would have had to decide whether she thought Oscar was negligent or not. For this Masipa had to apply the reasonable person test.

The defence had argued that Oscar's disability had rendered him vulnerable and that someone in his circumstances and with his ability could not be found guilty. Masipa did not agree. ‘Vulnerability is not unique, as millions of people could easily fit into that category,' she pointed out.

She said there were several other options open to Oscar for him deal with the danger. He could have picked up his cellphone to call security or the police; he could have run to the balcony and screamed as he did after the shooting; there was no reason why he couldn't do so before he ventured into the bathroom with a loaded firearm – calling security and running to the balcony would probably have taken as much time if not less than it had taken to go to the bathroom and discharge those four shots. ‘It is also significant that at the time that he heard the window slide open, he was nearer to the balcony than to the bathroom,' she added.

The defence had also argued that growing up in a crime-riddled environment
and in a home where his mother was paranoid and always carried a firearm, placed Oscar in a unique category of people. ‘I agree that the conduct of the accused may be better understood by looking at his background; however, the explanation of the conduct of the accused is just that, an explanation. It does not excuse the conduct of the accused. Many other people have experienced violent crime and have not resorted to sleeping with firearms under their pillows,' Masipa dismissed the argument.

‘If the accused, for example, had awoken in the middle of the night and in darkness saw a silhouette hovering next to his bed and had in a panic grabbed his firearm and shot at that figure only to find that it was the deceased, his conduct would have been understandable and perhaps excusable. In such a case he would not have been expected to call security,' judged Masipa.

But, she said, in this instance this was not the case. ‘The accused had reasonable time to reflect, to think and to conduct himself reasonably. On the facts of this case, I am not persuaded that a reasonable person with the accused's disability in the same circumstances would have fired four shots into that small toilet cubicle.

‘Having regard to the size of the toilet and the calibre of the ammunition used in the firearm, a reasonable person with the accused's disability and in his position would have foreseen that if he fired shots at the door the person inside the toilet might be struck and might die as a result. The accused knew that there was a person behind the toilet door; he chose to use a firearm which was a lethal weapon [and] he was competent in the use of firearms as he had undergone some training.'

In drawing to a close, Masipa asked the questions critical to this charge. Would a reasonable person in the same circumstances as Oscar have foreseen the reasonable possibility that if he fired shots, whoever was behind the door might be struck by a bullet and die as a result? Would a reasonable person have taken steps to guard against that possibility? ‘The answer to both questions is “Yes”, ' she said.

‘He failed to take any step to guard against the resultant death. I am of the view that the accused acted too hastily and used excessive force. In the circumstances it is clear that his conduct was negligent.'