One Tragic Night (102 page)

Masipa stopped short of making a ruling on culpable homicide at that point, although her direction was clear as she adjourned for the day.

Oscar was overcome with emotion. Well after the courtroom had emptied, and with a massive throng of journalists awaiting his exit, he spent around half an hour seated in the far corner of the courtroom. Aimee sat half on his lap,
half on the arm of his chair, stroking his head as he scrolled through his phone. Finally, after what must have been an excruciatingly emotional day, he walked out. When asked how he felt the day had gone, he looked straight ahead, said nothing and kept walking.

Did Oscar ‘escape' a murder charge? Did he ‘walk free'? Many people thought so. Legal experts piled into the debate, with many believing Judge Masipa had made a fundamental error in law in her application of
dolus eventualis.
Opinions were offered on social media, in traditional media and all across the country.

Attorney David Dadic tweeted:

Constitutional law professor Pierre de Vos tweeted:

The sense from criminal defence advocates we spoke to was that Masipa had ‘conflated' the concepts of reasonable foreseeability and
dolus eventualis.

‘I've had colleagues phone me today gobsmacked, literally saying, “Do I not understand the law? I would be amazed if Gerrie doesn't appeal!”'

In Grant's opinion, Masipa got all the complicated ‘legal stuff' right but made an error in applying it. ‘What she did was she got the principles of this difficult stuff right. But she hashed the application of
dolus eventualis
to
error in objecto.
There should have been a finding of intention to kill, but there could have been conceivably a finding of lack of intention with respect of unlawfulness. It's conceivable that he could have been mistaken that he was entitled to kill. That would have been a sound foundation for an acquittal on murder.

‘I'm saying that she acquitted on the wrong grounds. The problem is that she gets the difficult theory right, but, in applying
dolus eventualis
to this theory, asks the wrong question. She should have asked: did he foresee the possibility of killing
whoever
was behind the door? Instead, she asked, did he foresee the possibility of killing
Reeva
? She set about answering the wrong question to start with.'

Essentially Masipa's critics were arguing that if Oscar could have foreseen that someone could die when he shot, he should be convicted of murder.

Criminal attorney Ulrich Roux summarised this best in a piece he wrote for
The Guardian:

Dadic distilled the storm of criticism into one simple comparison. ‘Jub Jub the rapper gets in his car. He's drunk and he's drag racing. He gets convicted of
dolus eventualis
because the court decides he must have foreseen a negative consequence to his act. Oscar Pistorius is sober with a gun and shoots four shots into a closed door. He is acquitted of
dolus eventualis
because the judge is of the view that he didn't foresee and is convicted of culpable homicide because he should have foreseen. In my opinion the test has been misapplied by the judge as it is difficult to legitimately believe that a person who shoots at someone four times does not on some level wish to kill that person – that is intent.'

But, as is the case with any contentious judgment, some legal minds believe Masipa got the law exactly right.

University of Cape Town law expert Kelly Phelps explains: ‘As I see it, there were always going to be problems for the state with
dolus eventualis.
The one pertains to the actual boundaries of the definition itself and the other pertains to this legal rule that they were trying to evoke in
error in objecto.
This is such a technical part of the law. This is not the type of debate you see in courts every day. It's nuanced esoteric debate that academics have amongst themselves. I'm not surprised that people are missing the nuance.

‘The state tried to argue
dolus eventualis
in a variety of
indeterminatus
and what that means in laypeople's words is “general intention”, meaning “I didn't
particularly care or know who I was going to kill but I foresaw the possibility that I would kill someone but I proceeded none the less”. So when the state put to Oscar but you didn't know who was behind the door, there could have been a child or a homeless man, he said “Yes”. The problem for the state was that if it had been a child, or a homeless man, Oscar would be guilty of murder because he hadn't excluded the possibility that it was either a child or an intruder and proceeded anyway. However, he had excluded the possibility in his mind that it could be Reeva in the bathroom; therefore he cannot have
dolus eventualis
with respect to killing her because he subjectively, genuinely did not foresee the possibility that she could die and proceeded nonetheless. It's not fulfilling the legal boundaries of
dolus eventualis.
I think the finding is exactly right,' says Phelps.

Writing on The Law Thinker website, editor Brad Cibane backed up Masipa's ruling, pointing a finger instead at what he called Gerrie Nel's ‘cockup':

In South Africa, while there is no jury system, there is an appeal system. This means that Masipa's decision could be taken on appeal to a higher court, the Supreme Court of Appeal in Bloemfontein, and ultimately, if applicable, to the Constitutional Court in Braamfontein.

However, the state can only appeal a ruling after sentencing is finalised and if a judge is found to have made an error of law and not an error of fact. In the wake of the verdict, most commentators insisted an appeal was inevitable. But some believe that Masipa's so-called error was one of fact and not law, rendering an appeal impossible. Cibane is one of these. ‘What Pistorius actually thought is a factual finding. Therefore, it will be extremely difficult, if not utterly impossible, to overturn Masipa J's findings on the facts as presented or proven by the State,' he wrote in his blog.

For the defence to appeal a culpable homicide conviction also comes with risk and potential complications because a higher court could overturn Masipa's judgment and impose a murder conviction.

On the morning of the second day of judgment, newspapers trumpeted the previous day's news – Oscar Pistorius would be acquitted of murder. However, the dailies were also filling column space with quotes from legal experts debating the merits of Masipa's judgment. She, in the meantime, was likely cocooned away from all the noise, as she seemed to have done successfully throughout the trial. As her blue-light cavalcade brought her down Madiba Street shortly after dawn, it's possible she had no idea of the dust she had kicked up.

The previous afternoon Masipa had stopped short of convicting Oscar of culpable homicide and there was still space for her to acquit him entirely. What would her final verdict be? She also had to make a finding on the three gun-related charges Oscar faced: the sunroof incident, the Tashas shooting and the ammunition charge. In addition, Masipa would have to make a finding on Darren Fresco's indemnity and whether he had been a truthful witness with regards to the Tashas incident.

When Masipa took her seat on the bench, she went straight to Count Two – the alleged sunroof shooting – and summarised the facts. Two witnesses had been called to testify to this charge: Oscar's ex-girlfriend Samantha Taylor and Darren Fresco. Their versions had differed considerably and Oscar had accused them of conspiring against him. He denied that the shooting had happened at all.

Masipa agreed that Taylor and Fresco's versions of how, where and when the incident happened were so dissimilar that ‘one may be tempted to think they were talking about different incidents'. The judge emphasised she had to approach their evidence with caution.

She found that Fresco was not an impressive witness on this particular count. ‘In fact, he was proved to be a dishonest witness,' said Masipa, referring to the photograph produced by Roux during cross-examination that showed that Fresco was driving the car when he had claimed it was Oscar. She noted that Fresco couldn't say with certainty where the incident had happened, and he told an ‘unlikely story'. With regard to Taylor, Masipa said it was clear that
she had been hurt by the manner in which the relationship had terminated. But this didn't mean ‘she was out to falsely implicate the accused'. In fact, Masipa found that it was Taylor's version rather than Fresco's that had ‘a ring of truth' to it.

But this was not enough – the state had to prove its case beyond a reasonable doubt and, because of crucial contradictions by the state witnesses, Masipa found: ‘The evidence placed before this court falls short of a conviction in a criminal matter. This court's conclusion is that the state has failed to establish that the accused is guilty beyond reasonable doubt and has to be acquitted.'

Masipa moved on to Count Three, the discharge of a firearm at the Tashas restaurant in Melrose Arch. Boxer Kevin Lerena had testified on this charge, so too had Fresco who had been offered indemnity for his potentially incriminating evidence. Roux had already accepted a degree of guilt on behalf of his client during closing argument so a finding of guilty was likely.

There had been some dispute about whether or not Oscar had actually pulled the trigger or what had caused the gun to go off, but Masipa was not distracted by this.

‘In my view it really does not matter what caused the firearm to discharge as that will not assist this court in determining whether the accused was negligent. No one has submitted that there was intention on the part of the accused. What is relevant is that the accused asked for a firearm in a restaurant full of patrons and that while it was in his possession it discharged. He may not have intentionally pulled the trigger; however, that in itself does not absolve him of negligently handling a firearm in circumstances where it creates a risk to the safety of people and property and not to take reasonable precautions to avoid the danger.'