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The Oscar Pistorius appeal

Director of Public Prosecutions, Gauteng v Oscar Leonard Carl Pistorius [2015] ZASCA 204

Today, 3 December 2015, the much anticipated Pistorius appeal judgment was handed down by the Supreme Court of Appeal. This article will provide a summary of this judgment.


Pistorius was initially tried in the Gauteng Division of the High Court, Pretoria on several charges, one of which included the murder of his girlfriend, Reeva Steenkamp. In that court he was found guilty not of murder but of the competent verdict of culpable homicide as provided for in s258 of the Criminal Procedure Act 51 of 1977 (‘the Act’).

The prosecution contended that the trial court erred on certain legal issues and with leave from the trial court, appealed to the SCA on questions of law reserved under s319 of the Act arguing for a conviction of murder.

The powers of the Appellate Division

The appeal was brought in terms of s319 of the Act. This section’s predecessor (s369 of Act 56 of 1955) was judicially decided in the cases of R v Gani 1957 (2) SA 212 (A), R v Solomons 1959 (2) SA 352 (A) and S v Seekoei 1982 (3) SA 97 (A) wherein it was held that the accused must have been acquitted totally of the charge in order for a question of law to be reserved.

The case of S v Basson 2007 (1) SACR 566 (CC) decided in the Constitutional Court overturned the Seekoei decision insofar as the language of the section does not suggest that the State may only request reservations of questions directed at the conviction or acquittal of the accused. As such, there could be no objection to the appeal proceeding in respect of the points of law reserved in the trial court notwithstanding the competent verdict handed down.

As a general rule, an appeal is a rehearing without the leading of evidence. The trial court’s findings of fact and of law may be challenged by having regard to the trial record. However, where an appeal is brought under s319, different considerations apply. As opposed to an accused who has the benefit of appealing against a conviction based on alleged incorrect factual findings, the State may not appeal against an acquittal based solely on findings of fact. Therefore, the State’s appeal is restricted to the three questions of law reserved below and the appeal court cannot interfere with any findings of fact.

The trial

It was never contended that Pistorius was not responsible for the death of the deceased – he had fatally injured her when he fired four shots with a 9mm pistol through the door of a toilet cubicle.

The State tried to argue that an argument had ensued prior to this, that Steenkamp had locked herself in the bathroom to escape him, and that Pistorius had then fired the fatal shots.

Pistorius argued that he had awoken from his sleep, heard a sound in the bathroom and, thinking it was an intruder, grabbed his 9mm pistol and started shouting warnings at the intruder. After hearing further noises he fired four shots at the door. He then retreated to the bedroom and discovered Steenkamp was not there. It dawned on him that it could have been her in the bathroom and when entered the bathroom he found Steenkamp dead.

The Appellate Division noted how inconsistent Pistorius’ version was but found it unnecessary to examine his credibility in any greater detail. Despite the inherent improbabilities and inconsistencies in his version, the trial court concluded that it had not been shown that  the State’s version was true beyond a reasonable doubt and that the State had not shown that Pistorius had fired at the toilet door for any reason other than he had thought there was an intruder behind it. The trial court found the shooting to be unlawful but devoid of intent.

The appeal

The questions reserved were:

  1. Whether the principles of dolus eventualis were correctly applied to the accepted facts and the conduct of the accused, including error in objecto,
  1. Whether the court correctly conceived and applied the legal principles pertaining to circumstantial evidence and/or pertaining to multiple defences by an accused, and
  1. Whether the court was correct in its construction and reliance on an alternative version of the accused and that this alternative version was reasonably possibly true.

Remembering that for a conviction of murder, one of three forms of intent or dolus must be proved. Culpa or negligence is insufficient to secure a verdict. Dolus eventualis, the form of intent primarily at issue, was described by the court as the intention which arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur. It consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility.


Masipa J’s conclusion ‘how could the accused reasonably have foreseen that the shots he fired would kill the deceased or whoever was behind the door’ wrongly applies the relevant test: the test for dolus is subjective, not objective. It is not what was reasonably foreseeable but what Pistorius actually foresaw. Furthermore, this conflicts with the court’s subsequent conclusion that the accused was guilty of culpable homicide on the basis that a reasonable person in the same circumstances would have foreseen the reasonable possibility that the shots fired might kill whoever was in the toilet. The trial court’s conclusion that the accused had not foreseen the possibility of death occurring as he had not had the direct intent to kill shows a misapplication of the test.

A further error was grounded in the trial court’s consideration of dolus eventualis which it centred upon whether the accused knew that the person in the toilet cubicle was Steenkamp and if not, he could not have foreseen that his action could cause her death and, therefore, there could be no finding of murder. Although a perpetrator’s intention to kill must relate to the person killed, it does not imply that he must know the identity of the victim. Instead, the intention can be described as dolus indeterminatus (intention directed at persons of unknown identities) simultaneously with dolus eventualis. The question is not whether Steenkamp was behind the door, but whether there was a person behind the door. Appreciation of identity is not determinative of criminal intent.

This point of law, therefore, is decided in favour of the State.


The subjective state of mind of a person used to determine intent is often inferred from surrounding circumstances and inferences drawn must be consistent with proven facts.

The failure of the court to take into account the evidence of police forensic expert, Capt. Mangena, whose evidence as to the reconstruction of the crime scene was found by the court ‘particularly useful’ is significant. His evidence showed that given the dimensions of the small bathroom, all shots fired would “almost inevitably have struck anyone behind it.” There was nowhere for the deceased to hide. In addition he found that the ammunition used would penetrate a wooden door but would ‘mushroom’ on striking a soft surface such as human flesh. This ammunition is typically used for self-defence. It causes devastating wounds.

These points are circumstantial evidence and are crucial to the determination of whether Pistorius foresaw the possibility of fatal harm. Yet this evidence was ignored by the trial court in its assessment of dolus eventualis. To do so is an error of law.

The second question is therefore answered in favour of the State.


The court noted the vagueness of this question and surmised that the questions asks no more than whether the accused’s version (as accepted in the court a quo) was reasonably possibly true. This is a factual question and as such falls beyond the scope of what the court may decide in terms of s319. In light of the first two questions, the third seems superfluous.

Putative private defence

This is the genuine but mistaken belief that one’s life or property is in danger. He/she acts in self-defence to divert such threat. The principles of this defence are laid out in the case of S v De Oliveira 1993 (2) SACR 59 (A) and are briefly elucidated herein – it is not lawfulness that is in issue, but culpability. The test is objective: can it be said that the reasonable man in the position of Oscar would have believed that his life was in danger and acted in the same way? Even if the accused genuinely believes his/her life or property to be in danger, but objectively viewed it is not, the defence is not one of private defence. His erroneous belief in a life/property threat may exclude dolus and thus murder, but the possibility of culpable homicide remains.

The appeal court found that, notwithstanding the inconsistent version provided for by Pistorius, his statement that he had intended to shoot the intruder placed him beyond the protective ambit of the defence. De Oliviera mandates that the belief must come from rational but erroneous thought – yet the appeal court found that his thoughts were not rational: no rational person could have believed he was entitled to fire a heavy calibre firearm through a closed door without having taken a warning shot. This is prima facie proof of his state of mind – that there was no genuine belief in an imminent threat to life or property.

The ruling

The possibility of death was an obvious result. In firing not one but four shots, such a result became more likely. The weapon used was lethal, the ammunition dangerous and the space limited. This constitutes dolus eventualis, the identity being irrelevant. In the interests of justice, the appeal court set the verdict of culpable homicide aside and substituted it with the correct verdict of murder.

Oscar’s options going forward

Oscar may apply for leave to appeal to the Constitutional Court, and if that proves unsuccessful, he may petition the Chief Justice. However, his appeal would need to be founded on a point of constitutionality, namely that his right to a fair trial was infringed. It is doubtful whether he will elect to appeal at this stage.


It is not for this court to decide the appropriate sentence based on the new verdict. The matter must be sent back to the trial court for sentencing who will take into account whether the portion of punishment already served has any further bearing. The minimum sentence for this conviction is 15 years imprisonment, unless substantial and compelling reasons are tendered as to why the court should deviate from the minimum sentence.

For assistance relating to any criminal matter, please contact:

Basil de Sousa or Tasmin Marlin

Litigation Department, Abrahams & Gross Attorneys

t.  021 422 1323       e.  info@abgross.co.za

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