Monday, December 28, 2015

The Pistorius Case VI: Not Done Yet

The South African Constitutional Court

A  few weeks ago, on December 3rd, the Supreme Court of Appeals in South Africa (or, to use the common abbreviation, the SCA) struck down the High Court ruling in the case against Oscar Pistorius.

Pistorius shouldn't have been convicted of culpable homicide, the SCA stated. Instead, Pistorius had intentionally and unlawfully killed his girlfriend, and in doing so, he had committed murder.

In giving its ruling, the SCA first decided to ignore the so-called Seekoei barrier, which makes it difficult for the prosecution to lodge an appeal at all in such a case. The barrier the Seekoei case raises is mo longer good law, the SCA stated; hence, the appeal could be heard.

The SCA then did what many considered to be the only right thing to do in this matter. It dismissed the High Court's odd and quite illogical reasoning, which was based  on  the notion that if Pistorius believed there was someone in the toilet cubicle when he fired four shots into it, but did not know exactly who that person was, he couldn't have intended to kill that person.

What is interesting about the Supreme Court's ruling is not just its rejection of the High Court's interpretation of intent (or "dolus"), but also what it then proceeded to do.

You see, simply establishing that Pistorius had acted intentionally isn't sufficient to convict him of murder. Pistorius (deliberately, perhaps) made a bit of a muddle of his defence, but it must be assumed that he also tried to convince the High Court that he believed that his life was in danger and that he was therefore justified in shooting. (In fact, this was what many thought was going to be his only defence. It wasn't until Pistorius claimed that he hadn't meant to kill anyone at all that things got complicated and the concept of dolus - and, more precisely, dolus eventualis - became relevant).

What this means is that once it is accepted that Pistorius had the intent to kill, the question must be answered whether or not he could claim to have acted in (putative) self defence.

The SCA could have decided not to deal with this issue at all. It could have chosen to send the case back to another High Court and it would then have been that court's task to deal with this defence. The SCA, however, chose not to do this, pointing out that such a course of action would be "wholly impractical" and that neither the prosecution nor the defence had "pressed" for such an outcome. The SCA then took up the matter itself, which led to the court dismissing Pistorius's stated "genuine belief", and, ultimately, convicting Pistorius of murder.  

The question that now arises, however, is whether, in doing so, the SCA exceeded its jurisdiction. The  validity of the court's grounds for rejecting Pistorius's claim of (putative) self defence is not directly at issue here; what is at stake is whether it was the court's role to decide on the matter at all.

There are essentially two possible problems here. The first is that  the SCA explicitly dealt with the question of whether Pistorius had or had not genuinely believed there to have been a threat. This is obviously a question with important legal ramifications, but it might well be argued that the question itself is a factual one. And if that is so, then it might also be argued that the SCA had no business dealing with it, since the SCA, as an appeal court, must restrict itself to matters of law.

The second problem is that, in reaching its decision, the court denied Pistorius the right to appeal against it. It is, after all, impossible to appeal a decision handed down by an appeal court.  

Given these issues, it is perhaps not too surprising that Pistorius will lodge a separate case with South Africa's Constitutional Court, where he will attempt to establish that his constitutional rights have been violated by the SCA. We know this because that's what he says in an affidavit brought before a court in a recent bail hearing. Because of the affidavit we also know that Pistorius isn't restricting himself to the two problems mentioned above; it is clear that he has further grievances to bring before the Constitutional Court.    

I honestly do not know what the chances are of such a case being successful (at present, it is not even clear that the Constitutional Court will decide to hear the case at all). However, it does seem clear that Pistorius's legal battle will continue for some time to come.

Having said that, I certainly believe that the SCA was essentially right in its decision. Pistorius is, simply put, a murderer. 

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