The Pistorius Case V: The Seekoei Barrier

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This is a seekoei. Now, how do you get past it?

It's been over a year since my last posting on the Pistorius trial.

Back then (on September 11th 2014, to be exact), the judge was busy reading her verdict. And whilst she wasn't done yet, a few things were obvious.

The first was that Pistorius would not be found guilty of murder (he was, in fact, convicted of culpable homicide the next day). The second was that the judge's reasoning seemed, from a legal (and logical) point of view, to make little sense.

I said then that I would return to the case once I got my head unbefuddled. Well, I suppose it's as unbefuddled now as it will ever be. Besides, there are good reasons to look at the case again now, since yesterday the prosecution's appeal was heard by the Supreme Court of Appeal (the SCA). The question the court will have to answer is whether the earlier verdict should be upheld, or whether it must be struck down.

Now I've already said that the verdict makes little sense. Back in 2014, I pointed out a few flaws; I'll mention a few more later on. The thing is, though, that even if one were correct in assuming that the ruling is simply wrong, this does not mean that it can and will be quashed.

There is, firstly, a technical hurdle to be surmounted.

It is this: under South African law, it can be argued that in a case handled by a High Court (as opposed to a lower court), the prosecution can only appeal if the accused is acquitted. In fact, this was exactly the argument accepted by the SCA (or Appellate Division, as it was known then) back in 1982, in a case known as the State v. Seekoei. That decision has been widely criticised, and the prosecution in the Pistorius case has stated that it can no longer be considered valid. Nevertheless, the SCA has not (yet) retracted it.

What this means is that, when it comes to the possibility of an appeal, there is at present such a thing as the Seekoei barrrier, and the Pistorius ruling runs right into it. After all, the Pistorius decision was handed down by a High Court; furthermore, Pistorius may not have been found guilty of murder, but he was convicted of culpable homicide and therefore not  granted a (full) acquittal. In short, if Seekoei still stands, the prosecution's appeal will fail, regardless of the errors in the Pistorius ruling.

To make matters a little more complicated, even if the SCA were to decide that the Seekoei rule was no longer applicable, it might still decide that an appeal is not permissible. The Seekoei rule is based on a particular interpretation of Section 322 of the South African Criminal Procedure Act. The SCA could, in theory, decide that that interpretation is no longer valid, but then accept an interpretation that nevertheless rules out the possibility of an appeal in this particular case.  

The prosecution's first hurdle is, in other words, quite daunting. Having said that, though, I should immediately add that the comments made by the judges in court yesterday did seem to indicate a certain willingness on their part to consider an appeal.

Even if that were to happen, though, there are further obstacles. Foremost among these is the question as to whether the judge's ruling erred on matters of fact, or whether she stumbled on matters of law. If it is the former, an appeal is again ruled out, since you can only appeal against matters of law.

Now in this case the judge certainly erred on the facts - or, to be a little more precise, she erred in her reasoning on factual matters. Last year I already commented on this, pointing out, for example, that she seemed to believe that the fact that a window was found open after Reeva Steenkamp was shot indicated that "it was not [Pistorius's] imagination at work when he thought he heard the window slide open". This is clearly a non-sequitor; it makes no sense whatsoever.

However, in appeal, such errors can not be touched. They are factual and therefore impervious, so to speak.

Thankfully for the prosecution, however, the judge seems to have erred on the law as well. In particular, she seems to have quite confused the legal criteria applying to the various questions of the case. 

Nowhere is this more prominent than in the following part of her ruling:

            "I now deal with dolus eventualis or legal intent.  The question is:

            1. Did the accused subjectively foresee that it could be the deceased behind
                the toilet door and

            2. Notwithstanding the foresight did he then fire the shots, thereby reconciling
                himself to the possibility that it could be the deceased in the toilet."

However, when it comes to dolus eventualis, those are not the questions. Specifically, when dealing with the question as to whether  the required intent did or did not exist, it is not relevant whether Pistorius foresaw that the deceased (Reeva Steenkamp) was in the toilet cubicle. What is required is the foresight that someone was in the cubicle.

In fact, the whole notion of whether the intent required by dolus eventualis was or was not present is given by the (un)likelihood that firing shots through a closed door into a small cubicle will kill (or at least severely harm) the person inside that cubicle. It has nothing to do with the identity of that person at all.

Now, you might think that the judge, in mentioning "the deceased", simply misspoke, and that she meant "the person in the cubicle". However, it is clear she did not, since she goes on to substantiate her reasoning by pointing out that Pistorius could not have foreseen Reeva's presence since he thought she was still in the bedroom. In other words, it is clear she is thinking specifically about Reeva. As a result, it is also clear that she is applying the wrong yardstick.

But guess what? Having come to this conclusion, one still cannot say that the judgement can and will be struck down. Even establishing that there were (serious) errors in law need not be enough. The reason for this is that it is quite possible to have an erroneous ruling that nevertheless gets its outcome - the decision that Pistorius was guilty only of culpable homicide - right. 

In this case, this means, among other things, that one must again pose, and then answer, the question of whether the intent required by dolus eventualis was present. In other words, one must ask whether Pistorius foresaw that firing his gun could kill someone.

Interestingly enough, the judge, in her ruling, has gone some way towards answering that question herself. When talking about culpable homicide, she asks herself the question whether "a reasonable man would have foreseen the reasonable possibility that if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result".  Her answer is a simple "yes".

It should be noted, however, that when dealing with the issue of culpable homicide, one should apply an objective norm (the question becoming not whether Pistorius foresaw the consequences of his action, but whether "a reasonable man" would have foreseen them).  Nevertheless, I personally can't really see how, in this case, the foreseeability of "the reasonable man" would be very different from the foreseeability of Pistorius. It is true that, during the trial, it appeared that Pistorius might suffer from some sort of anxiety disorder and that, as a result of his handicap, he had had a "fight" instead of a "flight" response to perceived threats. Whilst these issues may explain why Pistorius would be quicker to shoot than an average man, they do not seem to be relevant to the question of foreseeability.

So, when all's said and done, what are we left with? Well, nothing quite yet. The Supreme Court has "reserved" its judgement. In other words, we'll simply have to wait and see when it decides to decide.