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| 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.
