*****
Today we
heard the news that the Constitutional Court has declined to hear Oscar's
Pistorius appeal.
I have not
read the ruling, insofar as there actually is one. I did, however, read the
defence's application for the appeal some time ago. And on the basis of what
was put forward by the defence, I felt that Pistorius's chances of successfully
challenging his murder conviction were slim indeed.
Let me
explain why.
Essentially,
the defence laid out two grounds for their appeal before the Constitutional Court. Firstly, it claimed that the
Supreme Court of Appeals (which had handed down the murder conviction back in
December) had acted "unconstitutionally when it rejected the factual
finding of the Trial Court and replaced it with a contrary factual finding of
its own." The factual finding in question is the finding that Pistorius
genuinely and honestly believed he was under threat.
Secondly, the
appeal contended that the Supreme Court (or SCA) judgment rests on "errors
of law". That is: the SCA erred in finding that dolus eventualis was
present. It also erred in applying an objective test to the question of whether
or not putative self defence could be claimed.
Let's have a
better look at these arguments. I'll begin with the second ground, the
assertion that errors in law were made. The reason I'm doing this is because I
believe it to be fairly clear that these "errors" could not form any valid
reason for the Constitutional Court to set aside the SCA's ruling.
Why? Well
because, simply put, they're not constitutional. The assumed existence of
"errors in law" does not mean that the SCA acted unconstitutionally. It
may mean that the SCA acted wrongly, but that is not the same thing at all.
Consider
this: all sorts of courts hand down all sorts of rulings. In some cases, those
rulings may apply the law wrongly; the fact that such mistakes happen is
inevitable. This does not mean, however, that in those cases a party's
constitutional rights are trampled on. If this were different, any party could at
any time hop over to the Constitutional Court and ask that court the retry the
case; the Constitutional Court would then simply become a further
appeal court.
So
"errors in law" do not equate with acting unconstitutionally, and
claiming that such errors were made does not mean the Constitutional Court should get involved.
It should
be remembered that, under most constitutions, one is guaranteed a fair trial,
but that no constitution can ever guarantee that the outcome of all trials is correct.
The defence,
in fairness, realised this, at least to a certain extent. It tried to
circumvent the problem by stating that the errors made are not just pertinent
to Pistorius, asserting that "for as long as the SCA judgment stands and
is not set aside, large numbers of accused persons will have their cases
determined in accordance with the (incorrect) approach laid down by the SC."
As such, it attempted to establish that an aspect of general public importance
is involved.
However,
why would this sway the Constitutional Court? If "errors in law" were
made, courts (not to mention universities, legal institutions and the like) will
realise this and not allow themselves to influenced by this single judgement. In
fact, the SCA itself will no doubt soon remedy the situation. As such, the
errors are by definition not of general public importance, and they are most
certainly not the sort of errors the Constitutional Court should address.
So, in
short, I do not find it surprising that Pistorius was not granted the right to
appeal on this ground.
At first
glance, things are a little less clear it comes to the other ground for appeal,
though. Let's have a look at the arguments involved.
The defence
maintained that the SCA exceeded it jurisdiction when it decided that Pistorius
did not genuinely and honestly believe that his life (or that of Reeva
Steenkamp) was in danger. It points out that the High Court had accepted
Pistorius's "honest belief", when that court stated the following:
"(...) on his own version the accused suspected that an intruder
had entered his house through the bathroom window. His version was that he genuinely, though
erroneously, believed that his life and that of the deceased was in danger.
There is nothing in the evidence to suggest that this belief was not honestly entertained."
This
assertion, the defence maintained, amounts to a matter of fact. As such, the SCA
could only accept it; it had no power to re-examine the assertion, let alone to
reject it and find that Pistorius had not genuinely believed his life to be in
danger. And because the High Court had decided this, the SCA had to accept that
Pistorius was entitled to a claim of putative self defence.
If the
defence had been right, I believe that its appeal could very well have been successful.
The SCA can - roughly put - only look at issues of law. It cannot deal with
matters of fact. If it nevertheless does so, it does indeed exceed its
jurisdiction and that would then be an issue the Constitutional Court could and should deal with. So, in
theory, the defence's arguments here could well have been valid.
Having said
that, though, I don't think the defence is right at all. In particular, I
believe that the defence quite deliberately misrepresented what the High Court
had actually said.
Yes, the
High Court found that Pistorius honestly believed that his life was in danger. However,
that is not sufficient for a putative self defence claim to succeed. For such a
claim to be successful, it must also be established that a number of other,
equally crucial, elements existed. For example, and at the very least, it must
be established that the accused believed that he was justified in acting the
way he did, which inevitably requires, first and foremost, that he had the actual intention to defend
himself.
The High
Court did not, however, establish this at all. The court accepted Pistorius's
"fear", and it also accepted that this fear was "honest",
but that is as far as it went. In fact, although the court's reasoning here is
oblique, it seems to have felt that Pistorius could not have acted in putative self defence. Consider the following
observation by the court:
"Counsel for the state, correctly in my
view, submitted that if the accused never intended to shoot anyone, he cannot
rely on a defence of putative self defence".
And
consider, too, that the court, elsewhere in its ruling, did indeed find that Pistorius
had not intended to shoot anyone.
In other
words: insofar as the High Court had decided on the putative self defence
claim, it seemed to have rejected it. Not because it felt that Pistorius's
belief was not genuine, but because it felt that such a belief was in itself insufficient.
So it appears that Pistorius's constitutional appeal simply misrepresented what the High
Court actually determined. The High Court did not honour the putative self
defence; if anything, it rejected it.
There is another
- more legal - way to look at this. As I mentioned above, the defence tried to
argue that the High Court's assertion that Pistorius "honestly
believed" his life was in danger is a factual issue, and one that the SCA
must therefore accept. It then moves on to assert that, given this belief, the
putative self defence claim must be honoured. This line of reasoning supposes
that the term "honest belief" - as used by the High Court - does in fact encompass all the legal
elements of the "belief" necessary for a putative self defence claim
to succeed.
As stated
above, that doesn't seem correct. But even it if were to be true, one would
then immediately have to accept that the High Court's finding of "honest
belief" includes a decision on all the legal elements required by law for
a putative self defence claim to succeed. And that, in turn, means that the
High Court's finding is, by definition, not merely a factual matter, but a
matter of law as well. Which in turn means that the SCA could clearly take it
into account.
Looking at
the matter this way, one reaches the same conclusion: the SCA did not exceed
its authority when determining that Pistorius could not have acted in putative
self defence. And as a result, this ground for the appeal failed as well.
Is that the
end of the matter? Well, yes. But there is something else to be said. After
all, I may have discussed the issues the affidavit for appeal raised, but
I have not discussed two issues on which it was curiously silent.
Firstly, the
appeal did not contend that Pistorius's trial was unfair due to the
overwhelming attention it got in the media and the fact that it was televised.
Secondly, it did not contend that the SCA overstepped its bounds in deciding upon
Pistorius's putative self defence claim because it gave that decision itself
(instead of referring the case back to anther High Court).
As far as I
know, the first of these two grounds is probably not that strong, for the very
simple reason that Pistorius would have been too late in raising it. He did
object to the trial being televised at the time, but after the court made its
decision on the matter he took no further action. He's just too late now. I
would imagine this to have been sufficient reason not to attempt any appeal on
this matter, but I do point out that there were many indications that this
matter would form a important part of any appeal process. As such, it is a
little surprising that it vanished into thin air.
The absence
of the second possible ground is a bit more of a puzzle, though. If the High
Court had reached exactly the same decision on putative self defence as the
decision reached by the SCA, Pistorius would have had the opportunity to appeal
against it. The High Court did not, however; it never clearly and equivocally
decided on this claim at all. It seems - as I stated above - to have felt that
the claim should be rejected, but it never really tackled the issue head-on.
As a
result, the decision by the SCA was the first unambiguous and fully
substantiated decision on the matter. The problem is, though, that since it was
a decision given by the SCA - the appeal court itself - there was no
possibility to appeal against it.
Because of
this, it might be argued that Pistorius's right to appeal - which is, I point
out, a constitutional right - had somehow dissipated. Now I realise that this
argument can be countered by simply pointing out the obvious (which is that we
know exactly what such an appeal would have amounted to, given the decision by
the SCA) but I am not so sure that is sufficient. If one has the right to
appeal, one has that right, regardless of what the chances of such an appeal
are.
It should also
be remembered that the prosecution did not directly appeal against the High
Court's decision on putative self defence; the SCA's ruling on the issue was
therefore not necessary and, given the limitations of that appeal, not very logical
either. One might therefore also attempt to assert that, in dealing with the
putative self defence claim as it did, the SCA disallowed Pistorius adequate
time and facilities to defend himself, which would mean that the appeal trial
was, in this regard, essentially unfair. That would again be a constitutional
matter.
However, as
I said, this simply was not an issue that the defence raised with the Constitutional Court at all. And in any case, given the
dismissal by the Constitutional Court, it's all water under the bridge
now.
Having been
convicted of murdering Reeva Steenkamp, and that decision now being irreversible,
Pistorius will be sentenced accordingly in April. Justice has been done.
