Lawyers for Oscar Pistorius are due back in court on Tuesday, in a bid to keep the convicted Paralympian from returning to jail. Pistorius was released into house arrest two weeks ago, after serving one-fifth of his sentence for shooting and killing his model girlfriend, Reeva Steenkamp, on Valentine’s Day in 2013. Pistorius was found guilty of culpable homicide in September last year, but prosecutors are hoping to overturn that verdict in the Supreme Court of Appeal in Bloemfontein.

Prosecutors contend that Thokozile Masipa, the judge in the case, made mistakes in applying the law, and that Pistorius should actually be convicted of murder, which carries a minimum 15-year penalty. If the judgement is overturned, Pistorius would have to return to jail within 48 hours of the new verdict.

Proceedings are scheduled to last one day. The panel of five judges, led by Judge President Lex Mpati, is not expected to issue a verdict on Tuesday. It will be announced on a later date. Given the high-profile nature of the case, the decision could be announced sooner rather than later; within weeks, rather than months. As is customary at this stage of the judicial process, Pistorius will not be attending the appeal in person.

There are three possible outcomes: The appeal is dismissed, and Pistorius will serve out the remainder of his custodial sentence at his uncle’s mansion in Pretoria; the appeal is upheld, and the appeals court imposes a new sentence for murder, or the appeal is upheld and a retrial is ordered. Barry Roux, Pistorius’ advocate, has said that Pistorius does not have the money for a new trial.

Although there are several strands to the prosecution’s argument, the biggest issue revolves around the application of the legal concept dolus eventualis, or indirect intention. Did Pistorius foresee the possibility that he might kill someone when he pumped four bullets into his bathroom door? More importantly, did he foresee that killing that person would be unlawful?

In its submission to the court, the prosecution, led by State Prosecutor Gerrie Nel, argues that Pistorius must have considered this possibility, but nevertheless recklessly “decides to take a chance and gamble with the life of the deceased”.

Pistorius’ legal team resists this interpretation. They maintain that Pistorius believed he was acting in self-defence, and that his actions – even if they resulted in someone’s death – do not amount to murder. Since Judge Masipa handed down her decision in September 2014, legal commentators in South Africa have been arguing the merits of the appeal among themselves. Illustrating just how tricky the dolus eventualis issue really is, no consensus has emerged.

“My feeling has always been that if you look at the facts – four shots into a tiny little toilet knowing that there is somebody behind the door and that person isn’t attacking Oscar – well does that not really equal murder? I mean, one doesn’t have to be a fantastic lawyer to determine that,” criminal law expert, William Booth, told News24.

Nicholas Taitz, a litigation attorney, has said that even if Pistorius’ story may seem “extremely unlikely”, it is still up to the prosecution to prove that it is not “reasonably possibly true”.

“This is indeed a difficult legal task for the prosecution, but they will be strongly aided by the contradictions in Pistorius’ own evidence on the question of his mental state,” said Taitz. DM

Photo: South African Paralympic athlete Oscar Pistorius reacts on day four of sentencing procedures at the High Court in Pretoria, South Africa, 16 October 2014. EPA/ALON SKUY/POOL.