Once again, the Pistorius case has come to prominence in the public mind, with the State’s appeal argued before the Supreme Court of Appeal in Bloemfontein on Tuesday. The purpose of this article is not to debate or discuss the legal issues in any detail, nor to comment on the prospects of success of the appeal, which in any event, would be improper as the matter is sub judice. I simply offer here a few thoughts which arise from the Pistorius case.

One of the most interesting aspects of this case has been the confirmation, if there were ever any doubt about it, that high profile murder cases engage the imagination of the public in a very profound way. The interest in these cases seems to be a combination of morbid fascination, celebrity fan worship, together with everyone’s apparent secret desire to be a legal expert. I can certainly think of no other case in my lifetime which has raised such public interest and emotion. In the past cases like those of the murderer, Daisy de Melker, who poisoned several of her husbands and at least one of her step-children during the 1920s and early 1930s, aroused similar public interest. Often these high profile cases involve violence to women, and salacious surrounding circumstances, such as the famous case of the murder in Oxford Road, Johannesburg of the young and very attractive Bubbles Schroeder allegedly by two wealthy young men.

Public interest is no doubt inevitable. The public interest was just as strong in the De Melker and Schroeder cases, as it was now in the Pistorius case, even though back then there was no internet or television coverage of either trial. Those who attribute to the modern media age the incredible interest in these cases seem to me to be missing the real root of such interest, which is essentially our fascination with these crimes. The level of public debate the Pistorius case has engendered can be seen as both a good and bad thing. On the good side, it seems helpful for any society to engage with itself on questions of public importance, such as when it is legally justifiable to kill in self-defence, whether perceived or actual, as well as for the public to gain some insight into legal principles such as the (now notorious and allegedly unclear) dolus eventualis principle, which I will discuss more fully below.

On the negative side, the public interest in legal principle leads to a great deal of confusion and misunderstanding. It is analogous to the public becoming interested in how to perform fairly complex surgery, and then trying to understand and practice such surgery by means of having it explained to them by certain so-called experts. At the end of the day, you might ask yourself whether you would wish to be operated on by an enthusiast whose medical surgical training had been limited in this way. Legal matters are also specialist and expert in nature, and it takes careful training to maintain a legally correct approach even in matters where the law is relatively simple, such as that relating to murder. The level of public misunderstanding, which has, also, unfortunately been reflected in the views of certain legal experts in relation to the dolus eventualis principle, has been quite astounding.

There is nothing mystifying or unclear about dolus eventualis, which in fact is a very simple principle. I recently watched a YouTube clip where Professor Jonathan Burchell, no doubt the leading expert on criminal law in South Africa, said essentially the same thing. He indicated that the Pistorius case was not one that would set significant precedent in his view, speaking before the trial had even taken place. The fact that one often hears that the “complex and disputed” legal principle of dolus eventualis is at the heart of this case is very unfortunate, as the real issue is intention to act unlawfully, also called knowledge of unlawfulness.

I dealt with these matters fairly extensively in my last Daily Maverick article on the Pistorius case, and so I will not repeat them here. In essence though, dolus eventualis is best understood in contrast to direct intention. Direct intention is where it is the aim and object of the person who is acting, to bring about the unlawful consequence that he or she brings about. This is their goal in their mind, and it is also their main goal in acting. In the case of murder, direct intention constitutes the subjective intention unlawfully to kill another person. Dolus eventualis, on the other hand, is a different type of intention which, also, will suffice for a conviction of murder, provided the other elements of the crime are proved. Dolus eventualis is where one foresees a risk of something happening, and flouts that risk, and it ends up happening.

The really interesting aspect of law in the Pistorius case, which is surprisingly unknown even to many legal professionals, and certainly to the public, is that it is a requirement of the crime of murder (and indeed of any other crime which can pass constitutional scrutiny) that the person who commits the crime must not only have intended to bring about the result in question, but must also perceive themselves in so doing, as acting unlawfully. The person committing the crime must have knowledge of unlawfulness.

This is the issue of putative self-defence; which is best understood in contrast to real self-defence. Real self-defence is a scenario where someone is genuinely attacking you, and you act to defend your life. In order to succeed on a defence of self-defence proper, it must be the case that as a matter of objective fact, your life was indeed under threat, and not that you simply perceived it to be so.

Putative self-defence is simply a scenario where there is objectively no real threat to a person’s life, but they perceive, for one reason or another, that there is such a threat, and therefore, subjectively, they believe that they are defending themselves against a fatal attack. This concept is relatively simple, but it does have one complex element embedded within it; the technical legal reason that a defence of putative self-defence succeeds, is because the person in question does not have the intention to act in an unlawful manner. More precisely, the person acting does not view their conduct, in the circumstances, as being an unlawful killing of another person. On the contrary, for whatever reason is in their minds, the person acting views the killing of the other person as having been done in self-defence, and hence as lawful.

As I said in my previous article, certain legal experts have suggested that if Pistorius foresaw that any person was behind the door, and flouted the risk of killing them, then he has dolus eventualis, and is guilty of murdering them. This simply misses the point. One has to ask the relevant question as to why Pistorius believed it was in the interests of his own self-defence to have fired through that door. And the only way he can succeed on the defence of putative self-defence, in these circumstances, is if the Court accepts that he believed he was defending himself against an attacker, and he believed nothing else at the time of firing the fatal shots.

It is this subjective state of mind that determines whether he intended to act unlawfully, or not. And this is where the identity of the person behind the door becomes of pivotal importance. If the person behind the door is believed to be an attacker, then it is plausible that Pistorius intended to defend himself by shooting through the door. If, on the other hand, the person behind the door was believed to be Reeva Steenkamp, then if this thought was either foremost in Pistorius’ mind (in other words, he knew she was there, and he wished to kill her as a matter of direct intention), or if this thought simply crossed his mind, but was not his direct goal (such as for example if he thought it was an attacker in the bathroom, but also thought for a moment that that attacker might have Reeva with him as a captive, and fired anyway to kill the attacker), he would then have dolus eventualis in relation to killing Reeva unlawully).

There is also a third scenario, where Pistorius knows it is Reeva in the bathroom, and for the purposes of frightening her in the midst of a terrible fight, decides to fire shots through the door. This is a very interesting scenario, as it is not his direct intention to kill her, but rather is to terrify her. However, if the thought also crossed his mind that he might kill her in the process, by accident, or if the shots aimed low somehow fatally injure her, then he would have dolus eventualis in relation to both killing her, and doing so unlawfully.

In my own personal opinion, based on a fairly close watching of the evidence in the middle of the night on TV, I have a personal hunch that it is this last scenario which really occurred. Pistorius had a terrible fight with Reeva, and became extremely enraged and decided to terrify her, and it all went horribly wrong. In that scenario, it may well not have crossed his mind that he could end up killing her. He could have been so over-confident in his own shooting abilities, not to mention whatever other megalomaniacal thoughts he has in his troubled brain, that the thought that he might kill her may well not have crossed his mind. In evaluating something like this, a court of law is always at a great disadvantage in that it cannot know what was, or was not in a person’s mind. Only the person themselves knows this. In normal circumstances, one would simply ask a person what was in their mind, but when they have killed another person, and are on trial for murder, and so for their life, it is also well recognised throughout the history of dealing with human criminal behaviour, that people have an incentive to lie, in order to try to save themselves.

When dealing with questions of what is in a person’s mind, a court will seek to draw inferences on the issue from the conduct of the person in question. I think Pistorius would have great difficulty advancing a version that he had got angry with Reeva, and fired through the door just to teach her a lesson, but did not foresee for a moment even the remotest possibility that she would be fatally injured by him so doing. He fired four shots, with a large calibre pistol, and with the notorious Talon ammunition designed to inflict maximum harm. Indeed, in the small amount of coverage I have seen of the Supreme Court of Appeals proceedings on Tuesday, I observed Supreme Court of Appeal Judge Eric Leach put the question to Advocate Barry Roux that it was quite obvious that anyone who fired shots into the bathroom, would at least have foreseen the possibility that whomever was in that bathroom could be killed as a result. As I understand the reports, Advocate Roux, although he had submitted to the contrary, then accepted that what the learned Judge had put to him (and I apologise to use this phrase again which was used ad nauseam in the trial), was indeed undeniable.

A great deal of the public outcry relating to this case is based on a level of public appreciation that putative self-defence seems to “open the floodgates” for people to make up crazy, and outlandish excuses to try to get out of being convicted of murder. Pistorius told the Court a most unlikely version, the details of which I will not go into here. There are even more fanciful stories of the subjective intention of killers in a putative self-defence context, as I discussed in my previous article. In one case, a man believed that a tokoloshe was in his bedroom, and before turning on the light, grabbed his cane knife and struck the perceived tokoloshe several times so as to neutralise its profound demonic potential for harming him. Upon turning on his light, he discovered to his horror that he in fact had killed his own small child mistakenly believing that the child had been a tokoloshe. Unless the State can prove, beyond any reasonable doubt, that this state of mind was not in fact the one that the killer had on the night, he cannot be found guilty of murder, and the defence of putative self-defence succeeds.

In another famous case, also described in my previous article, a man acted to stop a witchdoctor from cursing him with her staff, as he believed it would be fatal if she brought the staff down in the curse motion. He cut off her head before she could do so, once again with a cane knife, which seems to be the favoured weapon of the putative self-defence killer, at least in some of the famous cases.

One can think of even more outlandish examples. Imagine a person who believes strongly in alien abduction, and is obsessed, day and night, with stories of little grey men coming into people’s rooms and abducting, them for all kinds of strange and interesting experiments, which are conducted on a mothership. Add to this, a group of friends who don’t realise quite how crazy their first mentioned friend is, and decide to play a prank on him where they come into his room one night at 3:00 am, all dressed as grey aliens with large eyes, gathered around his bed. What his no doubt well-meaning, but hapless friends don’t know is that this somewhat deranged individual has been waiting for the day the aliens would come, and sleeps with two loaded Glock pistols under his pillow. He is immediately awakened, and upon seeing the apparent aliens, pulls out his two pistols in Pistorius-like fashion, and proceeds to shoot each of them as many times as possible.

Let us assume that he kills them all. If the State cannot prove that his mental state was anything, other than that he was being attacked by aliens who were taking him to the mothership, potentially to inflict serious or fatal harm to him, then the killer must succeed in this scenario, on a defence of putative self-defence to murder.

One can imagine other examples which seem to give rise to the possibility of severe abuse of this principle simply to get away with murder. Does this sort of example not show that any excuse can be literally made up, and if the State cannot show beyond reasonable doubt that the version is not true, then the killer must effectively get away with murder? One must remember that to prove anything beyond any reasonable doubt is an extremely challenging task, and so, for the State to prove beyond reasonable doubt that the putative self-defence version told by an accused is not true, will always be a challenging task.

It is not unheard-of in a criminal law context for the results of the application of legal principle, taken together with the practical problems of everyday life, to lead to legislative intervention to change the criminal law. For example, in cases where a person is so drunk, and driving a vehicle deprived them of criminal capacity, that they were literally a drunk robot while driving the car, the legislation stepped in and created a crime with the same sentence as murder. In a case of murder the crime would involve killing another person in circumstances where, but for your high consumption of alcohol, you would have been convicted of murder. In order words, the law recognises that there is what lay people like to call a “legal loophole”, and changes the criminal law so as to deal with this.

It is quite conceivable that such a legislative amendment could be made in relation to putative self-defence and, in particular, to set out what the test is for whether the putative self-defence version is sufficient to succeed as a defence, or not. The current position, where the whole burden is simply on the State to disprove the putative self-defence version, has the practical difficulty that in many cases it will not be possible to do so, and a guilty man or woman will indeed get away with murder.

However, in our constitutional era, tinkering with any of the legal requirements for criminal conduct or a criminal conviction is always very complex and challenging, because the whole system of criminal law must be interpreted and applied in such a way as not to violate the fundamental rights of any person, in particular the accused.

For example, in the case of the crime created for drunk robot drivers, it is debatable whether it is constitutionally acceptable to hold someone criminally liable in a scenario where they have made themselves so drunk, that they no longer have criminal capacity to act. To hold such a person guilty of a crime smacks of the Versari doctrine, which was an Roman principle that if you could be blamed for getting yourself so drunk, then you could not be heard to say that you were not guilty of killing a person, because you were so drunk that you had no criminal capacity to act. Such an approach has indeed been confirmed to be unconstitutional by our Courts.

As a final observation, we must also not discount the role of considerations usually referred to as American realism, in relation to how Judges make decisions, and what motivates them. In an ideal world, Judges would make decisions based only on the facts presented to them and a perfect application of the law applicable to those facts. American realism, in contrast to this, holds that Judges are primarily human beings who are motivated by the desire for justice and other desires, and that they will tend to find, and accept, a line of reasoning which comes to the conclusion, or result which they see as just or fair or necessary in the circumstances. I once heard a famous advocate say that he would rather have a case that was bad in law, but strong in terms of fairness in favour of his client, than have a case that was very strong in law but where it was extremely unfair to allow the law to prevail in his client’s favour.

In the Pistorius case, there has certainly been a great outpouring of feelings of outrage, and that there is no justice for the killing of Reeva Steenkamp (A feeling I share). One cannot say to what extent such considerations may, or may not motivate, whether consciously or subconsciously, any of the Judges in our judicial system, and it would be improper to speculate in this regard. However, it would seem somewhat naïve simply to deny that these sorts of considerations play a part in the outcome of these matters, particularly such high profile criminal matters.

While I won’t comment on the merits of the appeal, I do wish to clarify the essential basis of the State’s appeal, which is not that the dolus eventualis principle was misapplied. The State argues, based on my reading of their heads of argument, that Judge Masipa failed adequately to weigh all the evidence relating, inter alia, to the version Pistorius put forward as to his mental state at the time of firing the fatal shots; whether he intended to kill unlawfully or not. While each factual issue on its own is just that, a finding of fact, with which the SCA cannot interfere, the combined legal effect of each fact, and the legal inferences to be drawn therefrom are legal findings, and are subject to the SCA’s jurisdiction. If the SCA overturns the Court a quo, it will likely be for the reason that they accept that the factual findings taken together, were not appropriately dealt with by the trial Court Judge, in formulating her verdict. DM