Your get out of jail free card from the thought police.
18 November 2017 11:55 (South Africa)
Opinionista Pierre de Vos

Pistorius and dolus eventualis: do the facts support the finding?

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

The acquittal of Oscar Pistorius on a murder charge on Thursday (he may yet be convicted of culpable homicide) has puzzled some lawyers. This is why.

It did not come as a big surprise that Judge Thokozile Masipa found that the state had not produced sufficient evidence to prove beyond reasonable doubt that Oscar Pistorius intended to shoot and kill Reeva Steenkamp, who was allegedly hiding behind the toilet door in his house “in a prestigious gated community in Pretoria”.

Although Judge Masipa highlighted several “peculiar” aspects of the case (for example, why did Pistorius pump four shots instead of one through the toilet door?), she found the evidence produced to try and prove the “premeditated murder” of Reeva Steenkamp was almost exclusively circumstantial.

It would be difficult to convict somebody for murdering his girlfriend merely because the state produced evidence that they had fought on WhatsApp and (contradictory) evidence that neighbours heard them fighting on the night of the killing.

The high-water mark of the state’s case in this regard were the questions raised about how likely it would have been for Pistorius not to notice that Steenkamp was no longer in bed when he grabbed his gun and proceeded to the bathroom. But as the onus falls on the state to prove its case beyond reasonable doubt, it is not surprising the judge found there was not sufficient evidence to convict Pistorius of murdering Steenkamp in a premeditated manner.

However, the judge also found that Pistorius could not be convicted of murder for killing the person he had claimed he believed was an “intruder” locked in the toilet.

In South African law it is not a valid defence to claim that you did not have the intention to kill X because you had in fact intended to kill Y and had killed X by mistake. Thus if Pistorius had intended to kill an intruder (and not Steenkamp), he would still be guilty of murder as long as the state had proven beyond reasonable doubt that he had intended to kill the person behind the door whom he might (or might not) have thought to be an intruder.

It was not possible for Pistorius to rely on self-defence (which would have rendered his actions lawful) because objectively speaking, there was no threat to his life and he could therefore not have acted in self-defence to protect himself.

Although there was some confusion, Pistorius seemed to have offered two different defences focusing on his intention to kill.

First, he argued that he acted in putative self-defence. In other words, he contended that although there was no threat to his life, he genuinely believed that there was such a threat and hence did not have the intention to unlawfully kill anyone.

This defence would have succeeded if the judge had found Pistorius had genuinely believed that his life was in danger and that he was using reasonable means to avert an attack on himself or his property.

As intention is tested subjectively, the pivotal question would be what the actual state of mind of Pistorius was in at the time when he killed the victim. Did he really believe he acted in self-defence and did he really believe he was using reasonable means to avert the threat? As far as I can tell the court did not accept this defence.

During cross-examination Pistorius offered a second defence of involuntary action. If the judge had found that Pistorius had not acted voluntarily he would be entitled to an acquittal if his actions were attributable “to mechanical behaviour or muscular movements of which he was unaware and over which he had no control”. The judge rejected this argument.

Instead the judge found Pistorius lacked not only the direct intention to kill Steenkamp, but also the indirect intention (dolus eventualis) to kill the person he believed was hiding behind the toilet door.

The state can only prove intention via the concept of dolus eventualis where the state can prove that while Pistorius might not have meant to kill the victim (Steenkamp or the putative intruder), he nevertheless foresaw the possibility and nevertheless proceeded with his actions.

In 2013 Judge Fritz Brand reminded us in the Humphreys case that it is not sufficient for the state to show that the accused should (objectively) have foreseen the possibility of fatal injuries to convict him or her of murder on the basis of dolus eventualis. The state must show that the accused actually foresaw the possibility of his actions killing someone (in this case, the person – whomever it might have been – behind the toilet door). It is not about what a reasonable person would have foreseen.

In this case the judge found Pistorius did not actually (subjectively) foresee as a possibility that he would kill the person when he pumped four bullets through the door.

For me the puzzling part of the judgment is the reasoning employed by Masipa to come to this conclusion. Among others, she found that all the evidence suggests he was truly distressed about having killed Steenkamp. How could he subjectively have foreseen that he would kill her if after the fact he were so distressed?

But although this might show that he did not subjectively foresee that he would kill Steenkamp, it says nothing about subjectively foreseeing that he would kill who he had thought was an intruder hiding behind the door. Given all the evidence presented in court about Pistorius’ knowledge of guns and what the bullets he used would do to a person, it is unlikely in the extreme that Pistorius did not foresee that the person behind the door (who he might have thought was an intruder) would be killed.

To my mind the judge did not engage with this issue in sufficient detail to explain convincingly why she found Pistorius did not have the dolus eventualis to kill an unknown person behind the toilet door.

Given that Pistorius himself was unclear about what he felt and believed when he pumped four bullets through the door, and given the absolute improbability that any person (even somebody who is not at all reasonable in his or her actions) would not have foreseen the possibility of killing somebody in those circumstances, the lack of detailed analysis not linked to Pistorius’ intention to kill Steenkamp, raises questions about the finding.

It also raises questions about whether the judge might not wrongly have found Pistorius could not have the requisite dolus eventualis because there was not sufficient evidence that he foresaw that his actions would lead to the killing of Steenkamp (as opposed to the killing of another person hiding behind the toilet door).

Of course, it is not easy for any judge to make a decision about what is in the mind of the accused. In order to convict Pistorius of murder the judge in this case had to look at all the facts and had to decide that she was convinced beyond reasonable doubt that – subjectively – Pistorius had foreseen that by pumping four “zombie stopper” bullets into a toilet door behind which a human being was standing could lead to the killing of that human being. In doing so the mere say so of Pistorius that he did not foresee this would not be the only evidence to consider.

She found that Pistorius did not foresee the killing. The question is whether the facts support such a finding. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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