In her excellent essay on the murder of Reeva Steenkamp, Bantu in the Bathroom, Jacqueline Rose concludes: “Depending on how you look at it, the killing of Reeva Steenkamp was either a sex crime or a race crime.” Either Oscar Pistorius killed his girlfriend in a fury during a domestic argument or (in his version), he killed her while believing that he was killing a (black) intruder breaking into his house. While the Supreme Court of Appeal (SCA) was not permitted to revisit the question of whether this was a sex crime, it did confirm that unless your life is really threatened or unless you (those concerned will know who I am addressing here) truly believe your life is threatened, you commit murder when you kill a (real or imagined black) intruder in your own home.
The first tweets about the murder of Reeva Steenkamp informed us that Oscar Pistorius may accidentally have shot his girlfriend because he mistook her for a burglar. As journalist John Carlin writes in Chase Your Shadow: The Trials of Oscar Pistorius, “if his story were true – and even if it were not – the faceless intruder of his imagination [featured in those first tweets] had to have had a black face, because the fact was that for white people [in South Africa] crime mostly did have a black face”. It is therefore not surprising that a sizeable number of people lauded the High Court judgment for declining to convict Pistorius of murder, and opted for a conviction on culpable homicide instead.
Yesterday the SCA – in Director of Public Prosecutions, Gauteng v Pistorius – reversed that judgment, and confirmed that Pistorius is guilty of murder in terms of the principle of dolus eventualis. The judgment confirms that irrational fear of the the (black) other, or anxiety about an indeterminate threat posed by an unnamed and faceless intruder, cannot justify the killing of a human being (be it your girlfriend or an imagined – black – intruder) that poses no threat to you, and that you could not possibly have believed posed a threat to you.
It is important to note that the State could not appeal the factual decision made by the trial court which rejected the State’s version that there had been a disagreement between the Pistorius and Steenkamp that led Reeva to hide herself in the toilet to escape from him, before being shot. The State could thus not appeal the finding that Pistorius did not have the direct intention to murder Reeva Steenkamp.
Instead, the State’s case before the SCA therefore revolved primarily on whether the trial court had erred with regard to the issue of dolus eventualis. An accused can only be convicted of murder if the State can prove beyond reasonable doubt that the accused unlawfully caused the death of another person with the intention (called dolus) to do so. In cases of murder, there are principally two forms of dolus which could arise: dolus directus and dolus eventualis.
A person acts with dolus directus if he or she commits the offence with the object and purpose of killing the deceased. (I fight with my girlfriend, she flees to the toilet, I grab my gun, rush after her, and pump several bullets through the locked toilet door with the direct intention to kill her in order to end the argument and to protect my frail ego.) A person’s intention in the form of dolus eventualis is different. It arises, as the SCA explained:
“If the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore ‘gambling’ as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility….”
(I hear a noise in my bathroom and believe a – black – intruder is awaiting me there, ready to extract revenge on me for 350 years of oppression and exploitation by my white forefathers, and my continued privilege associated with this oppression. I take my gun, run to the bathroom, trembling with fear, and shoot through the toilet door, knowing that I may well kill the – black – person behind the door but not caring whether I kill this person who poses no threat to me.)
The High Court found that Pistorius could not “reasonably have foreseen” that the shots he fired would kill Reeva or whoever was behind the door. It found that, as Pistorius did not foresee that Reeva Steenkamp was behind the door – having, perhaps, thought that there was a (black) intruder behind the door – he could not possibly have had the intention (even in the form of dolus eventualis) to have killed Reeva. But, as the SCA pointed out, the High Court made at least three fatal legal mistakes in coming to this conclusion.
First, the High Court wrongly applied an objective, rather than a subjective approach to the question of dolus. The issue was not what was reasonably foreseeable when Pistorius fired at the toilet door, but whether he – Pistorius – actually foresaw that he might kill the person behind the door when he fired four bullets through it.
Second, the High Court seemed to have found that the presence of a person behind the door was not reasonably foreseeable. But this “is at odds with its subsequent conclusion that the accused was guilty of culpable homicide on the basis that a reasonable person in the same circumstances would have foreseen the reasonable possibility that the shots fired at the door of the toilet might kill whoever was in the toilet”. Why fire at a closed door if you did not believe that there was somebody behind the door?
The third fundamental error made by the High Court was that its consideration of dolus eventualis centred upon whether Pistorius knew that the person in the toilet cubicle was Reeva. Its conclusion that dolus eventualis had not been proved was premised upon an acceptance that, as Pistorius had thought Reeva was in the bedroom, he did not foresee that she was the person in the toilet.
“Simply put, the finding was that as the accused did not realise that it was Reeva in the toilet, he did not foresee that his action in shooting could cause her death and he could not be held guilty of her murder.”
The court failed to understand that the State does not have to prove that an accused had the intention to kill a specific identifiable person. All it has to show is that the person had the dolus eventualis in that he foresaw that his actions could kill somebody (anybody) and decided: what the hell, let me continue and do this in any case. As the SCA explains:
“Although a perpetrator’s intention to kill must relate to the person killed, this does not mean that a perpetrator must know or appreciate the identity of the victim. A person who causes a bomb to explode in a crowded place will probably be ignorant of the identity of his or her victims, but will nevertheless have the intention to kill those who might die in the resultant explosion.”
This speaks to the very heart of the problem with the High Court’s reasoning. To make this point crystal clear, the SCA explained the issue as follows:
“What was in issue, therefore, was not whether the accused had foreseen that Reeva might be in the cubicle when he fired the fatal shots at the toilet door but whether there was a person behind the door who might possibly be killed by his actions. The accused’s incorrect appreciation as to who was in the cubicle is not determinative of whether he had the requisite criminal intent. Consequently, by confining its assessment of dolus eventualis to whether the accused had foreseen that it was Reeva behind the door, the trial court misdirected itself as to the appropriate legal issue.”
The question was, thus, whether Pistorius “gambled” with the life of the person behind the door by proceeding with pumping four bullets through the toilet door despite foreseeing that this might cause the death of the person behind the door. The SCA found that Pistorius did gamble with the life of the person behind the door.
It did not assist Pistorius that – as the High Court found – he was “a very poor witness”. His version varied substantially.
“At the outset he stated that he had fired the four shots “before I knew it” and at a time when he was not sure if there was somebody in the toilet. This soon changed to a version that he had fired as he believed that whoever was in the toilet was going to come out to attack him. He later changed this to say that he had never intended to shoot at all; that he had not fired at the door on purpose and that he had not wanted to shoot at any intruder coming out of the toilet. In the light of these contradictions, one really does not know what his explanation is for having fired the fatal shots, an issue to which I shall revert in due course.”
Given the fact that he was such a disastrously unreliable witness, it was not difficult for the SCA to find that Pistorius must have foreseen and reconciled himself to the death of a person behind the door. On his own version:
“When he thought there was an intruder in the toilet, the accused armed himself with a heavy calibre firearm loaded with ammunition specifically designed for self-defence, screamed at the intruder to get out of his house, and proceeded forward to the bathroom in order to confront whoever might be there. He is a person well-trained in the use of firearms and was holding his weapon at the ready in order to shoot. He paused at the entrance to the bathroom and when he became aware that there was a person in the toilet cubicle, he fired four shots through the door. And he never offered an acceptable explanation for having done so.”
As a matter of common sense, at the time the fatal shots were fired, it was an obvious possibility that whoever was behind the door (Pistorius’s girlfriend or an imaginary black man) would be killed. And in firing not one, but four shots, such a result became even more likely. But that is exactly what Pistorius did. Although a court, “blessed with the wisdom of hindsight”, should always be cautious of determining that because an accused ought to have foreseen a consequence, he or she must have done so, in the present case “the inference is irresistible” that he did foresee that his actions would cause the death of another human being. He thus had the dolus eventualis to commit murder.
This was not the end of the matter. If you shoot and kill and intruder you may still be acquitted of murder if it could be shown that you acted in self-defence or that you genuinely but erroneously believed that you were acting in self-defence. One of the (many) defences offered by Pistorius was exactly that he believed that he acted in self-defence – so called putative self-defence. The SCA rejected this argument, pointing out that when Pistorius testified, he stated that he had not intended to shoot the person whom he felt was an intruder. How could he then argue that he shot the person because he genuinely believed he was acting in self-defence?
The defence implies rational but mistaken thought. The problem is that if Pistorius genuinely believed that his life was in danger, this was “not the product of any rational thought”.
“The person concerned was behind a door and although the accused stated that he had heard a noise which he thought might be caused by the door being opened, it did not open. Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him. In these circumstances, although he may have been anxious, it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot.”
Because his claimed fear was not rational (fear of the black Other never is), Pistorius was “required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him” in “order to disturb the natural inference that a person intends the probable consequences of his actions”.
“This the accused did not do. Consequently, although frightened, the accused armed himself to shoot if there was someone in the bathroom and when there was, he did. In doing so he must have foreseen, and therefore did foresee that the person he was firing at behind the door might be fatally injured, yet he fired without having a rational or genuine fear that his life was in danger. The defence of putative… self-defence cannot be sustained and is no bar to a finding that he acted with dolus eventualis in causing the death of the deceased.”
The SCA thus held that Pistorius was guilty of murder. It referred the case back to the High Court to reconsider the sentence. The High Court will now have to impose a mandatory minimum sentence of 15 years unless “substantial and compelling circumstances exist that justify the imposition of a lesser sentence”. Whatever it decides, Pistorius is likely to spend several more years in jail. Whether he would be spending this time in jail for committing a sex crime or a race crime, we will probably never know. DM
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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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