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The Pistorius appeal has helped restore South Africa’s faith in the law


Nearly three years since that fateful Valentine’s night when Oscar Pistorius shot dead his girlfriend, Reeva Steenkamp, it feels like the case has permeated South African society so completely that it’s become impossible to escape.

By theguardian

Just when we think we can move on, it bubbles back to the surface. Now, our headlines and Twitter timelines are full of debate around the state’s appeal to the supreme court yesterday, where it was argued that Thokozile Masipa’s judgement of culpable homicide should be upgraded to murder.

But the decision to appeal is far more nuanced: it was a crucial step to clarify aspects of the law, to create a precedent beyond the theatrics of such a big case that has gripped the world.

Tuesday became known as “dolus eventualis day”, a chance to get some clarity on the once obscure legal principle thrust into the global spotlight by the Pistorius case: “It hinges on whether an accused did foresee the outcome of his actions, rather than whether they should have,” reported the Guardian yesterday.

A public eduction

As much as we might resent the Pistorius case, it has successfully educated the general public about how the law and the courts work.

For those of us watching the appeal live on TV, it was immediately clear that the supreme court is in a different ballpark to the country’s magistrate’s or high court. It carries more gravitas, the arguments are more astute and the judges are more combative.

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A bench of five judges heard the case, comprised of two women and three men, one mixed-raced, one black and one white. They were impeccably prepared and incredibly well informed. The cream of the crop.

To watch two veteran criminal advocates like Gerrie Nel and Barry Roux, Pistorius’ defence lawyer, reeling from the debate was a sight to behold.

Many in the legal fraternity also believe that yesterday’s arguments helped provide clarity on long-standing legal questions, including an old case which has assumed an almost mythic status in South African law.

Prosecutor Gerrie Nel (left) and defence lawyer Barry Roux chat at the end of an appeal against Oscar Pistorius’ conviction last year.

In 1980, a man by the name of Isak Hofmeyer Seekoei attacked a woman on her farm in Bultfontein. He tied her to a pole using barbed wire and made off with her money and other valuables.

The state wanted to convict him of robbery, but Seekoei was brought up on the “lesser charge” of theft.

The state took the case to the supreme court, and in response the appeal court made a landmark ruling that would stand for the next 30 years: they declared that the state could only appeal against a high court judgment if the accused was acquitted, not if there was a conviction on a lesser charge.

Therefore according to the Seekoei precedent, Masipa’s judgment couldn’t be overturned because Pistorius had been convicted on the lesser competent charge of culpable homicide, meaning the state could only appeal if he was acquitted.

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But Nel made short work of killing the Seekoei precedent. Even Roux seemed to agree with him, and the judges suggested it was time it was superseded.

Dolus eventualis

We don’t know when it will happen, but once the court returns a decision we are also likely to get clarity on the long-debated legal principle of “dolus eventualis”.

Many legal experts have suggested that Masipa conflated this principlewith that of “putative private defence” (self defence): that Pistorius believed he was in danger, and had no intention to kill.

The matter will likely be sent back to the high court for the sentence to be reconsidered, which could do a great deal to restore the public’s faith in the criminal justice system – to a degree eroded by Masipa’s original ruling.

The court of public opinion has roundly convicted Pistorius of murder and many felt let down by a system when his “culpable homicide” conviction was announced.

Tuesday was about more than just Pistorius, it was about fundamental matters of the law in South Africa.

One of the core foundations of South Africa’s constitutional democracy is that the law must be seen to be done, and there was not doubt that happened yesterday.

A version of this article first appeared on Daily Maverick

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