Oscar Pistorius has recently been released on parole. It may be helpful to be reminded of how this can be. Pistorius was convicted of murder — the murder of whoever was in the toilet of his on-suite bathroom. He was given the minimum sentence applicable: 15 years, less time served, and he recently qualified for parole.
The case of Oscar Pistorius (S v Pistorius 2014 JDR 2127 (GP); Director of Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 317 (SCA)) is of little jurisprudential value. Nevertheless, it captured the imagination of the public, and some who have tried to make something significant of the case. It seems therefore to be worth highlighting the critical findings of the Supreme Court of Appeal (SCA) to correct some misunderstandings which have arisen out of the mythical status which the case took on.
It is of critical importance to note that the accused’s defence was critically, contradictory, on two mutually exclusive scenarios: one required that he was thinking, the other that he was not. Both were rejected, and the SCA noted, significantly in respect of both, that the accused had failed to explain himself — that he was lying — on both accounts: that he was thinking and that he was not thinking.
The argument that he was not thinking, and acted as an automaton (a valid and complete defence), appears in the SCA decision, as follows (at [48]):
‘The argument appears to have been that in the circumstances that prevailed, the accused may well have fired without thinking of the consequences of his actions.’
The court goes on to immediately exclude the claim based on the accused’s own version (at [50]-[51]). Something critical to the SCA judgement which is not sufficiently appreciated is that the court observed (at [49]): ‘… he fired four shots through the door. And he never offered an acceptable explanation for having done so.’ Quite simply, the accused did not coherently raise a defence to the effect that his mind was not capable of rational thought at the critical time.
As to the suggestion that he was thinking, but had, been mistaken, or confused, and so, not thinking properly, his claim — technically known as the defence of putative private defence (another valid and complete defence) — was that he had fired in the mistaken belief that he was entitled to use lethal force. The SCA noted that the claim relies on the ability of an accused to think rationally, but that, if that is the case, again, both his own version (at [52]-[54]) and his failure to explain himself properly (or at all) precluded a successful claim to this defence. Again, the court’s sentiments on the accused’s veracity and honesty are worth noting (at [53] emphasis added):
‘The immediate difficulty that I have with the accused’s reliance upon putative private defence is that when he testified, he stated that he had not intended to shoot the person whom he felt was an intruder. This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon. …
This constituted prima facie proof that the accused did not entertain an honest and genuine belief that he was acting lawfully, which was in no way disturbed by his vacillating and untruthful evidence in regard to his state of mind when he fired his weapon.’
In the circumstances Pistorius contradicted himself, claiming, at one point that he was thinking, at another, that he was not — and in doing so, he made it clear that he was lying on both accounts. That left only one possible conclusion: that he intended to kill whoever was in the toilet well knowing that he was not entitled to. This, in law, is murder.