MURDER accused Oscar Pistorius will spend another night in police cells after a day of legal skirmishes between his defence and the State over whether he murdered his girlfriend Reeva Steenkamp.
Asked how he felt after proceedings on Thursday, prosecutor Gerrie Nel replied: "Satisfied." Mr Pistorius’s counsel, Barry Roux, said he felt "okay".
Mr Pistorius’s application for bail enters its fourth day in the Pretoria Magistrate’s Court on Friday.
He is charged with murdering Steenkamp, who died in a shooting in his Pretoria home last week. He has denied deliberately shooting her and has said he thought there was a burglar when he fired shots at the bathroom door, killing her.
Adv Nel started the day with the news that the investigating officer, Hilton Botha, himself faced seven charges of attempted murder.
Later, Mr Botha was withdrawn as the lead investigator in the case.
Announcing the removal of Mr Botha, police commissioner Riyah Phiyega said: "We do not lynch people ... Botha is still a member of SAPS, he is still working. He is not suspended."
The commissioner said Lt-Gen Vinesh Moonoo would now lead the investigation.
Mr Botha, who was the investigating officer in the case, testified against Mr Pistorius in his application for bail in the Pretoria Magistrate’s Court this week.
It was alleged that Mr Botha and two other officers fired at a minibus taxi carrying seven passengers. The trio were said to be drunk at the time in 2009.
In court, Adv Nel listened as Adv Roux laid into Mr Botha’s "poor" police work, and said the state was falling "far short" of proving murder.
Adv Roux told the court that the prosecution chose to ignore the accused’s spontaneous disclosure of the burglar issue, and that there was no evidence of planned murder.
Adv Roux said every allegation in the preamble of the charge sheet was disproved by the prosecution’s own evidence.
"We have demonstrated that every allegation in the charge sheet does not support the state’s claim that this was a planned murder," he said.
The defence once again tore into the investigating officer’s evidence, saying he was extremely selective and seemed determined to bolster the state’s case.
"The investigating officer couldn’t deny that Reeva (Steenkamp’s) bladder was empty at 3am in the morning. This suggests she went to the toilet."
Adv Roux argued that if Mr Pistorius planned to kill Steenkamp, he could have done it in the bedroom. "The fact that Pistorius and Reeva spent the night together is consistent with a loving relationship, and is inconsistent with murder."
The lead defence lawyer on Wednesday grilled the investigating officer for the greater part of the afternoon, during which he exposed the mishandling of evidence.
Submitting his arguments before lunch, Adv Roux said the preamble to the charge sheet patently lacked substance with regard to planned or premeditated murder.
"In the charge sheet it simply states murder, not premeditated murder," he said.
The fact that Mr Pistorius lived in a security complex did not make this aspect of the case "neutral".
"Unfortunately, it is not South Africa’s best-kept secret: crime is not limited to unsecured areas," Adv Roux said.
Not a flight risk
The presiding magistrate, Desmond Nair, wanted to know why Mr Pistorius’s affidavit made no mention of Steenkamp’s responses when he called out to her, before firing shots at what he thought was an intruder in the bathroom.
Adv Roux said it was "unlikely" she would have responded because she was scared.
With regard to Mr Pistorius standing his trial if granted bail, he submitted that it was unlikely that his client, who was "an icon", would flee.
"What more must he do? Is there a rule that he must be cross-examined?" asked Adv Roux.
He also insisted that Mr Pistorius did not own a house in Italy, even though one was referred to in a feature on him in Sarie magazine.
Adv Roux said there would be no outrage — once his defence was heard — if Mr Pistorius was released.
However, Adv Nel rejected Adv Roux’s argument, and said that if the state accepted Mr Pistorius’s version of events, all that was left was the "planned shooting of an intruder".
He said Mr Pistorius seemed to be under the impression he might not be tried for the shooting. This was reflected in his use of the words "should there be a trial" in his affidavit.
Adv Nel said Mr Pistorius had not offered to give up his passport, but had merely said he would if it was a condition of bail. "We say there is nothing exceptional in this person’s application. He’s a man of means."
Mr Pistorius’s "total lack of willingness to take responsibility for his deeds increases his flight risk", said Adv Nel.
No court would ever accept that Mr Pistorius acted in self-defence, he said.
Adv Nel asked why Mr Pistorius had not seen that Steenkamp was not in bed when he reached for his firearm on a nightstand.
"There’s only two people in the house and you want to protect her, but you don’t even look at her?
"I’m just saying that his version is so improbable".
Mr Pistorius had said there had been threats to his life and to his security at home, but he had never opened a case with the police.
"He was keen to arm himself and get to the intruder; his action is indicative of a man ready to arm himself, and ready to kill," said Adv Nel.
It was "improbable" that Mr Pistorius had felt vulnerable, but had still headed for the bathroom door, he said.
"It is our respectful submission that he fired four shots, not one shot. The only reason you fire four shots is to kill.
"At the least there will be culpable homicide," said Adv Nel.
The application resumes at 10am on Friday when the prosecution will conclude its argument before Mr Nair makes a decision.
With Sapa and Samuel Mungadze