Judge Thokozile Masipa delivers her judgment in the trial of Olympic and Paralympic track star Oscar Pistorius at the North Gauteng High Court in Pretoria on Thursday.   Picture: REUTERS
Judge Thokozile Masipa. Picture: REUTERS

JUDGE Thokozile Masipa’s decision to acquit Oscar Pistorius of murder and to convict him of culpable homicide has polarised society and even the legal profession. Her judgment, however, is justifiable based on the facts and the law.

Clearly there never was enough evidence to support a conclusion that the killing of Reeva Steenkamp was planned or premeditated. On the evidence, the judge rightly acquitted Pistorius on the murder charge.

Despite using a number of defences and being unreliable under cross-examination, Pistorius did raise a legitimate defence from the outset: that he thought he was defending himself and Steenkamp against a supposed intruder. The judge correctly found that this version of his state of mind might reasonably or possibly be true.

The accused does not have to prove a defence. It is sufficient if evidence of a defence might reasonably or possibly be true and serves to create reasonable doubt. The prosecution bears the burden of proving the unlawfulness of the accused’s conduct and his guilt beyond reasonable doubt. According to current criminal law, Pistorius would lack knowledge or foresight of the unlawfulness of his conduct if he genuinely thought (albeit mistakenly) that he and Steenkamp faced an imminent threat from an intruder that night and that he (Pistorius) was therefore acting in self defence. This predicament is called putative (or supposed) self-defence — a situation different from actual self-defence.

There clearly was no actual self-defence in the Pistorius case as there was no intruder. His conduct was therefore unlawful. However, a further inquiry has to be made in criminal law: did the accused genuinely (if subjectively) believe that a self-defence situation existed? This is an inquiry into intention, including knowledge or foresight of unlawfulness.

Since 1977, knowledge or foresight of unlawfulness has been regarded as part of the intention inquiry in all its forms, including dolus eventualis (the awareness of a likely outcome of an action). In the Pistorius case, the relevant inquiry into dolus eventualis would be: did the accused foresee the possibility of bringing about the unlawful death of Steenkamp and nevertheless go ahead?

It is unfortunate that Masipa did not spell out her findings on the absence of knowledge or foresight of the unlawfulness of the killing more fully. Her reasoning appears to be based not only on credible evidence of putative self-defence, but also on the view that Pistorius did not foresee the possibility of killing a person behind the door, let alone Steenkamp. Although there is some support in Pistorius’s evidence for this conclusion, the judge’s line of reasoning on this matter is somewhat confusing and apparently inconsistent with her evaluation of putative self-defence.

The judgment may be based on Masipa’s apparent view that Pistorius genuinely did not foresee death, but only foresaw bodily harm, to the person behind the door. In other words, Pistorius may have been intending to frighten or incapacitate any intruder, not kill, and that is why he thought he was acting lawfully. The judge’s line of reasoning on this matter could have been clearer.

A more convincing conclusion would have been that the only reasonable inference that could be drawn from the evidence was that Pistorius did foresee the possibility of killing a person behind the door (despite his claim that he did not), but that he nevertheless mistakenly thought he was entitled in law to do so on the basis of his genuine belief that the person behind the door was not Steenkamp, but a threatening intruder.

The State’s argument was that Pistorius should be liable for murder if he foresaw the death of anyone behind the door and simply made an irrelevant mistake regarding the identity of his victim. This is what is called the error in objecto rule. In terms of this rule, if A intends to kill B and shoots and kills C, whom he mistakenly believes to be B, then A’s mistake as to the precise identity of his victim is irrelevant and he could be liable for the murder of C.

However, if, as Masipa rightly concluded, Pistorius’s evidence that he genuinely believed that he fired the shots at an intruder, not Steenkamp, was reasonably or possibly true, then Pistorius had already notionally ruled Steenkamp out of the category of possible victims when he fired the shots.

Of course, if the ultimate victim behind the toilet door had turned out to be a nosey neighbour, investigative journalist or a hardened house-breaker this would clearly have been an irrelevant issue of identity. But, the error in objecto rule cannot apply when the actual victim is someone who has already been notionally ruled out by the accused as a potential victim. Further, the error in objecto rule must be qualified by the later emphasis in our law on knowledge of unlawfulness as part of intention. The reason why the person was behind the door can hardly be excluded as irrelevant to the accused’s mental state.

If this examination of Pistorius’s mental state at the time he fired the four shots seems overly complex to a non-lawyer, it is inappropriate to blame the judge who applied the law correctly to the facts and reached a justifiable and balanced result.

Masipa’s verdict that Pistorius was guilty of culpable homicide was also correct based on the facts and the law. Masipa rightly held that a reasonable person (with physical disabilities) would have foreseen the death of Steenkamp behind the toilet door (even though Pistorius himself did not foresee this possibility) and a reasonable person in Pistorius’s position would have taken steps to guard against this possibility (by calling security or communicating with Steenkamp, for instance). Pistorius did not take such steps and so he negligently killed Steenkamp and was rightly convicted of culpable homicide. It is up to the judge at the punishment stage of the trial (next month) to reflect the true extent of culpability.

Burchell is a professor of criminal law at the University of Cape Town.