Oscar Pistorius: conviction of culpable homicide changed to murder on appeal

By Prof Steve Cornelius

The Supreme Court of Appeal (SCA) in South Africa, in an appeal lodged by the Prosecution, has overruled the finding of the trial court in the Oscar Pistorius case.

The SCA found that Judge Masipa in the Trial Court had ignored vital evidence from a ballistics expert and that she had incorrectly applied the principles of intent in coming to the conclusion that Pistorius was guilty of culpable homicide (which is based on the negligent killing of a person rather than intent). In other words, she had made two errors in law!

Under South African law, intent can take three forms:

dolus directus, or direct intent, which would apply in the case of premeditated murder;

dolus indirectus or indirect intent, where the aim was not necessarily to harm someone, but an inevitable consequence of other unlawful conduct is that someone will be injured or killed, as when a disgruntled airline employee causes an airliner to crash with the intent to harm the reputation of the airline, but inevitably those on board the airplane will be killed in the crash; and

dolus eventualis or intent on the eventualities, where a person foresees that his action might harm someone, but nonetheless proceeds to act with reckless disregard.

It is also important that the test here is whether, on the facts, a court can conclude beyond reasonable doubt that the accused actually foresaw the potential for harm. The test here is not, as some news reports suggest, that the accused should have foreseen the harm. This latter formulation points to negligence rather than intent.

The SCA found that, in firing shots through the locked bathroom door, Pistorius, who was well trained in the use of firearms, foresaw that he might hit someone behind the door. In the words of the court, he gambled with the life of the person behind the door by firing four shots with a heavy calibre firearm into a confined space.

As a result, the court found that Pistorius acted with dolus eventualis, with the result that he should have been convicted of murder and not culpable homicide.

The case has now been referred back to the trial court to reconsider the sentence imposed on Pistorius. The trial court will most likely impose a harsher sentence, the minimum sentence, in general, being 15 years; but sentences in cases of dolus eventualis are generally more lenient than in cases of dolus directus or dolus indirectus as the latter implies higher levels of culpability.

There is now also a possibility that Pistorius could take the SCA judgment on appeal to the Constitutional Court, which is the highest court in South Africa.

And there is every possibility that the Director of Public Prosecutions or Pistorius might take the reimposed sentence, once it is handed down by the trial court, on appeal to the SCA and perhaps even the Constitutional Court.

As a result, the matter seems to be far from settled at this time!


Prof Steve Cornelius is a South African Advocate and Head of the Private Law Department of the University of Pretoria, South Africa