Oscar Pistorius: The two heavyweights of SA Criminal Law weigh in (Part 2)

Photo_Web_Oscar_Pistorius_150616

South African Paralympian Oscar Pistorius leaves the Pretoria High Court on the second day of his pre-sentencing hearing.

Maintaining perspective on the basis of the murder conviction and sentence

Oscar Pistorius was sentenced last week (on 6 July 2016) by the same Court that found him guilty of culpable homicide rather than murder. Before proceeding with the analysis of Oscar’s murder conviction with close reference to the opinions and explanations of the two undisputed heavyweight champions of South African Criminal Law (Professors Burchell and Snyman), it is appropriate to comment briefly on sentencing.

As discussed in Part 1 of the present article, according to both Professors Burchell and Snyman (independently), the basic accepted facts in the Pistorius case lead to a conclusion of culpable homicide rather than murder. The same facts, however, could instead lead one to conclude that it is a case of murder based on dolus eventualis (as the Supreme Court of Appeal indeed did).

There is, as elaborated on in preceding articles, a ‘fine line’ between the two possible outcomes in this case, and the answer depends centrally on what can be inferred beyond reasonable doubt regarding the accused’s state of mind at the time. It is accordingly unsurprising that the sentence imposed by the High Court in this particular case of murder dolus eventualis is one that could arguably have been imposed for culpable homicide.

It is notable that if the High Court had articulated its findings in respect of dolus eventualis in a legally accurate manner, the conviction of culpable homicide would not have been open to challenge. However, the State might have opted to pursue an appeal in respect of the sentence imposed at that time. It might also elect to do so currently, on the basis that the six-year (effectively seven years minus one) sentence is manifestly inappropriate.

As the Supreme Court of Appeal (SCA) clearly explained in its judgment in 2015, the most fundamental legal error in the High Court’s articulation of dolus eventualis (in 2014) was that Oscar’s foresight was treated as if it were required to relate to Reeva (rather than ‘the person behind the door’). The High Court instead needed to move its attention from intent in respect of Reeva particularly (which would be the dolus determinatus form of intent), and was required to apply dolus eventualis in respect of the supposed unknown intruder/s (which is the dolus indeterminatus form of intent).

Basically, dolus determinatus (which can relate to any type of intent: directus, indirectus or eventualis) is intent in respect of a person whose identity has been determined (hence determinatus) by the accused, whereas dolus indeterminatus (which can also relate to any type of intent: directus, indirectus or eventualis) is intent in respect of a person whose identity has not been determined by the accused. Snyman (2014) explains as follows:

Dolus indeterminatus is not a form of intention apart from dolus directus, dolus indirectus or dolus eventualis. It means merely “the intention directed at any indeterminate victim”. A person can therefore act with dolus indeterminatus and dolus eventualis simultaneously.”

Last week, in reaching a final decision on Oscar’s sentence based on his being found guilty of murder dolus eventualis indeterminatus, the High Court had to be especially mindful of the fact that it was not proven that he knew that it was Reeva behind the door. If it had been proven that he knew (or realised that there is a possibility) that Reeva was the person behind the door, it would have been an instance of determinatus intent and – in the particular circumstances of the case – would have signified a much greater degree of culpability.

This is situation somewhat ironic, since it had been the Court’s inappropriate application of dolus eventualis in relation to Reeva specifically that constituted its most significant legal error (as corrected by the SCA) and facilitated an appeal in respect of the culpable homicide conviction. In contrast, the fact that he was found not to have known or foreseen that it might be Reeva behind the door is centrally relevant in determining an appropriate sentence for murder in this case.

Indeed, there is a substantial difference between culpability based on knowingly killing an innocent and defenceless woman (or foreseeing such result) and that based on knowingly exceeding the bounds of acceptable private defence (foreseeing that one might kill what one perceives to be a dangerous intruder) in one’s own home. A Court needs to maintain very clear perspective on the particulars of the nature and extent of the culpability that has been found to have been proven beyond reasonable doubt in a specific case.

Oscar murdered Reeva

As mentioned above, on the one hand, an accused’s mistake regarding the identity of the person behind the door does not in itself change that he intends unlawfully to kill another human being (as required for a conviction of murder). On the other hand, his precise intentions related to killing a particular person can dramatically change his or her level of culpability.

There are some interesting paradoxical elements involved in the ‘mistaken identity’ aspect of the Pistorius case:

Oscar is guilty of murder. The murder victim is Reeva. However, to assert that the Courts have found that Oscar murdered Reeva would be misleading. Rather, Oscar was found to have intended to kill a supposed intruder. In other words, according to the SCA, in Oscar’s mind he reconciled himself to murdering an intruder.

Since that supposed intruder is ‘a person’, Oscar can technically be found guilty of the crime of murder – Oscar intended to kill the person/s behind the door and he indeed killed a person behind the door. One could then, however, proceed to reason further as follows:

Reeva was the person behind the door, and therefore Oscar murdered Reeva – Oscar did not intend to kill Reeva, but he murdered the person behind the door, i.e. Reeva. One might thus paradoxically conclude that Oscar did not intend to kill Reeva, but he indeed murdered Reeva.

The above-noted paradoxical situation appears to have caused a considerable conundrum for the Defence, leading to the problematic contention that murder based on dolus eventualis cannot be established in a situation where an accused has subjectively excluded the death of the actual victim as a possible consequence of his or her actions. This matter requires a substantial amount of discussion, and will be addressed in a separate formal legal article (which also analyses some key issues related to error in persona, error in objecto and aberratio ictus).

Suffice it to highlight here that, from a technical legal point of view, Oscar Pistorius has been found guilty of murder (full stop). It is not “the murder of Reeva” or “the attempted murder of a supposed intruder that turned out to be the actual murder of Reeva” or “the murder of the supposed intruder”. It is simply “murder”: the unlawful and intentional killing of another human being.

Although misleading, natural statements such as “Oscar Pistorius was found guilty of murdering his girlfriend Reeva Steenkamp” or “Pistorius was sentenced 6 years for the murder of his girlfriend” will continue to be prevalent in the context of this case. The High Court itself indeed concluded that it is imposing the latest six-year sentence on the accused “for the murder dolus eventualis of the deceased, that is Reeva Steenkamp”.

Such a statement is natural because, if he did not murder Reeva, whom did he murder then? If you are guilty of murder, you must have murdered someone? He did not murder an intruder, since there was none. However, it is an odd conclusion to reach that he murdered Reeva while he did not at all intend (neither directus nor eventualis) to kill her. As mentioned, this anomalous situation will be further discussed in a separate article.

Must dolus eventualis be assessed subjectively (and prognostically)?

The authoritative explanations of Professors Snyman and Burchell (as conveyed in Part 1 of this article) should leave no doubt that knowledge of unlawfulness is an element of dolus eventualis. The next pivotal issue that must be addressed is the fact that all elements of intent (including knowledge of unlawfulness) must be assessed subjectively and prognostically, as discussed in my preceding five-part article (January 2016).

Regarding the use of the specific term ‘prognostic’, this is not generally used in Criminal Law, and I have not seen Professors Snyman and Burchell use this term. However, the term represents a firm principle of Criminal Law, which is that an accused’s intent (or negligence) must be assessed with reference to the position in which he or she actually found him/herself. This term has featured in the context of the Law of Delict, where the principle is also applied in respect of a defendant’s intent or negligence.

The fact that the accused’s state of mind must be assessed with reference to the position in which he or she actually found him/herself is in reality already encompassed by the requirement that the test for intent must be ‘subjective’ (i.e. assessed with reference to the state of mind of the accused him/herself). One indeed cannot assess an accused’s intent with reference to his or her own state of mind, but not in terms of the position that he actually found him/herself. Nevertheless, it is submitted that it is desirable to highlight the ‘prognostic’ element separately for clarity of perspective.

Perspective needs to be maintained that both negligence and intent must be assessed prognostically ‘in the heat of the moment’ (where applicable), and not diagnostically ‘in the armchair’ with the benefit of hindsight. The element of (objective) unlawfulness in Criminal Law (and the corresponding concept of ‘wrongfulness’ in the Law of Delict) is assessed diagnostically. In their leading textbook, “Law of Delict”, Professors J Neethling and JM Potgieter (2015) explain as follows:

“Because wrongfulness concerns the legal reprehensibility of a person’s conduct, such [wrongfulness] is determined diagnostically (ex post facto, by looking back) in light of (or with knowledge of or by taking into account) all the relevant facts and circumstances that are actually present and all the consequences that actually ensued. Because negligence concerns the legal blameworthiness of the wrongdoer, it is determined prognostically (ex ante, by looking forward) with reference to the position in which the defendant actually found himself.”

Again, the fact that the enquiry into intent is purely ‘subjective’ (whereas negligence is relatively ‘objective’, as explained in my preceding January article) the ‘prognostic’ requirement is in effect included in such subjectivity. That fact should be borne in mind when reading the explanations of Professors Burchell and Snyman below.

The pure subjectivity of intent in the context of actual/putative private defence

In his leading textbook, Professor Snyman (2014) indeed makes it unmistakably clear: “The test in respect of intention is purely subjective. The court must determine what the state of mind of that particular person – the accused (X) – was when he committed the act….The courts emphasise that the test to determine intention is subjective: the court must try to imagine itself in X’s position when he committed the act…” (Emphasis added.)

In his leading textbook, Professor Burchell (2013) similarly affirms: “Since the early 1950s our courts have moved away from the objective test in favour of a subjective test of intention, which was ultimately adopted by the Appellate Division in Nsele. Since Nsele, the subjective test for criminal intention has been consistently applied by the South African courts. The subjective test takes into account only the state of mind of the accused” (Emphasis added.)

It is important at this point to highlight once again that the pure subjectivity of intent in the form of dolus eventualis relates not only to the factual cognitive element (i.e. foresight of the result), but also the legal cognitive element (knowledge/awareness of unlawfulness) thereof. Particularly in the context of exceeding the bounds of private defence, Snyman explains as follows:

“It must be emphasised that the mere fact that X knew or foresaw that her act might result in Y’s death, does not mean that she intended to kill (as this requirement is understood in the law) and that she is therefore guilty of murder… [A]wareness of unlawfulness is an indispensable requirement of dolus (intention in the technical, legal sense of the word).”

The learned author continues: “In ordinary cases where the bounds of private defence are exceeded there can usually be no doubt that intention in the sense of a direction of the will (i.e., ‘colourless intention’, or intention without an appreciation of the unlawful quality of the act) is present…What [the accused] usually does not realise[, however,] is that her conduct exceeds the bounds of private defence and that she is acting unlawfully; she then has only a ‘colourless’ intention to kill.” (Emphasis added.)

Snyman makes it very clear that, for a murder conviction based on intent in the form of dolus eventualis, the elements of subjective foresight or knowledge/awareness of unlawfulness and subjective foresight of the result and reconciliation thereto are all required:

“If X (the party who was originally attacked) is aware of the fact that her conduct is unlawful (because it exceeds the bounds of private defence) and that it will result in Ys death, or if she subjectively foresees this possibility [i.e. unlawfully killing Y] and reconciles herself to it, she acts with dolus ([‘colourless’] intention accompanied by awareness of unlawfulness) and is guilty of murder.” (Emphasis added.)

In the context of putative private defence specifically, Snyman provides an example that is similar to some aspects of the accepted facts in the Pistorius case:

“Y leaves his home in the evening to attend a function. When he returns home late at night, he discovers that he has lost his front-door key. He decides to climb into the house through an open window. X, his wife, is woken by a sound at the window. In the darkness she sees a figure climbing through the window. She thinks it is a burglar, the person who has recently raped a number of women in the neighbourhood. She shoots and kills the person, only to discover that it is her own husband whom she has killed.”

The learned author explains the legal position as follows: “[X] has acted unlawfully, because she cannot rely on [actual] private defence: the test in respect of private defence is, in principle, objective and in a case such as this her state of mind is not taken into account in order to determine whether she has acted in private defence. Although she [‘colourlessly’] intended to cause the death of another human being, she will not be guilty of murder, for her intention did not extend to include the unlawfulness of her act…” 

Again, Snyman makes it clear that the element of subjective awareness/knowledge of unlawfulness is a central issue in establishing intent (or lack thereof): “…her mistaken belief in the existence of justificatory circumstances…could mean that she lacked awareness of unlawfulness and therefore dolus (intention).” (Emphasis added.)

Professor Burchell explains as follows: “[The courts have taken a] subjective approach to the defence of putative private defence, [which is] a defence excluding the knowledge of unlawfulness aspect of intention… The distinction between ‘actual’ and ‘putative’ private defence has both the significant theoretical and practical advantage of:

(i)            drawing a sound theoretical distinction between objective unlawfulness and subjective intention; and

(ii)          allowing for a principled verdict of culpable homicide (rather than an automatic reduction from murder to culpable homicide in terms of a partial excuse rule) where the subjectively mistaken belief of the accused was objectively unreasonable.” (Emphasis added.)

Burchell further illuminates the legal principles involved: “In the context of homicide, an acquittal of murder as a result of genuine ignorance of the existence of an element of the unlawfulness of conduct [thus precluding the required intent] undoubtedly links guilt and moral responsibility, and can also be justified if it is remembered that a conviction of culpable homicide is there to ensure that the person whose ignorance is unreasonable and who negligently kills another does not escape liability…” (Emphasis added.)

The process of establishing intent in the context of putative private defence

Bearing in mind that the pure subjectivity of intent relates just as much to knowledge of unlawfulness as it does to foresight of physical consequences (for dolus eventualis), the following vitally important principles elucidated by Snyman are particularly germane to the analysis of the approach adopted by the the SCA in the Pistorius case: 

“If a court is called upon to determine by indirect proof, that is, by inferential reasoning, whether X had intention, it must guard against subtly applying an objective instead of a subjective test to determine intention. It is dangerous for a court to argue as follows: ‘Any normal person who commits the act which X committed, would know that it would result in the death of the victim; therefore X acted intentionally.’” (Emphasis added.)

As is evident, Snyman happens to use the example of foresight of the physical result (i.e. death) to illustrate the imperative of applying a subjective test to determining intent. Such foresight is indeed the aspect that is generally central in most cases of dolus eventualis (since knowledge of unlawfulness is implied, as discussed in my preceding articles). As mentioned, however, the principle applies equally to knowledge of unlawfulness as an essential element of intent. In other words, the situation could more representatively be stated as follows:

“It is dangerous for a court to argue that, for instance: ‘any normal person who commits the act which X committed, would know that it would result in the unlawful death of the victim; therefore X acted intentionally.”

The SCA categorically applied the correct subjective test to the foresight of death in the Pistorius case, but it did not apply the same approach and standard to the crucial element of knowledge of unlawfulness. As will be demonstrated further below, the SCA accordingly, with respect, to some extent ultimately failed to “guard against subtly applying an objective instead of a subjective test to determine intention” (as Snyman warns). The objectivity applied is indeed subtle, which is precisely why Snyman chooses those words to describe the trap into which a Court could unwittingly fall. The learned author’s words of caution continue:

“Although the court (judge or magistrate) is free to apply general knowledge of human behaviour and of the motivation of such behaviour, it must guard against exclusively considering what a normal, ordinary or reasonable person would have thought or felt in given circumstances…” (Emphasis added.)

Snyman further explains: “[The court] must consider all the circumstances of the case…as well as all of Xs individual characteristics which the evidence may have brought to light and which may have a bearing on his state of mind, such as his age, degree of intoxication, his possible irascibility, possible lack of education or low degree of intelligence. The court must then to the best of its ability try and place itself in Xs position at the time of the commission of the act and then try and ascertain what his (Xs) state of mind was at that moment – that is, whether, for example, he appreciated or foresaw the possibility that his act could result in Y’s death.” (Emphasis added.)

These are fundamental principles of criminal intent in South African Law. The fact that a Court must to the best of its ability place itself in the accuseds position at the time of the commission of the act to ascertain what his or her state of mind was at that moment is crucial. Snyman is here in effect also articulating the imperatively prognostic nature of the enquiry (although he does not use that particular term, as discussed above) as encompassed by the fact that it must be purely subjective.

Again, it is also clear that he is providing foresight of death as an example of an aspect of intent that might inadvertently be judged objectively. In the Pistorius case, it was instead the accused’s knowledge of unlawfulness ‘in the heat of the moment’ that was, with respect, inappropriately objectively and diagnostically judged (to some extent). Professor Snyman further highlights the critical prognostic-subjective aspect of intent as follows:

“The effect of the application of the subjective test is that the court must guard against armchair reasoning: as far as possible it must avoid, in the calm atmosphere of the court, imputing to X a state of mind based on facts which came to light only after the act had already been committed, or based upon what the judge or magistrate himself or an ordinary person would have thought had he been in Xs shoes at the time of the act.” (Emphasis added.)

I will return to the last-featured italicised part of the above quote when discussing the SCA’s use of ‘a rational person’ in what effectively amounted to establishing knowledge of unlawfulness in the Pistorius case. In the context of judging the specific matter of exceeding the bounds of private defence, Snyman adds further words of caution:

“…the judicial officer should not judge the events like an armchair critic, but should to the best of her ability endeavour to place herself in the shoes of the attacked person at the critical moment, and keep in mind that such a person probably had only a few seconds in which to make a decision which was of vital importance to her… A person who suffers a sudden attack cannot always be expected to weigh up all the advantages and disadvantages of her defensive act, and to act calmly.”

Did the SCA evaluate the Pistorius case with the correct legal perspective?

At this point, it is time to conclude by answering two basic questions that relate to my first publication regarding the SCA judgment (7 January 2016):

1.     Did the SCA err by not assessing knowledge of unlawfulness as part of dolus eventualis, and does that really matter?

2.     Did the SCA err by not applying a purely subjective (and thus also prognostic) test to the establishment of knowledge of unlawfulness?

It must again be emphasised that the present analysis is offered with the utmost respect for the Supreme Court of Appeal. South Africa has an excellent judiciary, and the Courts have a vital role to play in protecting all South Africans and in safeguarding their future. The analysis in these articles is respectfully aimed at constructively highlighting errors for the purpose of ensuring that the related legal issues be resolved in due course.

In DPP v Pistorius the full legal picture was not placed before the SCA. Instead, the assessment of key aspects of the case was distorted by a lack of appropriate perspective on the elements (and related process of establishing them) of dolus eventualis. It is important for the underlying problems/errors to be closely analysed so that they can be solved/corrected for the future.

The SCA itself commented on the fact that its pointing out of errors in the High Court judgment should not be be seen “as an adverse comment upon [the trial Judge’s] competence and ability”. Indeed, judges and jurists have a duty to highlight problems and to suggest solutions for the sake of clarifying or developing the Law and/or ensuring that it is correctly applied in any particular case (and/or for the sake of future cases). It is a natural part of the broader legal process.

Does perspective regarding the elements really matter?

The answer to the first part of the first question above (i.e. did the SCA err by not assessing knowledge of unlawfulness as part of dolus eventualis?) should require no discussion at this stage. The SCA, with respect, clearly erred in that regard. Whether that technical error makes any practical difference, however, relates to the question of whether knowledge of unlawfulness was eventually – even if inappropriately divorced from the ‘complete’ enquiry into dolus eventualis – fully appropriately addressed.

As discussed in Part 2 of my January article, the technical error (related to the first question above) indeed had a concrete impact on how the case proceeded, and the lack of perspective ultimately contributed (at least partly, if not substantially) to the enquiry into knowledge of unlawfulness incorrectly incorporating certain objective and diagnostic elements.

A passing statement during the SCA hearing that one might highlight as an indication of some of the impact of the above-mentioned lack of perspective is when Justice Leach (addressing Barry Roux) said: 

“...The issue of whether there was this so-called ‘putative self-defence’ which has been bandied around is something else. We are talking about intent, not unlawfulness. Self-defence has to do with unlawfulness… Putative self-defence has to do with culpability. But we are talking about intent…what was foreseeable.” 

The above words to a small degree reveal how the whole of issue of putative private defence had been relegated to the periphery and not seen as a key aspect in the ‘full picture’ of the case (as discussed in Part 2 of my January article). It is, on the contrary, a crucial issue in terms of the facts as accepted that should have been addressed in the process of establishing intent.

Closer examination of the above quote further demonstrates how the ‘dots’ could have been connected so as to gain appropriate perspective. It is, with respect, indeed true that putative private defence has to do with culpability, but one needs to continue to ‘connect the dots’:

1.     What are the two major indicators of culpability in South African Criminal Law? That would be intent and negligence.

2.     In this instance, which one is specifically under evaluation? That would be intent.

3.     Therefore, putative self-defence indeed also has to do with intent.

Having connected those ‘dots’, it can readily be appreciated that the next statement in the quoted passage is out of place (…but we are talking about intent). Instead, it could have been: “Because we are here talking about intent, we need to consider the alleged putative private defence situation as part of that enquiry in order to assess whether knowledge of unlawfulness on the part of the accused has been established beyond reasonable doubt. If not, we would then turn to negligence to evaluate what the state of mind and conduct of a reasonable person would have been in the same situation.”

What is very important is that if the SCA had maintained the perspective that the assessment of putative private defence cannot be divorced from the assessment of intent, the Court would have been mindful of the fact that the test for knowledge of unlawfulness is just as imperatively subjective as the test in respect of foresight of death. In other words, the SCA would inevitably have applied all the well-established words of caution – some of which it indeed itself expressed in respect of the subjective foresight of death – to the finding of knowledge of unlawfulness.

Consider, for instance, some of the quoted passages featured in the SCA judgment in DPP v Pistorius itself in terms of ensuring that a subjective test be applied to establishing intent:

Quoting Holmes JA (Judge of Appeal) in S v Sigwahla: “[For the purpose of establishing intent, t]he distinction must be observed between what actually went on in the mind of the accused and what would have gone on in the mind of a [reasonable person] in the position of the accused. In other words, the distinction between subjective foresight and objective foreseeability must not become blurred.” (Introductory phrase and emphasis added.)

Quoting Smalberger JA in S v De Oliveira: “On appeal the unlawfulness of the appellant’s conduct was not in issue. Accordingly, the only issue was whether the State had proved beyond all reasonable doubt that the appellant subjectively had the necessary intent to commit the crimes of which he was convicted, in other words, that he did not entertain an honest belief that he was entitled to act in private defence…” (Emphasis added.)

Again, when ‘connecting the dots’ in the light of the quoted passages above, the following details are discernible:

1.     The ‘test’ for intent is subjective (i.e. it must be established with reference to what was actually in the mind of the accused at the time).

2.     Intent is not only about foreseeability of the physical result. This happened to be (for reasons already noted) the point specifically under discussion in Sigwahla when reaffirming the requisite subjectivity (hence the contrasting of ‘subjective foresight’ and ‘objective foreseeability’). Intent is also about the accused’s state of mind in respect of the unlawfulness of his or her conduct. This is in fact conveyed by the words quoted from S v De Oliveira: “…that the appellant subjectively had the necessary intent…in other words, that he did not entertain an honest belief that he was entitled to act in private defence.”

3.     It follows that both the factual cognitive element (foresight of the result) and legal cognitive element (knowledge of unlawfulness) of dolus eventualis must ultimately be assessed with as-close-as-possible reference to the accused’s actual state of mind, rather than only (or unduly chiefly) that of ‘a reasonable person’ or, as was inappropriately done in the Pistorius case, ‘a rational person’.

Under certain circumstances (such as in S v De Oliveira, where the accused did not testify and there were very few known subjective data available to ‘reconstruct’ the accused’s actual state of mind), a Court may use what would basically amount to ‘the average person’ as a tool in the process of determining what an accused’s actual state of mind must have been (beyond reasonable doubt) at the time. Ultimately, however, as much subjective information as possible must be duly incorporated into the process of establishing the accused’s state of mind beyond reasonable doubt. Consider once again Professor Snyman’s words of caution:

“[A] court must guard against exclusively considering what a ‘normal’, ‘ordinary’ or ‘reasonable’ person would have thought or felt in given circumstances…[I]t must consider…all of Xs individual characteristics which the evidence may have brought to light and which may have a bearing on his state of mind… [and] to the best of its ability try and place itself in Xs position at the time of the commission of the act and then try and ascertain what his (Xs) state of mind was at that moment …[I]t must avoid, in the calm atmosphere of the court, imputing to X a state of mind based on facts which came to light only after the act had already been committed, or based upon what…an ordinary person would have thought had he been in Xs shoes at the time of the act.” (Emphasis added.)

In the Pistorius judgment, the SCA correctly applied the appropriate subjective test to the establishment of the factual cognitive element (foresight of the result) of dolus eventualis, as follows (at [50] to [51]):

“A court, blessed with the wisdom of hindsight, should always be cautious of determining that because an accused ought to have foreseen a consequence, he or she must have done so. But in the present case that inference is irresistible…[inter alia] in the light of the nature of the firearm and the ammunition used and the extremely limited space into which the shots were fired… In these circumstances I have no doubt that in firing the fatal shots the accused must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die…” (Emphasis added.)

The Court duly considered all the circumstances (only a fraction of its discussion is reflected in the brief quote above) in drawing an inference as to the what the accused’s actual state of mind must have been (and therefore beyond reasonable doubt was) at the time regarding the factual cognitive element. However, when it came to the legal cognitive element (knowledge of unlawfulness), the SCA inappropriately adopted the following approach (at [53]):

“In these circumstances, although he may have been anxious, it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him). 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.” (Emphasis added.)

As is evident, the accused was not in fact here assessed with close reference to what his actual state of mind must have been at the time. Rather, his state of mind was assessed in terms of what “a rational person could have believed”. This paragraph is, with respect, markedly different from what it would have been if the required subjective (and prognostic) test were to have been applied. I will in a separate article (mentioned below) address the matter of how the paragraph might be modified to reflect the appropriate approach.

Lack of perspective caused the SCA not to apply the appropriate test

From the words of Justice Leach at the SCA hearing (quoted close to the start of the section immediately above) and the approach in the judgment itself, it is plain that the perspective that knowledge of unlawfulness must be addressed as part of finding intent is lacking. That evidently led to the issue being somewhat marginalised and eventually not approached in the appropriate manner.

This then brings us to the second question posed further above: “Did the SCA err by not applying a purely subjective (and thus also prognostic) test to the establishment of knowledge of unlawfulness?

As discussed in my January article, the SCA eventually engaged the issue of knowledge of unlawfulness briefly, but, with respect, did so unduly superficially, inappropriately objectively and diagnostically, and in a disjointed manner (erroneously divorced from dolus eventualis).

The SCA did not, as discussed, sufficiently closely enquire whether Oscar himself was genuinely mistaken as to the unlawfulness of his conduct. Rather, as is evident, it enquired whether it is conceivable that a rational person could have believed that he was entitled to fire in that situation. The Court also did not explicitly examine the specifics of the ‘pressure’ of the perceived situation, so as to draw a convincing distinction between the type of situation in De Oliveira and that in Pistorius.

As discussed in Part 4 of the above-mentioned article, the SCA misapplied, with respect, the precedent in De Oliveira by inappropriately directly copying the conclusion in De Oliveira and effectively letting it serve almost verbatim as its own conclusion in Pistorius. As reflected, the context in which ‘rational person’ is used by the SCA in Pistorius is clearly in the same manner as ‘a reasonable man’ was used in De Oliveira:

S v De Oliveira (at 18-20): “…it is inconceivable that a reasonable man could have believed that he was entitled to fire at or in the direction of the persons outside in defence of his life or property (and that without even a warning shot)…. In the circumstances there was prima facie proof that [Mr De Oliveira] could not have entertained an honest belief that he was entitled to act in private defence…[His] failure to testify [ultimately] resulted in [such] prima facie proof becoming conclusive proof of that fact.” (Emphasis added.)

DPP v Pistorius (at [53]): “… it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot ….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.” (Emphasis added.)

How could the SCA correctly have reached the same conclusion?

If one examines the brief section (paragraphs [52] to [53]) leading up to the conclusion that it is inconceivable that a rational person could have believed that he was entitled to fire and that this constituted prima facie proof that Oscar himself did not believe that he was acting lawfully, it is evident that the SCA reached that conclusion without due discussion of the various subjective elements (those that were accepted on the evidence) involved in the case.

On a finer point, as discussed in Part 4 of my January article, it is also important to bear in mind that the Defence does not have to convince the Court that an accused must have actively believed in the lawfulness of every step of his or her conduct in the whole situation. Rather, the State must convince the Court that the accused must have known that he might realistically (to his own mind) not be acting lawfully at the relevant time: it is not the absence of the conviction of acting lawfully that establishes intent, but rather the presence of operative knowledge of acting unlawfully that does.

In other words, the accused must in fact at the time operatively know that what he or she is doing might realistically not be lawful.

These matters have already been extensively discussed in Parts 4 and 5 of the above-mentioned article, and I accordingly refer the reader to those sections for further details regarding how and why the SCA, with respect, did not apply the required subjective (and prognostic) approach.  

The question then arises: If the SCA could have engaged in a legally sound process of reasoning in establishing knowledge of unlawfulness beyond reasonable doubt (in its assessment on the accepted facts), what are the basic elements that would feature therein?

This matter will be addressed in my next article, entitled “Oscar Pistorius: A Correct Verdict of Murder based on Dolus Eventualis”.