South African Paralympic athlete Oscar Pistorius listens to the verdict in his murder trial in Pretoria, South Africa, 12 September 2014.
*Watch Judge Masipha hand down the sentence in the Oscar Pistorius trial on enca.com/oscartrial
PRETORIA – Judge Thokozile Masipa’s poker face has got lawyers and legal experts across the country confounded over her possible final verdict in the sentencing of Oscar Pistorius.
After 47 trial days, the athlete will learn whether he will be spending time in jail or be sentenced to house arrest at his Uncle’s Waterkloof home.
On Friday Judge Masipa heard impassioned arguments from Barry Roux and Gerrie Nel, both pushing for vastly different types of punishment for Pistorius after he was found guilty of culpable homicide for the negligent death of his girlfriend Reeva Steenkamp.
The state has asked for a minimum of 10 years in prison, while the defence wants the court to consider correctional supervision for Pistorius.
Legal experts say if Roux gets his way, there are two ways in which Judge Masipa could be sentenced. Criminal lawyer Riaan Louw says the Criminal Procedure Act makes allowance for two types of sentences based on house arrest.
“On the one hand, it looks like she’s a little bit sympathetic towards Oscar Pistorius and that she might be thinking about giving him correctional supervision. But there is a difference between the two types of correctional supervision,” Louw said.
The two differing correctional supervision guidelines are contained in sections 276 (1) (i) and (h) of the Criminal Procedure Act.
“The three years one is pure correctional supervision, nothing else. The five year one, (276 (1) (i) of the Criminal Procedure Act) is where the judge will send him to prison for a period of five years. But the head of the prison has the discretion to release him at any time.
“Normally, he has to sit one sixth of his sentence, which means that he will be in jail for approximately 10 months and thereafter they will consider releasing him on correctional supervision,” Louw said.
Though initially reluctant, Louw made a tentative prediction that Masipa could choose this form or punishment. He did not believe a 10-year jail sentence is on the cards.
“The moment she found him guilty of culpable homicide, it changed the whole direction of the case,” he said. Louw added that Pistorius’s disability could prove to be a deterrent to direct imprisonment, despite the poor testimony of defence witness Annette Vergeer, who testified about the conditions in South African jails.
Meanwhile Cape Town criminal attorney William Booth shares Louw’s apprehension about making any predictions.
“I think the state has made quite a persuasive argument for at least some period of direct imprisonment. But on the other hand Barry Roux has put up quite a good argument based on (Pistorius’s) personal circumstances,” Booth said.
The crux of the defence case was that Pistorius still had an opportunity to contribute to society and had lost everything as a result of shooting Sreenkamp - including endorsement deals worth millions.
His charitable work was also a major factor in the defence’s case in favour of a minimal sentence, along with an argument that SA prisons could not accommodate Pistorius due to his disability.
Booth said Judge Masipa would need to “send a strong message to people who act grossly negligently”.
“Does the court give him house arrest of three years? If one could argue for a longer period it might me more appropriate,” Booth said.
He added that the general public view was that there was a need for a “significant deterrent”.
Booth also said that if Judge Masipa decided to keep Pistorius out of prison because of allegations relating to poor prison conditions, it could set a precedent for other cases.
Pretoria University Professor Wium de Villiers would not speculate on the outcome of the sentence, but spoke about what was likely to happen once the sentence was concluded.
This would be the moment when either side would make it known whether they plan to appeal either the verdict or sentence. De Villiers was of the view that Pistorius’s legal team would not appeal, but that the state could.
“The NPA (National Prosecuting Authority) would be within its rights (to appeal),” he said.
“After the sentence is handed down they could argue for leave to appeal. There could be a postponement if they need time to prepare and then an application for leave to appeal,” he said.
De Villiers believed the state could argue, on an issue of law, that Judge Masipa should have convicted Pistorius for murder.
However, he said this would partly depend on the outcome of Judge Masipa’s sentence decision on Tuesday.
Sentencing will commence at 09:30am.