JOHANNESBURG - Oscar Pistorius has launched a fight back against the State’s bid to see him convicted of murder.
If they are successful in their leave to appeal application in the South Gauteng High Court, they hope to persuade the Supreme Court of Appeal that Pistorius’s culpable homicide conviction cannot be overturned.
But the former athlete’s lawyers believe the judge was wrong to grant that appeal – and they want to make that argument in the Appeal Court.
The law states that a judge’s factual findings in a case cannot be appealed. An appeal can only be granted on a question of law. So Judge Masipa’s finding that her culpable homicide conviction of Pistorius was based on her interpretation of the law is central to the state’s bid to overturn that ruling. And that is why Pistorius’s lawyers want the right to argue that Judge Masipa made her decision based on facts, not law. If they can do that, they can shut the appeal down right at the very beginning.
Judge Masipa accepted that Pistorius had fired the shots that killed Reeva Steenkamp out of genuine fear, believing that an intruder was lurking behind his toilet door.
The state will argue in the Appeal Court that this finding was simply wrong – that anyone firing four shots into a tiny enclosed toilet cubicle would expect that whoever was inside could die.
Pistorius’s lawyers, in turn, will stress Judge Masipa’s factual finding that the Paralympian believed Steenkamp was in his bedroom when he fired the shots – and was trying to defend her and himself.
In court papers filed at the High Court, Pistorius’s lawyers say that Masipa made her decision based on the facts before her, not her legal interpretation – and the state’s planned appeal must therefore be quashed.
The leave to appeal argument will be heard by Judge Thokozile Masipa in March.
No date for the actual appeal hearing has yet been set.