"Justice is when the Judgement is in your favour," wrote the Dutch philosopher, Hugo Grotius (1583-1645), whose legal philosophy underpins South Africa's Roman/Dutch law. But one may also add that, the devil is not in the detail; the devil is in the interpretation. Pusch Commey, a Defence Counsel who has prosecuted and defended several murder cases in the Johannesburg High Court, gives his view on the Oscar Pistorius verdict.
When a beautiful model is gunned down by a famous boyfriend within the context of spiralling cases of domestic and gender violence, it is tempting to see deja vu, at first glance. And when the perpetrator admits having fired the shots that killed the deceased, the conclusion of murder cannot seem simpler in the eyes of the public.
Just over a year ago, I wrote an article titled: "The devil is in the interpretation", for this publication regarding the Oscar Pistorius murder trial. At that time I was absolutely convinced that Oscar Pistorius was done and dusted for the murder of his model girlfriend Reeva Steenkamp. The only question was how much jail time.
It was simple, I presumed. On Oscar's own version, if you think there is an intruder in your bathroom and you take a gun and cock it; you walk up to that bathroom and fire four shots through the door into that bathroom, surely you must foresee that those shots might kill a person. It does not matter that the person turned out to be your sleeping girlfriend. The spirit of the legal principle dolus eventualis says you must be found guilty of murder.
Time and time again the dolus eventualis principle has been applied with venom in the South African High Court, especially in cases of robbery and murder. For example, if a criminal gang of 10, with 2 firearms, rob a shopping mall, a shoot-out with security ensues, and people die, often all 10 robbers, if properly identified, get convicted of murder--based on dolus eventualis. Even those who did not pull the trigger, such as the driver of the getaway car parked some distance away, get convicted of murder because as some judges reason, they should have foreseen that when they set out together to rob the mall, the guns would be used. They foresaw that there might be resistance and a shootout would ensue that would lead to the death of somebody.
The Pistorius verdict by Judge Thokozile Masipa has received mixed reactions, with some factions even scandalising the judge. But Judge Masipa and assessors had the benefit of sitting...