Now that Oscar has been given bail and granted the right to travel, conversation has returned to his statement and how it might hold up in a court of law. We have investigated the alternative arguments (and punishments) available to him.*

* We would like to make it very clear that this article is posing hypothetical scenarios to aid current social debate and to present various legal alternatives in layman’s terms. We are not trying anyone, nor are we saying Oscar Pistorius’ version of events is true or false. 

2oceansvibe chatted to Ross McKernan, a lawyer at one of SA’s top criminal legal firms, Mathewson, Gess Inc. Attorneys, who was very helpful in putting this together.

So the State are alleging the murder (an unlawful intentional act that causes the death of another person) was planned or premeditated which will bring a conviction within the scope of the minimum sentencing legislation, which means an automatic 25 years direct imprisonment – unless substantial and compelling circumstances are present to allow a departure from that minimum.

If the State falls short of establishing the planned or premeditation of it but proves murder it means an automatic 15 years imprisonment – unless substantial and compelling circumstances are present to allow a departure from that minimum.

If the State falls short of establishing his conduct causing her death was intentional, but it is proves that his conduct was negligent he will be convicted of culpable homicide (the unlawful negligent killing of another human being). 

If the State fails to show his conduct was either intentional or negligent he gets acquitted.

The two options:

A: “It filled me with horror and fear of an intruder being insider the toilet. I thought he must have entered through the unprotected window. As I did not have my prosthetics on and felt extremely vulnerable, I knew I had to protect Reeva and myself. I believed that when the intruder came out of the toilet we would be in grave danger. I fired shots at the bathroom door.”

This raises the defence of putative private defence and can amount to a full acquittal if both negligence and intention can be excluded. However if only intention can be excluded (which is more likely) negligence will stand and a conviction will follow on the competent verdict of culpable homicide (the unlawful negligent killing of another human being).

Briefly and in laymans terms, if A shoots B under the honest and erroneous impression that he was acting in private defence, then he isn’t guilty of murder. If his honest and erroneous belief is also reasonable, then he isn’t guilty of culpable homicide. S v Dougherty 2003 (2) SACR 36 (W) confirms this.

S v Dougherty 2003: A 63 yr old man hosts a bday party when two of his leaving guests are brutally attacked by 2 men outside. He learns of the attack, takes his firearm to investigate and came across 2 men. In the following exchange he feared for his life and fired shots not aimed at anyone just in their direction. He was first convicted of murder and given 10 years, but this was overturned on appeal and change to culpable homicide for which he received 3 years correctional supervision ito s276(1)(h).

B: We had a “fight” and in the heat of the moment I shot her.

This raises a defence akin to sane automatism or temporary insansity, that is almost doomed to fail. The chance of success is premised on an onerus evidential burden and failure will mean a conviction on murder.

To reiterate:

In the first scenario he claims to have shot an intruder through a door because he mistakenly thought his life was in danger but admits that his mistake was unreasonable. Simplistically this equates to a conviction of culpable homicide.

In the second scenario he claims to have suffered a temporary moment of blurred judgment be it from alcohol, drugs, steroid anger or she provoked him and he shot her. Simplistically this can amount to murder but not premeditated murder:

Here are some actual cases where the culpable homicide plea has played out, and what the process/punishments were:

S v Crossberg 2008 SCA: The accused fired shots into the bush to ‘scare away baboons’ but killed a farm worker. He received 20 years imprisonment for murder. The Supreme Court of Appeal upheld his appeal and changed the conviction to culpable homicide and the sentence to 5 years imprisonment of which 2 years were suspended.

S v Gumbu 2006: A security man shot and killed his supervisor at night. He was convicted of murder and sentenced to 15 years imprisonment by the trial court. The appeal court accepted his version that he thought it was a thief, found he was negligent and changed the conviction to culpable homicide. His sentence was 5 years imprisonment, for which 3 years were suspended.

S v Chauke 1991: A man goes to get rekindle his relationship with his ex at her house. Her father threatens him with an assegai. The man pulls his firearm and a shot goes off, killing the father. The trial court convicted him of murder and gave him 10 years. On appeal the court changed the verdict to culpable homicide and the sentence to 5 years.

S v Tshabalala 2012: Two men were in a room with a gun. A shot went out. One man died. The trial court convicted him of murder and this conviction was appealed. The appeal court changed to it culpable homicide as the inference that he shot the other man intentionally was not the only inference that could be drawn. The matter was referred back for sentencing, but interesting in regard to the burden of evidence.

S v Naidoo 1997: The accused mistakenly believed he was being burgled, shot and killed his father. The accused had had previous burglary attempts at his home, and shot through the kitchen door at a person, that turned out to be his dad. He was convicted of culpable homicide.

S v Nesane 2008 SCA: In 2001 at the High Court the man was convicted of murder for shooting his wife in the mouth causing her death and received 45 years imprisonment. On appeal to the Supreme Court 7 years later his conviction altered to culpable homicide and is sentence changed to 8 years but antedated to 2001.

S v Netshitungulu 2003: A security guard heard running steps behind him, fearing for his safety he turned around to fire a warning shot in the air but pulled the trigger to early and the shot hit his colleague killing him instantly. He pleaded guilty to culpable homicide and received 5 years imprisonment with the option of correctional supervision. The High Court on appeal altered the sentence to a R1500 fine or 6 months imprisonment wholly suspended for 3 years.

S v Zake 2007: The accused was to referee a soccer match but given a firearm for safe keeping prior to the game. He kept it in his pants. He gave a penalty that was hotly contested and a confrontation ensued. He feared for his life and tried to hit the one player with the firearm which went off killing a man. He was convicted of culpable homicide and sentence to 6 years imprisonment of which 2 were suspended.

Concluding remarks

In essence the decision to follow the former tact is preferable for three reasons:

1) It provides a ground to ensure you get bail, which isn’t something I have dealt with (above) and only mention it.

2) It is an easy defence to prove at trial.

3) If the defence doesn’t succeed to ensure an acquittal it will succeed in getting a conviction for culpable homicide.

Thanks a million to Ross McKernan at MGIA.

We hope all this information adds to the dinner-time mock-trial scenarios going on around the country and indeed the world at the moment,

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Some information on Mathewson Gess, the law firm we spoke to for this article.

Mathewson Gess is a unique law firm specialising exclusively in criminal law. We are a team of highly skilled and experienced litigators, providing effective solutions to any criminal law problem.

With a team of six dedicated lawyers, we have the capacity to provide efficient service at short notice and at any location. Regardless of when and where someone is arrested, we ensure prompt assistance 24 hours a day, 365 days a year.

Being arrested and prosecuted is a traumatic process with potentially devastating consequences. Regardless of how serious or how potentially unpopular the charges you may be facing appear, you can rest assured that Mathewson Gess will fearlessly represent you throughout this daunting process.

Website mgia.co.za