JUDGE MASIPAGOT IT RIGHT: Oscar Pistorius andthe intentionto kill

Yesterday Judge Masipa, sitting at the High Court in Pretoria, South Africa, handed down part of her much-anticipated judgment in the Oscar Pistorius murder trial.

To much public dismay, she held that the State failed to prove beyond a reasonable doubt that Pistorius had the requisite intention to commit murder. This is the standard for criminal liability in South Africa. Judge Masipa, as was expected, found Pistorius guilty of negligent (culpable) homicide. [UPDATED]

The preliminary view of analysts and commentators appears to be that Judge Masipa got it (horribly) wrong!

Eusebius McKaiser has — he admits (on his Facebook page) with incredible haste — commented that, “[Judge Masipa] did not apply the law to the facts correctly. She should have found Pistorius guilty of murder but instead offered unconvincing legal justification why she decided not to.” Professor Pierre de Vos (here) and Gushwell Brooks (here) raise similar considerations.

McKaiser’s criticism of Masipa’s reasoning is the following:

“Unlike in many other jurisdictions around the world, you can also be found guilty of murder in South Africa if you could have forseen that your action that you performed could kill someone, but you still performed that action, in effect reconciling yourself with the eventual outcome – death – that will result from your action…. So if Pistorius did not kill Steenkamp as a result of premeditated, unlawful action, it doesn’t yet follow in law that he is not guilty of murder.”

McKaiser is invoking the concept of “dolus eventualis”, which is itself not an unproblematic concept. The concept (which I attempt to explain below) found it’s way into South African common law (Roman-Dutch law) through German law. [Shannon Hoctor has written a useful review on the history of the concept in Fundamina (2008).]

Dolus eventualis: Why Judge Masipa is right

While it may be wise to wait for Masipa J’s full judgment and thus her reasoning, McKaiser’s (at al) criticism is not correct. Here is why, briefly:

1. Dolus eventualis has two components “a cognitive component, foresight of the possibility of harm, and a conative (or volitional) component, most often expressed as recklessness whether the harm will result.” (See Hector (above) and S v Malinga, 1963.)

2. The Supreme Court of Appeal has stated the test thus: “The question to be decided is whether the State has proven beyond a doubt that the appellant subjectively foresaw the possibility that his actions would result in the death of the deceased, and nevertheless persisted in his conduct.” (Shongwe JA in Makgatho here.)

What does Shongwe JA mean by “subjectively”?

3. Snyman’s view on this point: “A person acts with intention, in the form of dolus eventualis, if the commission of the unlawful act or the causing of the unlawful result is not his main aim, but he subjectively foresees the possibility that in striving towards his main aim, the unlawful act may be committed or the unlawful result may ensue, and he reconciles himself to this possibility.”

4. The test, therefore, is wholly subjective. According to the Supreme Court, “The fundamental question is not whether he should have accepted that the result would follow, but whether in actual fact he accepted that it would follow.”

In Oscar’s case, the State failed to prove this “actual reconciliation” beyond a reasonable doubt. In fact, it was not the State’s case that Pistorius foresaw that he was going to kill the “intruder” and reconciled to that possibility. Instead, quite befuddlingly, Advocate Nel (the State prosecutor) opted for what most of us thought was an impossible route – proving that Pistorius intended to kill Steenkamp.

It is worth noting that saying Pistorius “should have foreseen” that opening fire at the “intruder” would lead to the intruder’s death is negligence, not intention. That is a “reasonable man” or objective standard. A subjective standard is what Pistorius actually foresaw and actually reconciled himself to, as the consequence of his actions.

Is Nel’s cockup fixable on appeal?

The answer to this question is (likely) NO. As a matter of principle, courts on appeal do not interfere with factual findings of the court of first instance. The appeal court deals only with the law. What Pistorius actually thought is a factual finding.

Therefore, it will be extremely difficult, if not utterly impossible, to overturn Masipa J’s findings on the facts as presented or proven by the State.