Monday, 18 February 2013

Oscar Pistorius and unlawful killing

Before we pass judgment, or a crude joke relating to the alleged murder of a South African model, it is probably important to understand that we do not know all the facts.  A Pristorius family member recently stated that the alleged crime would not be “knowingly done” by the world-renowned athletics phenomenon and full and complete details are clearly not available at this time.

We know this: a young lady tragically lost her life and a globally renowned sports star is accused of her murder.  The facts will expose themselves in the fullness of time, for now, it would be premature to speculate in any conclusive manner.

Pistorius was arrested amidst widespread media confusion on Valentines Day 2013.  His fairly recent girlfriend, Reeva Steenkamp (a local South African model) was shot dead at his upmarket golf course estate home in Pretoria. 

The 26-year-old Olympian is currently in police custody with a bail application set for Tuesday, 19 February 2013.  The State is set to oppose bail with political groups in South Africa calling for bail to be denied.

As it currently stands, Pistorius is being detained in a police station for his own protection. Latest reports indicate the State Prosecutor will seek to charge Pistorius with premeditated murder.  In terms of the Criminal Procedure Act, this offence carries a minimum life sentence.

Pistorius, a global role-model, has been charged with murder.  In South African law, murder is simply defined as the unlawful and intentional killing of a human being.  Contrast this with the definition for culpable homicide, which is the unlawful negligent killing of another human being, and you will not require a post doctoral degree in law to spot that the only difference is intention.  The specific mindset of the accused.  As an aside, there is no manslaughter in South African law but culpable homicide is the comparable specific offence.

By way of example, if you were travelling in a car at 145km per hour, after four beers, and you were involved in an accident with loss of life, you may well face culpable homicide charges.  This is because in this situation you would not have intended to kill someone (murder), however, if the loss of life has resulted from your negligence, it is likely that a charge of culpable homicide will be pursued.  Conversely, if one intentionally takes another’s life, only then will a murder charge be appropriate.  The talk of premeditation in the murder charge relates to one planning and then knowingly committing a murder.  This is a severe offence.

Insofar as the bail application is concerned, it is important to remember that bail is non-penal in character.  In other words, it should not form part of the sentence to punish the accused. The basic principle guiding bail applications in South Africa relates to the interests of justice.  If, after considering all relevant factors, the court is satisfied that the interests of justice so permit, the accused will be released on bail; pending the final verdict or decision. This principle is protected in South Africa’s Constitution and restated and emphasized in the Criminal Procedure Act.

Factors that the court will consider on Tuesday to weigh up the interests of justice are:

    the accused's period already in custody since his arrest;
    the probable period of detention until the disposal of the case if there is no release;
    the reason for delay, and whether the fault is the accused's;
    the financial loss the accused may suffer on account of his detention;
    any impediment to the defence which detention may cause;
    the accused's health; and
    any other factor.

Clearly, the introduction of “any other factor” leaves bail applications wide open to the introduction of any relevant factor.  Consequently, without knowing all the facts, one cannot accurately determine whether the charge of murder or premeditated murder will succeed.  Equally, one cannot with unequivocal certainty speak to the success of the bail application until being in possession of all relevant facts.

A remarkably terrible coincidence is a Nike advert comparing Pistorius to a bullet in a chamber.  This advert has been taken down from diverse sources; in the real and digital world. Various corporate entities will be considering sponsorship agreements and whether guilty or innocent, the lives of the individuals involved will never be the same.


  1. Oscar Pistorius' affidavit (complete with typos) reads as follows:

    I am an adult male, SA citizen and applicant in this application and seek to be released on bail.
    I make this affadavit of my own free will and have not been influenced. Contents is true and correct.
    I fail to understand how I could be charged with murder, let alone premeditated murder because I had no intention to kill my girlfriend.
    I have been informed I have been acused of murder – I deny the accusation.
    Nothing can be further from the truth that I planned the murder of my girlfriend.
    I have no intention to relocate as I love my country.
    I earn R5.6m a year. I’ve never been convicted of crimes.
    I deny that I committed murder in the strongest point. Even though I don’t have to, I want to deal with these allegations.
    Reeva had bought me a present for Valentine’s Day. We were deeply in love.
    We were deeply in love and couldn’t be happier. I loved her and I know she felt the same way.
    On 13 Feb Reeva would have gone out with her friends, me with mine. She wanted to stay at home.
    By about 22h00 we were in my bedroom. I was watching TV. My legs were off. She was doing yoga. At the end of the evening we got into bed.
    I’m accutely aware of people gaining entries to homes to commit crime, I’ve received death threats.
    I sleep with my 9mm under my bed. I woke up to close the sliding door and heard a noise in the bathroom.
    I was scared and didn’t switch on the light. I got my gun and moved towards the bathroom. I screamed at the intruder because I did not have my legs on I felt vulnerable. I fired shots through the bathroom door and told Reeva to call police.
    I walked back to the bed and realised Reeva was not in bed. Its then it dawned on me it could be her in there.
    I rushed back into the bedroom and opened the sliding door onto the balcony and screamed for help.
    I put on my prosthetic legs, ran back to the bathroom and tried to kick open the toilet door.
    I think I must have then turned on the lights.
    I went back into my bedroom and grabbed my cricket bat to bash open the toilet door.
    I called paramedics and complex security. I tried to carry her down stairs for help.
    I tried to help her but she died in my arms. I am mortified.
    With the benefit of hindsight I realise that Reeva went to the bathroom when I went to close the balcony door.
    I trust the South African legal system and the facts will show that I did not murder Reeva.
    I believe the forensic evidence will prove what I am saying. I used a cricket bat to break open toilet door.
    I am an international sports star, I will not evade my trial.
    After the shooting I did not flee the scene. I remained until the police arrived.
    I dont know of any witnesses in this matter, and I won’t interfere with any witnesses.
    My continued incarceration will be of “no benefit” to the state. Release would not disturb the public order.


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