Monday, 19 August 2013

Oscar Pistorius: Murder Trial Information

The Oscar Pistorius murder trial gathered pace in Pretoria on Monday when the indictment was made public by State Prosecutors.  The indictment contains two charges, one for premeditated murder, and another for illegal possession of ammunition in terms of the Firearms Control Act.  There were no charges relating to the reckless discharge of firearms, as widely reported in South Africa over the weekend.

The trial is set down for 3 to 20 March 2014 in the Pretoria High Court and the State is seeking to call 107 witnesses to prove its case.  A staggering amount of witnesses, and clearly the State envisages a dispute on a wide range of evidentiary and factual issues.  The trial duration, in my view, is also on the lengthy side but this is to be expected, given the nature of the defendant.

Above all, the State must prove (beyond reasonable doubt) that Oscar Pistorius unlawfully and with intention, murdered Reeva Steenkamp in a premeditated manner.  That is, he not only killed the young model but he premeditated this act.  Moreover, it must show, that in terms of the Firearms Control Act, Oscar possessed illegal ammunition.

It is important to note that the State does not need to include any competent verdicts (lower versions of the crime) on the charge sheet.  Simply, if the State cannot prove premeditation, the “next” crime would be murder (without premeditation).  If the State cannot prove that Oscar acted with intention, the “next” competent verdict would probably be culpable homicide, which is the negligent killing of another human being – the element of intention is not required for the crime of culpable homicide.  If there is a dead person and their death is a result of another’s negligence, culpable homicide will be likely if intention cannot be proved.  Essentially, if intention exists the crime is usually murder.  Where there is no intention, but negligence, the crime is culpable homicide.

What are the key issues?

The State must have evidence to show that Oscar Pistorius not only murdered Reeva Steenkamp (intentionally) but he also premeditated the crime.  The premeditation raises the severity of the crime and heavily influences bail and sentencing.  In South Africa, we do not have degrees of murder; it is simply the 1. unlawful and 2. intentional 3. causing of death of another 4. human being.

1. Unlawful

In most societies it is against public policy and social norms to take the life of another.  Almost invariably, killing another will be regarded as unlawful conduct.  However, the unlawful element can be vitiated if Oscar has a ground of justification for the crime.  The most common justification is private (self) defence.  Indeed, in this case, Oscar will probably seek to justify his actions on the basis that he was acting reasonably and within the scope of private defence to protect his own life and that of his loved one (who, on his version, was in danger).

In South Africa, there is authority for the fact that private defence, in limited circumstances, can be used to kill another to protects ones own life.  If it is found that the conduct of killing another was private defence, then there is no unlawfulness and if there is no unlawfulness, there can be no crime.  In fact, in Ex parte Die Minister van Justisie: in re S v Van Wyk, a 1967 appeal court decision which is still binding, the court found that killing another to protect property can be permitted.  However, given today’s constitutional dispensation, it is likely a case on similar facts to S v Van Wky may be decided differently. That academic nicety aside, there is concrete authority, both old and new, for the proposition that killing is justified where in private defence of ones own life.

2. Intentional

The key element in a murder charge (whether premeditated or otherwise) is intention.  If the State cannot prove intention insofar as the murder is concerned, there can be no conviction of murder and the next enquiry is whether the death of the person was caused by negligence.

How is intention proved?  At the risk of over-simplification, intention is proved by using objective elements (what would the reasonable person infer from the facts of the matter) and subjective factors (what was Oscar thinking at that time).  It is a complex enquiry and will take hours and hours of evidence to determine.

3. Causing of death 4. Of another Human Being

This does not appear to be in dispute.  Reeva Steenkmamp was killed by Oscar Pistorius – whether this killing was unlawful, alternatively, intentional is where the matter will be decided.

With that in mind, the trial will be a landmark one in South Africa.  The right to life taken against the right to protect ones own life will be discussed.  The plague of violence against women will be highlighted.  The fallen hero will be mourned or vilified, depending on which side of the fence you sit.  Forensic evidence will be analysed carefully and deliberately. All relevant persons will be heard. The long-standing common law precedent relating to murder, and the bounds of self-defence, will be revisited and debated at length.

It is South Africa’s version of the OJ Trial.

Saturday, 17 August 2013

Oscar Pistorius: What next?

Oscar Pistorius is due to appear in court on Monday 20 August 2013.  It is being widely reported by South African media that the South African National Prosecuting Authority (“NPA”) will bring two extra charges, both relating to separate incidents involving the reckless discharge of a firearm.

According to E News Channel Africa, the additional charges relate to the discharging of a firearm at a Johannesburg restaurant and for the discharging of a firearm through the sunroof of a vehicle.  Both incidents separate form the murder charge and at different periods of time.

What about time limits? And, can the prosecutors combine these charges with the main offence?

In South Africa, insofar as criminal offences are concerned, there is no statute of limitations placing a time limit on criminal law prosecution.  As is the case with many other common law jurisdictions, there is, generally speaking, no time limit on serious criminal offences.  Clearly, if a substantial period of time has elapsed since the commission of the crime and the prosecution thereof, a judge may rule that the time delay infringes on a defendant’s right to a fair and speedy trial.  Typically however, where a crime has been committed, a State is entitled to prosecute that crime at any stage where the evidence dictates a prosecution may be successful, even if a decade or more after the fact.

Similarly, in international law, war crimes, genocide, crimes against humanity are specifically excluded from any form of statute of limitations by international conventions such as the Rome Statute of the International Criminal Court, which states at Article 29:

“The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations”

Conversely, most international legal systems apply a prescription or statute of limitations insofar as civil matters are concerned.  In South Africa, the applicable piece of legislation is the Prescription Act 68 of 1969.  All actions must be instituted within three years of the Plaintiff becoming aware of the action.  There are, of course, a few nuances and exceptions but largely, a plaintiff has three years to institute a civil claim.  If he does so after the three-year period, the claim would have prescribed by the effluxion of time and it operates as a complete defence against any civil action.  So, the next time that pesky retail store that keeps calling you about the jeans you purchased in the 90’s, think about prescription…

With that in mind, it is completely within the ambit of criminal law to charge Oscar Pistorius with two further crimes that are, on the face of it, unrelated to the murder charge.  There would be no point in running new trials to charge a defendant with the reckless discharge of a firearm so the State Prosecutor will combine these offences with the murder charge when the court convenes on Monday.  The Court will ultimately decide whether to add these charges, but it is certainly possible, and looking at media reports, seems entirely likely.

What happens from here?

The NPA has confirmed that the defendant will “definitely” be charged with premeditated murder and further charges are “possible”.  It is likely the defendant will be made formally aware of all the charges he will face and a trial date will be set.  It is unlikely that anything further or material will take place, other than a trial date and formal knowledge of all crimes Oscar Pistorius is charged with.  No one can know exactly when the trial will be heard but reports are suggesting that it will be early 2014.  The NPA and judiciary cannot be seen to be giving Oscar favorable treatment and in South Africa one normally waits at least 6 – 18 months for a trial date, depending on the particular court and available resources.  That being said, there is international interest in this matter and a speedy trial date will be in all parties’ interests. 

Wednesday, 14 August 2013

Technology, Law and Legal Education

The Law Society of South Africa is hosting a discussion forum on the state of Information Communication Technology (“ICT”) relating to lawyers and the practice of law.  This critical discussion follows the ICT Policy Colloquium held on 19th and 20th April 2012.  The ultimate outcome of the latter policy discussion, facilitated by the South African Government’s Department of Communications, is to produce a White Paper on integrated ICT policy framework for South Africa by the end of the 2014/2015 financial year.  The Government Gazette Notice, issued by the Minister of Communications in April 2013, can be found here. [PDF]

With that in mind, there are a few important points to consider.  The use of information technology and new forms of communication are both widespread and pervasive. The legal fraternity, traditional by its very nature, has unsurprisingly been slow to adapt to the dramatic change in society and communication.  Hourly billing rates, intensive administration and an attitude that is determined to preserve the status quo will see many in the profession fade into obscurity or lose market share.

All professions must stay relevant and keep a nimble attitude if they are to survive the information age. There are many intelligent and experienced senior members of my profession calling for a complete overhaul of professional legal training and law school training.  It is in crisis, many will argue.  What crisis you may ask?  Well, at no stage in any formal legal curricula is any student taught formal skills relating to information technology, the influence of ICT on the political and law-making arena, privacy issues exacerbated by the immediacy of the platform and the increasingly prevalent global phenomenon of data protection.  Moreover, electronic research, case management, trial practice and a variety of other aspects relating to technology and law have, largely, been ignored.

You may find a young lawyer who has conceivably achieved great results in four or five years of university, served two years of articles of clerkship and has no idea about, for instance, the Electronic Communications Act or the Protection of Personal Information Bill (soon to be an Act).  This is dangerous for both the lawyer and his/her future client.  Electronic communication is now a way of life.  Facsimile and more traditional means of communication are being relegated to secondary forms of speak.  We are transforming as a society and collectively we are doing so globally.  The practice of law, and any professional field is becoming an international, electronic endeavor and all lawyers should, at the very least, be superficially familiar with the ICT environment and seek to adopt a multi-disciplinary approach.  It is, in my view, the only way forward and institutions such as the American Bar Association have recognised this by amending professional rules of conduct to cater for the change in communication methodologies.  

To its credit, the LSSA leadership recognise the need for a change in attitude and are facilitating a variety of discussions relating to law and technology.  However, there is much to be done.  The state of our electronic communication jurisprudence is but embryonic at this stage.  Electronic signatures, definitions of electronic messages, electronic evidence, electronic court filing systems and many other aspects must be critically debated, and in many cases, amendments to the law must be made or new laws introduced. The key elements of the Internet’s success are the immediacy and efficiency it offers; lawmakers and policy-makers must not be left behind in the dust.

It does appear as if all parties are starting to row the boat in the same direction.  That is gratifying as it would be shortsighted in the extreme to overlook the burgeoning technological revolution.  Digital is upon us and we must act now or face the possibility of a profession and society without the necessary skills and even worse, a society without applicable or appropriate legal mechanisms to facilitate the efficiencies that technology can bring. 

A caveat with all this technology mumbo-jumbo; technology should never be adopted for technologies sake.  The primary rationale must be to drive efficiency and, ultimately, produce quicker, more profitable results.  Often, in my experience, many corporates or institutions implement ICT or forms of technology for the sake of checking a box and appearing relevant, or on the cutting edge.  The result with instances such as these is a haphazard, ad hoc approach that creates room for error, more manual administration, frustration and very little efficiency. The moral of the story: adopt technology, but do so with a holistic, pragmatic view.