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.
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.
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.