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Tue Sep 27 19:14:35 SAST 2016

This is how appeal court went wrong: Pistorius's lawyer

Marzanne Van Den Berg | 12 January, 2016 12:08
Oscar Pistorius speaks to his lawyer Barry Roux at the North Gauteng High Court in Pretoria.
Image by: POOL / REUTERS

In finding Oscar Pistorius guilty of murder‚ the Supreme Court of Appeal (SCA) exceeded its jurisdiction and made errors of law.

This is the contention by Pistorius's lawyer in an application filed on behalf of the amputee sprinter at the Constitutional Court.

Pistorius is applying for permission to appeal to the Constitutional Court against the SCA's December 2015 judgment in which it set aside his culpable homicide conviction and found him guilty of murder.

The Pretoria High Court convicted Pistorius of culpable homicide in September 2014 for shooting and killing his model and law graduate girlfriend‚ Reeva Steenkamp. Pistorius shot Steenkamp through a locked door in his Pretoria home on February 14 2013. He said he thought she was an intruder and their lives were in danger.

The SCA referred the case back to the high court for a new sentence to be imposed.

Pistorius was granted bail in December last year to await the outcome of his Constitutional Court application. The sentencing cannot go ahead until the Constitutional Court has either dismissed his application or heard the case and ruled on it.

Lawyer Andrew Fawcett said in the application that the SCA went beyond its jurisdiction by rejecting the High Court's factual finding that Pistorius genuinely‚ though erroneously‚ believed that his and Steenkamp's lives were in danger. He said the SCA does not have the power to reject factual findings of the trial court.

Fawcett also said the SCA made mistakes in its application of the principle of dolus eventualis. The court found Pistorius had intent in the form of dolus eventualis‚ which means even though one does not directly intend to kill someone‚ you are guilty of murder if you foresee that it can happen and go ahead anyway.

Fawcett said the SCA failed to consider the second component of dolus eventualis‚ namely whether Pistorius knew that his actions were unlawful.

He also said the court introduced an objective test of what the rational person would have believed and done instead of the subjective test it should have used.

The state now has 10 days to respond if it plans to oppose the application.

- TMG Digital/TMG Courts and Law

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