'Slim chance of success at ConCourt'

09 December 2015 - 02:44 By Roxanne Henderson

Two criminal defence lawyers - Llewelyn Curlewis and William Booth - believe that Oscar Pistorius's chances of success in the Constitutional Court are slim. Legal experts have said the extensive reportage of Oscar Pistorius's murder trial could be one of the appeal grounds the Paralympian raises before the Constitutional Court.Defence Advocate Barry Roux SC confirmed on Tuesday as Pistorius appeared in the Pretoria High Court that he will apply for leave to appeal his murder conviction at the Constitutional Court. Pistorius applied for and was granted bail pending his new sentencing hearing in the high court on Tuesday.On December 3, Pistorius, 29, was convicted by the Supreme Court of Appeal (SCA) of murdering his girlfriend, Reeva Steenkamp, setting aside the Pretoria High Court's ruling that he was guilty of culpable homicide. The SCA referred the case back to the Pretoria High Court to sentence Pistorius anew.Pistorius shot Steenkamp, who was 29, through a locked toilet door at his Pretoria home on February 14 2013. He claimed that he had fired the four shots believing that an intruder was in the house and that he and Steenkamp were in danger.In an affidavit before court, Pistorius detailed some of the grounds on which he plans to approach the Constitutional Court, including:That the SCA impermissibly reconsidered a factual finding by trial judge Thokozile Masipa that he genuinely and honestly believed that his and Steenkamp's lives were in danger when he fired the shots.That the SCA, by reconsidering the aforementioned factual finding, denied him the right to appeal that finding.That the SCA dealt incorrectly with putative self-defence by introducing an element of objectivity into the test. Putative self-defence is a defence raised when an accused genuinely believed his life or that of another was in danger but he was mistaken.That the SCA dealt with the principle of dolus eventualis incorrectly by considering the knowledge of unlawfulness as distinct from it. Dolus eventualis is a form of intent which provides that if someone foresees the possibility that his actions may cause someone's death and reconciles himself with that possibility by going ahead, he is guilty of murder.The affidavit stated that these grounds were not exhaustive.Criminal defence lawyer Llewelyn Curlewis said that Pistorius thus kept the door open to introduce more grounds for appeal in his application.Curlewis said he believes Pistorius's best chance of success would be to argue that his constitutional right to a fair trial has been infringed. He said Pistorius may claim that he was prejudiced by the media's presence at his trial, the first to be televised live in South Africa.But lawyer Ulrich Roux said Pistorius can only base his application on grounds emanating from the SCA's ruling and this excludes the infringement of his right to a fair trial.Curlewis, Roux and criminal defence lawyer William Booth all believe Pistorius's chances of success in the Constitutional Court are slim.Curlewis said that if the Constitutional Court refuses to hear Pistorius's appeal, he may approach Chief Justice Mogoeng Mogoeng directly and ask him to reconsider.Deputy Judge President Aubrey Ledwaba on Tuesday set Pistorius's bail at R10 000, due to be paid by 4pm on Friday.Pistorius will remain under house arrest at his uncle Arnold's luxury home in Waterkloof‚ Pretoria, where he has been staying since his release from prison in October.Pistorius was sentenced to five years in jail in October 2014 but was released under correctional supervision after serving about a year behind bars.He may leave the house between 7am and noon and may not travel further than 20km from his uncle's house. He will be monitored electronically by the Department of Correctional Services and must appear in the high court again on April 18 to report on the progress of the planned appeal.He now has until mid-January to file his application with the Constitutional Court...

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