Oscar Pistorius: 5 ways the SCA's judgment differed from Judge Masipa

07 December 2015 - 10:00 By Ulrich Roux
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Judge Thokozile Masipa and Judge Eric Leach (combined photo)
Judge Thokozile Masipa and Judge Eric Leach (combined photo)
Image: Reuters

There's nowhere to hide for Oscar Pistorius after the Supreme Court of Appeal (SCA) upgraded his conviction from culpable homocide to murder. We take a closer look at five ways the judgment handed down by the SCA differed from Judge Thokozile Masipa's...

1. The assessment of circumstantial evidence

When Captain Chris Mangena testified during the trial, Judge Masipa praised him for his helpful testimony.


When it came to handing down judgment, however, she referred to the majority of witnesses who testified, but failed to even mention Mangena’s unchallenged testimony pertaining to the shots fired by Oscar Pistorius. She did not make it clear whether any conclusion was made by her based on his testimony.

When Justice Eric Leach handed down judgment, he made it clear no circumstantial evidence can be ignored and that all evidence placed before a court must be considered as a whole when evaluating the merits of a case.

Circumstantial evidence, whether accepted or not by a court, must still be considered when reaching a verdict.

The court cannot deal with evidence in a piecemeal fashion, it must be seen as a mosaic of information in order to reach the correct verdict. Justice Leach stated that Judge Masipa mistakenly ignored crucial evidence, which was led, and should have attached more weight to a number of crucial witnesses who testified during the trial.


2. Pistorius was a poor witness

Judge Masipa confirmed that Pistorius was an evasive witness who changed his version on numerous occasions and that he had a selective memory pertaining to important questions asked during cross- examination.

Bizarrely, though, after having found he was a poor witness and that the numerous versions he provided the court with were mutually destructive, she believed him when he said he had no intention to kill whoever was behind the bathroom door and that he thought his and Reeva Steenkamp’s lives were in danger.

She convicted Pistorius of culpable homicide as a result of the fact that he showed true remorse immediately after having shot her and, to her, that showed he had no intention to kill Steenkamp.


Justice Leach agreed that Pistorius was a poor witness and states further that his entire version should have been rejected. Once again, Judge Masipa’s consideration of testimony in a piecemeal fashion was wrong and she should have considered his evidence as a whole.

Crucially, Justice Leach found that Pistorius could truly not have been under the impression that he acted within the law when he pulled the trigger four times.

3. Dolus eventualis


Judge Masipa incorrectly applied the test. She found that Pistorius could not have foreseen that his actions could lead to Steenkamp’s death and, therefore, he could not be found guilty of her death.

Justice Leach correctly found that Pistorius should have foreseen that his actions could lead to the death of a person and not specifically Steenkamp. That he reconciled himself with this fact and still shot four times, knowing he could kill a person, means he satisfied the requirements of dolus eventualis (indirect intent) and he should accordingly be convicted of murder.

Upon listening to Justice Leach’s interpretation of the principle, it is clear that Justice Masipa was confused, misunderstood dolus eventualis and applied it incorrectly.

4. Putative self-defence

Judge Masipa accepts one of Pistorius’s versions. It is unclear which one, but it seems as if she believed him when he said he was under the wrongful impression his life was in danger.

Justice Leach correctly finds that Pistorius’s version of self-defence contradicts his version that he did not intend to kill the perceived burglar and this version should thus have been rejected in its entirety.


5. Warning shot

During his testimony, Judge Masipa asked Pistorius why he did not fire a warning shot. He answered that he was scared the bullet would ricochet and hit him. She made no deduction from this answer.

Justice Leach found that Pistorius’s unwillingness to fire a warning shot should have been seen as prima facie evidence that he could not honestly and genuinely have believed that his actions amounted to being lawful.

Compiled by attorney and trial commentator Ulrich Roux

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