Oscar has ‘no prospect of success’

State asks Concourt to refuse to hear Pistorius’s appeal against conviction

THERE is no reasonable prospect that the Constitutional Court will overturn Oscar Pistorius’s murder conviction and the highest court in the country should not entertain his appeal. This is the opinion the prosecution expressed in its papers opposing Pistorius’s application for leave to appeal to the Constitutional Court.

In an affidavit, prosecutor Andrea Johnson said the Supreme Court of Appeal (SCA) made no errors in law and did not exceed its jurisdiction, as Pistorius’s lawyers argued.

The Pretoria High Court found Pistorius, 29, guilty of culpable homicide in September 2014 for shooting dead his law graduate girlfriend, former Port Elizabeth model Reeva Steenkamp, on February 14 2013, believing that she was an intruder.

But the SCA overturned this judgment last year, replacing it with a murder conviction and referring the case back to the high court for sentencing.

Johnson asked the Constitutional Court to refuse to hear Pistorius’s appeal, saying that it was not in the interests of justice because the law on dolus eventualis was clear and Pistorius had no prospect of success.

“I submit that it is in the interests of justice that criminal trials ought to be finalised without undue delay and submit that it is in the interests of justice that the applicant [Pistorius] now appears before the trial court to be sentenced on the crime he has committed,” she said.

Criminal law expert Llewellyn Curlewis said though the Constitutional Court now had a wide discretion on which cases it could attend to, he did not think it should hear Pistorius’s case.

“Having read the petition by the defence team and the National Prosecuting Authority’s affidavit, I am not convinced that there are new matters of law raised that require the attention of the Constitutional Court,” Curlewis said.

He said the SCA seemed to be correct in its interpretation of the law.

“It is now in the hands of the Chief Justice [Mogoeng Mogoeng] to decide whether or not it will grant leave to appeal,” Curlewis said.

In Pistorius’s application to the Constitutional Court, his lawyer, Andrew Fawcett, said the SCA only had the right to consider questions of law and had overstepped its bounds by considering facts when it rejected the Pretoria High Court’s finding that Pistorius acted out of fear in a genuine, though erroneous, belief that his and Steenkamp’s lives were in danger.

Fawcett said because Pistorius genuinely believed their lives were in danger, he believed he was acting in self-defence and thus lawfully.

Knowledge of unlawfulness was a component of dolus eventualis and the SCA had failed to consider it, Fawcett argued.

But Johnson said the SCA had correctly rejected Pistorius’s reliance on putative self-defence and applied the legal principles correctly to the facts accepted by the trial court.

“The SCA correctly found that in order to bring the accused within the ambit of putative private defence, he must have intended to shoot at the person whom he thought posed a danger to him,” she said.

“The applicant [Pistorius] testified that he did not intend to shoot at whoever was inside the toilet and thus he fell outside of the ambit of the defence of putative private defence.”

She rejected Fawcett’s argument that the SCA made a mistake by introducing an objective rational person test in considering the principle of dolus eventualis while it should only have taken Pistorius’s subjective state of mind into account.