Where Judge Masipa Got It Wrong!

I’m utterterly, irrevocably, unequivovably wrapped up in the Oscar Pistorius judgement, like every other citizen of the planet I imagine. Work? Bah! I’m throwing popcorn at the TV, vilifying Judge Masipa after what was (in my opinion) a terrible judgement! But because my legal knowledge is warped between Suits, Law & Order and Najwa Petersen and because I’m way too emotional, and downright judgemental, I requested the legal opinion of an expert, Advocate Ashleigh Christians, who here explains how Judge Masipa erred.

“By now we know that Oscar Pistorius was found not guilty of murder because, as Judge Thokozile Masipa and her assessors have concluded, he did not foresee the possibility the he might kill Reeva Steenkamp when he shot at the bathroom door. For that reason, so the argument goes, he did not have the requisite intention to justify a conviction of murder.

What has been a common theme throughout the trial is that it matters not whether Pistorius thought it was Steenkamp behind the door or whether he genuinely believed it was an intruder because the essential elements of murder are:

a) The unlawful;

b) And intentional;

c) Killing;

d) Of a human being.

In South African law, the doctrine of error in persona is not a legal defence to murder. In laymen’s terms, if I intend to kill X and after identifying X I shoot, and it later turns out that who I thought was X was actually Y, my mistake does not negate my intention to kill the person at whom I aimed and shot.

The defence sought to argue that the doctrine refers only to cases where the targeted person is clearly identified and the error is made as to the identity of that figure, so to speak.

In this case, Oscar did not actually see the person he was shooting at and, so their argument goes, this is not a case of error in persona.

They used the following apparently fictitious example (a textbook rather than a judgment was cited as authority):

· A mother gets up with a firearm after hearing noises and suspecting an intruder

· The daughter hears the commotion and sneaks into the mother’s bedroom and closes the door out of fear

· The mother thinks the intruder is in the bedroom and shoots through the door killing her daughter.

With the utmost respect, even if the judge bought this reasoning, she did not deal with it at all and so, she erred in her failure to do so. Pistorius knew that a person was behind the door, ergo, he had identified a specific person who he thought to be an intruder, and located that person to a specific location and shot accordingly.

I cannot imagine that our law is such an ass as to make the random happenstance of there being a door between the identified person and the shooter as a legal defence! Surely this is absurd?

Of course the example above tugs at our heart strings but the mother in the example could be exonerated in a host of ways that does not include negating her intention to kill the person she identified as being behind the door.

Unfortunately, the question has not been positively answered in our case law and Judge Masipa has missed the perfect opportunity to do so. I trust that Gerrie Nel will appeal against this patent error of law and the SCA will have the opportunity to confirm whether I am correct or not.”

Adv. Ashleigh Christians