In the early morning of Thursday 14 February 2013, Reeva Steenkamp was shot and killed by Oscar Pistorius at his Pretoria home.  The Paralympian acknowledged that he shot Steenkamp, but said that he mistook her for an intruder. He was taken into police custody and was formally charged with murder on 15 February 2013.

The trial of Pistorius for the murder of Steenkamp was held at the Gauteng Division of the High Court, after 8 months of proceedings Judge Thokozile Masipa delivered a verdict that Pistorius was not guilty of murder and he was found guilty of culpable homicide. He was sentenced to a maximum of 5 years imprisonment.

For the purpose of this article we will not deal with the other charges.

The Media and the Trial

On 25 February 2014, Judge President Dunstan Mlambo ruled in the High Court in Pretoria that the entire trial could be broadcast live via audio and that parts of the trial could be broadcast live via television. For the first time in history South Africans and the rest of the world had front seats in the arena of our judicial system. The judge is “making sure everyone, whoever you are, rich or poor, famous or completely anonymous, can listen and watch this trial and see justice done”. In a country renowned for its violence, the South African legal system was under the microscope and our judicial system was on world media stage. Over 100,000 articles and social media mentions worldwide were published about the Paralympian in one day when he took to the witness stand at his murder trial.

With the trial having the world’s media attention focused on what actually happened on that fateful night, the rest of the world also has the unique opportunity of seeing how our criminal justice system operates. However Media is a business and like all businesses it needs to sell and what sells better than scandal? Media tactics include being deliberately obtuse, appealing to emotions, being controversial, intentionally omitting facts and information, it is all about obtaining attention. Trivial information and events are sometimes misrepresented and exaggerated as important or significant. By definition sensationalism is a type of editorial bias in mass media in which events and topics in news stories and pieces are over-hyped to increase viewership or readership numbers. The South African and international Media chose to sensationalise the Oscar Pistorius trial because that’s what the public wanted.

Think of this: Which newspaper title would draw your attention?

All legal elements were not proven beyond a reasonable doubt therefore the next competent verdict is Culpable Homicide


A man shoots his innocent girlfriend four times, killing her, verdict: Not guilty of Murder – South Africa what a shame!

So why was Pistorius acquitted of Murder?

Judge Masipa said the state had not proven beyond a reasonable doubt, that Pistorius was guilty of premeditated murder and also ruled out dolus eventualis, in other words common murder. Accepting that “he did not subjectively foresee a possibility, that he would kill the person behind the door, let alone the deceased as he thought she was in the bedroom”.

However she said a reasonable person in the same circumstances would have “foreseen the possibility that if he fired four shots, whoever was behind the toilet door might be struck and die as a result”. She added Pistorius “failed to take any steps to avoid the death, acted too hastily and used excessive force”. He was clearly negligent.

It is not disputed that there was never an attack on Pistorius, so the issue of unlawfulness is common cause and the only issue that was raised is whether putative defence on the part of Pistorius excludes his intention. Intention is a key element for murder, no intention – no murder. Our courts have often stated that where a person believes he is in danger, but he is not, it is regarded as a putative defence.  If that version is accepted by the courts the person relying on it cannot be convicted of murder as he never had the intention to kill. If the court finds that Pistorius version is reasonably possibly true then he cannot be convicted of murder.

The Media failed to emphasise the fact that the legal defence of Pistorius was in fact putative self-defence. By definition he, the accused, thinks that there is an imminent danger and acts in defence to that danger even though there is no factual danger – it is a state of mind. In other words it is a subjective test. And who is best to describe what was going on in Pistorius’s mind at the time of the shooting than Pistorius himself? This was a very clever tactic by the Defence, Barry Roux made Pistorius testify in his own murder trial. Murder accused generally elect not to testify in order to avoid incriminating themselves.

Here, in a case supported by circumstantial evidence, which is evidence that relies on an inference to connect it to a conclusion, the prosecution failed to prove that Pistorius was lying about his state of mind at the time of the shooting and that he did in fact have the intention to kill beyond a reasonable doubt. This is the standard of evidence required to validate a criminal conviction in most adversarial legal systems. The prosecution bears the burden of proof and is required to prove their version of events up to this standard.

So if I admit to the killing but I say that I didn’t mean to – then I cannot be found guilty of murder?

According to the Law, someone is guilty of murder if they know that their actions could lead to the killing of a person and reconcile themselves to that fact, and act anyway. Each case is adjudicated on its specific facts and evidence. Judge Masipa seems to have cleared Pistorius of this charge because she felt that, to be guilty of common-law murder, Pistorius needed to have foreseen that his actions would kill a specific person – Reeva Steenkamp. This is however wrong – one does not have to foresee that one specific person would be killed but one should foresee that a human being could die as a result of his actions. Does a reasonable person not foresee such result when shooting 4 times in a 1.4 by 1.14 metres toilet cubicle?

Many legal experts are of the opinion that the North Gauteng Judge made an “error in law” in not convicting Pistorius of murder and that the State has sufficient grounds to warrant an appeal. If the prosecution decides to go ahead with an appeal Gerrie Nel will have to ask Judge Masipa for Leave to Appeal which is permission to appeal. When Masipa considers whether or not to grant permission to appeal, the law states that she must ask herself whether there is a reasonable chance that another judge might disagree with her findings. If the prosecution brings an appeal on the interpretation and application of Dolus Eventualis it must convince the court that the decision in this case by Judge Masipa was indeed very wrong. New facts cannot be introduced, the prosecution must persuade the court on points of law only. The State will have to prove that Pistorius had ample time to think about the possibility of killing the deceased or an intruder for that matter and that he truly decided that this is what he was going to do, or consciously took the risk of this happening, knowing and accepting the possible consequences that might ensue.

Whether or not Judge Masipa was wrong in her adjudication she accepted Pistorius version because the prosecution did not prove the contrary beyond a reasonable doubt and failed to show the court on that standard that he consciously took the risk of killing somebody whether it was Reeva or someone else. Perhaps the prosecution will elaborate on this point in an appeal court. Mere possibilities or probabilities are not sufficient in our courts. Whether the prosecution or the judge has failed the criminal system is not yet clear. However the one fact that is indisputable is that the Media took a stance against the South African justice system which encouraged the public to doubt the system.  One should always be wary in having an opinion solely based on Medias’ versions of events.

Watching a trial without knowing the law is like watching a sports game without knowing the rules – entertaining but pointless.

Oscar Pistorius began a five-year jail sentence last week Tuesday. He is expected to be granted an early release. After 10 months, he can apply for correctional supervision after having served one sixth of his sentence. The State has 14 days to apply for Leave to Appeal.

Written by Audrey Berndt from BLV Attorneys, Johannesburg, the 28th of October 2014.