Finally we heard what justice sounds like!
Judge Leach gave a clear, measured and convincing argument, reflecting the unanimous decision of the SCA, identifying serious errors Masipa made, dismissing her inappropriate decision and sentence and confirming that Pistorius is guilty of murder.
It was very gratifying that the distinguished justices identified precisely the errors I did in my columns and refuted Masipa’s romantic and mistaken decisions.
A return to jail?
The statement in the media that his sentence “had been upgraded” sounded more like someone being lucky enough to be bumped up from Economy to Business Class.
When the Prison authorities took the unprecedented step of inviting the media to visit the prison and inspect the cell Oscar had been in, it was quite clear to me that they expected the appeal to lead to a murder sentence and a return to jail.
Read: What it's like in a South African prison
Important clarifications were made in the court, and the decisions of the judges are not only relevant to this case, but can now be applied across the board.
Firstly, it seems to have been agreed (though I’m surprised this was not stated more clearly) that the State was fully entitled to appeal, and that the deeply faulty Seekoei precedent is now rejected. There should now be no artificial limitations on the freedom of either side in a case to appeal against a faulty decision.
Apart from her faulty and illogical application of basic principles of law to the case, Masipa in crucial matters contradicted herself and ignored the obvious implications of her own findings. For instance, she found that Oscar was a very poor witness; he was contradictory and gave so many different stories that “we don’t know what his version is”.
It made no sense for Masipa to recognise this, but then arbitrarily select some bits of his story to believe – and base her verdict on that. If someone is an unreliable witness, you cannot rely on anything he says. His testimony was described as “vacillating and untruthful” if I heard Judge Leach correctly.
No proof of remorse
The case, like so many, was seriously contaminated by false assumptions about psychology. The fact that Oscar produced, and stuck to, a very simple excuse soon after the events, is no proof that such a story is sincere or truthful. And his howling grief, both in the house soon after Reeva died and later in court, are not signs of, let alone proof of, remorse. Judges should demand competent expert evidence on such interpretations, rather than making decisions based on their own emotional responses.
Read: Brain scans in court?
Satisfyingly and valuably, the SCA confirmed Masipa applied the incorrect test to the matter of dolus, peculiarly assuming that it could not have been murder unless it could be proven that he was certain it was Reeva he was shooting. As I pointed out months ago, it is simply not illegal to kill a Reeva – killing any person is illegal, whether or not you know who your victim is. Running with Masipa’s odd interpretation, you might argue that a terrorist planting a bomb is not a murderer because he’s not aware of the identities of his victims. The court therefore found that Masipa had “misdirected herself” – and the State won its main point of appeal.
On circumstantial evidence the State also won an important point. A court is entitled to draw logical conclusions on the basis of such evidence, but must take into account all established circumstantial evidence, not just cherry pick the bits conveniently fitting some preconceived idea. None of the evidence can be ignored or go unmentioned. For instance, Masipa ignored vital evidence from the excellent State witness Masinga, despite having specifically praised it as especially useful.
There’s a natural reluctance on the part of judges to avoid sharply criticizing each other, so though the SCA found vital errors in the way Judge Masipa applied the law in this case, they emphasised she should not be blamed for this, although these were really serious errors in applying the law, not just trivial oversights.
A different judge?
Having, most sensibly, struck down her erroneous finding of culpable homicide, and substituted the sentence of murder, the subsequent question was what should be done next. Everyone agreed that though they could have ordered a fresh trial, this would be undesirable and impractical for many good reasons.
Though the SCA would have been entitled to decide on an appropriate sentence themselves, they chose to refer the matter back to the original court for a sentencing hearing. Either side might want to lead further evidence in aggravation or mitigation of sentence, i.e. arguing for a more severe or more lenient sentence than the 15 years that standard guidelines would propose.
Read: Murder and torture: who can do this?
Though the matter will return to the same level of Court, and potentially though not compulsorily, to Masipa, it would surely be very wise for her to find herself otherwise committed, and request the sentencing to be presided over by a different judge.
We can expect Roux to be back, arguing dangerously that the mere fact of Oscar’s disability, or his anxiety disorder, should lead to great leniency. If this argument is accepted, then every murderer can be expected to point to their terrible anxiety and any disability they can claim as grounds for soft sentencing. Despite Roux’s repetitive insistence that this is so, there is no expert evidence that people with disability, let alone Oscar’s specific variety of disability, or with anxiety disorder, are any more likely to commit crimes or less liable or responsible if they do so.
Similarly, the Courts need to rid themselves of the illogical and unjustifiable use of irrelevant factors as though they justify mitigation and reduction of sentence. Youthfulness should be recognised as irrelevant. A first offence may be relevant for a parking misdemeanour, not for murder. And disability and especially anxiety are laughably irrelevant in such decisions.
There are so many remaining unanswered questions. For instance, the judge referred to Oscar saying that he didn’t fire a warning shot because he feared it might ricochet and hurt himself. How, then, was he so sure that none of the four shots he did fire would not do this?
Read: Why boys play with guns
The sentencing court should resolutely refuse to accept any of Roux’s assertions as though they were evidence, and refuse to hear any defence witnesses on such issues unless they are recognised experts in their relevant fields, i.e. psychologists, psychiatrists and maybe orthopaedic surgeons. Not geologists, sports medicine enthusiasts, or probation officers.
Though Oscar has been left to remain at his uncle’s luxury home on correctional supervision, this is not an option for someone convicted of murder, so he ought to be returned to prison pending the outcome of the sentencing hearing. If not, he will be receiving a unique privilege, and this issue will need to be examined. At the very least he should have to apply for bail.
Oscar appeal: Roux crumbled and knows it
The state of ‘expert’ evidence in SA courts
Is Judge Masipa letting Oscar get away with murder?
Professor MA Simpson is Health24's CyberShrink. A South African psychiatrist, he qualified in medicine and in psychiatry in Britain. He has been a senior academic, researcher, and Professor in several countries. Read more of his columns.