Oscar Pistorius, the South African sports icon and murder accused who shot and killed his girlfriend Reeva Steenkamp in the early hours of Valentine’s Day last year, has been found guilty of culpable homicide and a lesser charge of reckless handling of a firearm in a public restaurant. Pistorius has been led down to holding cells where he is awaiting a new bail decision.
After 44 days of court proceedings, South African judge Thokozile Matilda Masipa recounted her final verdict of the four counts brought against Pistorius: The charge of murder, for the killing of Steenkamp, two charges of reckless mishandling of a firearm in public, and illegal possession of ammunition found at the paralympian’s home in Pretoria.
A life sentence was ruled out on Thursday when the judge cleared Pistorius of the most serious counts of murder brought against him—namely premeditated murder and a lesser of charge of common murder—on the basis that the prosecution, led by prominent South African advocate Gerrie Nel, had failed to prove beyond reasonable doubt that Pistorius had intentionally shot Steenkamp, or that he knowingly foresaw the possibility that his actions would result in her death.
Masipa added that the evidence presented by the state was almost exclusively circumstantial and that, despite being an unimpressive witness, Pistorius did in fact convey a version of events that could be reasonably, possibly true, and that the objective phone records that formed the foundation of the chronology of events substantiated his version.
Pistorius also escaped two lesser charges relating to the Firearms Control Act, having been acquitted of recklessly handling a firearm when he allegedly shot his gun through a sunroof on a car journey with a friend and then-girlfriend Sam Taylor (count 2) and for illegally possessing 38 rounds of ammunition for which he had no licence of requisite documentation (count 4).
On the evidence:
Most of the trial’s proceedings have been based on four categories of evidence: circumstantial; forensic and facts in the form of phone logs and other records; character evidence (which is inadmissible under South African law); and the only first-hand account of what actually happened, which is Pistorius’s own testimony.
Masipa today stated that the evidence led by the state was purely circumstantial and that Pistorius, notwithstanding the fact that he was an unimpressive witness, presented the court with a testimony that could reasonably and possibly have been true. “In criminal law [in South Africa], that is all that is required for an acquittal, as the onus of proof of guilt beyond reasonable doubt rests sol on the state,” she announced.
Masipa ruled out almost all of the character evidence brought forth, most of which emerged concomitantly through testimony relating to the firearm contravention charges, stating that she was “of the view that some witnesses failed to separate what they knew personally to what they had heard from other people, or gathered from the media.”
Likewise, with the recital of the whatsapp text message exchange between Steenkamp and Pistorius, she dismissed any inference relating to the nature of Steenkamp’s and Pistorius’ relationship, adding that “normal relationships are dynamic and unpredictable most of the time. None of this can assist the court to determine whether the accused had the requisite intent to kill the deceased.”
Controversial questions that had emerged throughout the trial, like why Steenkamp took her phone into the toilet, and why there was still partially-digested food matter in her stomach despite the claim that they had eaten dinner at 7 p.m., were also dismissed on the basis that “[picking] a reason would be to delve into the realm of speculation.”
Masipa also disregarded testimony from the neighbours of Silverwood Estate where the shooting occurred, arguing that it was “unwise to rely on witnesses…as human beings are infallible and depend on memories that fail over time.”
What is so crucial about this dismissal, according to South African legal expert Mannie Witz, who spoke to News24 on Wednesday, is that the case of premeditated murder hinged “almost entirely on the evidence of a single state witness, Estelle van der Merwe,” who testified that she had heard arguing between a man and a woman in the early hours of the morning. Masipa repudiated Van der Merwe’s evidence based on the fact that Van der Merwe couldn’t even make out the language and actual content of what was being said, and that witnesses who were within closer proximity had not heard arguing despite hearing the sound of shooting.
The judge therefore opted to weigh her analysis heavily on the chronology of events formed around common cause facts like phone logs and emergency services records, which, in her own words “tipped the scale in favor of the defense.”
From that timeline, in conjunction with forensic detailing of Steenkamp’s death (specifically the fact that she would not have been able to scream at length given the immediacy with which the bullets had incapacitated her), Masipa deduced that it was indeed Pistorius that the neighbours heard screaming, and that the second set of bangs was the sound of Pistorius banging down the door with the now infamous cricket bat.
On Pistorius’s testimony:
To the judge’s mind (and to many others’), Pistorius was a poor witness.
Describing him as both evasive and contradictory at times, the judge lambasted the Paralympian for altering his demeanour under cross-examination, failing to listen and respond to questions properly—thus suggesting that he was more preoccupied with the consequences of his answers—and blaming his legal team for any oversights or contradictions that were made.
A mid-trial shift in Pistorius’ story (you’ll remember that he changed his version from putative self-defense to involuntary defense while on the witness stand) may very well have dealt a blow to the defense, but only marginally. While Masipa didn’t buy into the idea that Pistorius had shot without thinking (how could someone who wasn’t thinking make judgment calls in that moment, like Pistorius suggested he did when he told the court he would have “aimed higher” if he “wanted to kill”?), she did warn the court that one or two false statements did not necessarily justify jumping to extreme conclusions about whether or not the accused was guilty.
There were also moments where the judge did seem to lean in favor of Pistorius, stating that there were unassailable facts that supported some of his thought-processes at the time, making them not entirely unreasonable (for example, the fact that the window was open and a perceived intruder might well have been able to gain access).
Why murder is off the table:
“He clearly wanted to use a firearm and the only way he could use it was to shoot. But intention to shoot does not necessarily mean intention to kill,” Masipa told the court.
At the beginning of the day there were four possible outcomes on the main charges brought forth: premeditated murder, murder on the basis of dolus eventualis, culpable homicide, and acquittal.
As most of those who have been following this case know, everything boils down to intent at this point, something that can only be determined subjectively by the judge. It’s no shock to many legal analysts that premeditated murder was dismissed early on, because the general consensus was that the state didn’t have a strong enough case to prove beyond reasonable doubt, and that almost all the evidence presented for premeditation was circumstantial.
But the premise of dolus eventualis, which applies when an accused objectively foresees the possibility of his act resulting in death and proceeds regardless of the consequences, was where many believed that Pistorius may get himself into trouble. Instead, the judge could not find reason to suggest that Pistorius actively considered that his actions could result in Steenkamp’s death, and thus dismissed the charges—a decision that left many South African legal practitioners stunned.
“There is no doubt that decision is going to be very controversial,” South African judge Chris Greenland noted on a televised panel on Thursday. “It’s problematic as to how that was resolved, but the big ticket is that Oscar has, in effect, gotten away from murder charges.”
The reasoning behind the judge’s decision was that Pistorius’ distraught behaviour following the shooting, as witnessed by estate manager Johan Stander, Dr Johan Stipp and others who were called to the house following the incident, was indicative of someone who was genuinely traumatized by what had just occurred, and that his reaction was clearly genuine. However, this law appears to have been applied based on the assumption that Pistorius would have believed that it was Steenkamp that was behind the door, and not sufficiently explored under the hypothesis that any person was behind that door.
“The conduct of the accused shortly after the incident is inconsistent with someone who had intention to commit murder. He promptly shouted for help, called 911, called security, prayed to God, was seen trying to resuscitate the victim, and was visibly distraught,” she continued. “From the above, it cannot be said that Oscar Pistorius did not entertain a genuine belief that he was under threat.”
Explains Pierre de Vos, a prominent South African legal professor and blogger:
“Although this might show that he did not subjectively foresee that he would kill Steenkamp, it says nothing about subjectively foreseeing that he would kill whom he had thought was an intruder hiding behind the door. Given all the evidence presented in court about Pistorius’ knowledge of guns and what the bullets he used would do to a person, it is unlikely in the extreme that Pistorius did not foresee that the person behind the door (who he might have thought was an intruder) would be killed. To my mind the judge did not engage with this issue in sufficient detail to explain convincingly why she found Pistorius did not have the dolus eventualis to kill an unknown person behind the toilet door.”
“What a lot of people are struggling with is how shooting four times into a tiny space could not constitute intention to kill, in the judge’s view,” added journalist Rebecca Davis in a tweet following the verdict.
On what’s next:
The resulting culpable homicide charge was not entirely surprising to those who had been paying close attention to the verdict announcement yesterday, given that Masipa hinted heavily towards negligence in her summary.
She stated that Pistorius “acted too hastily” and displayed “excessive use of force,” and that any vulnerability felt as a result of his disability did not justify unnecessary paranoid behaviour. Similarly, his explanation that he had previously been a victim of crime (and that his mother, too, slept with a gun under her pillow) was deemed by Masipa as “just an explanation” and “[did] not excuse his conduct.”
“Many people have experienced crime in this country, directly and indirectly, at some time or another,” she continued. “Many have been victims of crime but they have not resorted to sleeping with firearms under their pillows.”
She added that the excuse of vulnerability was not unique as “millions in [South Africa] can fit into that category” citing children, women and the elderly as prime examples who may suffer the same anxiety but would not act as Pistorius did in this particular instance, an instance in which, according to Masipa, Pistorius was not in immediate danger, and as such he had sufficient time “to reflect, to think, and to conduct himself reasonably.”
“On the facts of this case. I am not persuaded that a reasonable persona with the accused disabilities under same circumstances would have fired four shots into the toilet cubicle… a reasonable person would have foreseen the possibility that whoever was behind that door might be killed, and would have taken steps to avoid that. Pistorius failed to do so.”
The details of the sentence have yet to be announced, although this could take weeks. Culpable homicide (equivalent to manslaughter in the U.S.), carries no minimum sentence but could see the judge deal Pistorius anything from a suspended sentence to up to 15 years in prison, depending on her discretion.