Director of Public Prosecutions, Gauteng v Pistorius

• Jurisdiction: South Africa
• Judge: Mpati P, Mhlantla JA, Leach JA, Majiedt JA and Baartman AJA
• Judgment Date: 03 December 2015
• Citation: 2016 (2) SA 317 (SCA)
• Docket Number: 96/2015 [2015] ZASCA 204
• Hearing Date: 03 November 2015
• Counsel: GC Nel (with A Johnson, DWM Broughton and JS Grant) for the appellant. B Roux SC (with S Jackson and R Adams) for the respondent.
• Court: Supreme Court of Appeal

Leach JA (Mpati P, Mhlantla JA, Majiedt JA and Baartman AJA concurring): G

[1] This case involves a human tragedy of Shakespearean proportions: a young man overcomes huge physical disabilities to reach Olympian heights as an athlete; in doing so he becomes an international celebrity; he meets a young woman of great natural beauty and a successful model; romance blossoms; and then, ironically on Valentine's Day, all is H destroyed when he takes her life. The issue before this court is whether in doing so he committed the crime of murder, the intentional killing of a human being, or the lesser offence of culpable homicide, the negligent killing of another.

[2] It is common cause that in the early hours of 14 February 2013 the I respondent, Mr Oscar Pistorius, shot and killed the 29-year-old Miss Reeva Steenkamp at his home in a secured complex known as Silver Woods Country Estate in the district of Pretoria. Pursuant to this, he was tried in the Gauteng Division of the High Court, Pretoria, on several charges, including one of the murder of Miss Steenkamp. Throughout the proceedings in the trial court, the respondent was referred to as 'the J

Leach JA (Mpati P, Mhlantla JA, Majiedt JA and Baartman AJA concurring)

A accused' and, for convenience, I intend to do so as well. I trust that those near and dear to her will forgive me if I refer to Miss Steenkamp at times by her given name of Reeva, although I shall endeavour to do so only where it is necessary to emphasise her identity. I shall otherwise refer to her simply as 'the deceased'.

B [3] The proceedings in the trial court were attended by unprecedented publicity. As far as I am aware, for the first time in the history of this country the trial was covered on live television (as was the appeal in this court). Although I did not follow the proceedings closely, it was impossible not to learn that, although it was common cause that the C accused had shot and killed the deceased, the trial court had found him not guilty of her murder but guilty of culpable homicide. Contending that the trial court erred on certain legal issues, the Director of Public Prosecutions, with leave of the trial court, now appeals to this court on questions of law reserved, arguing that the appropriate conviction would be one of murder.

D [4] It is necessary at the outset to clear a technical issue out of the way. The appeal to this court relates solely to count 1 of the indictment, namely the alleged murder of the deceased. The accused was not charged in the alternative with the lesser offence of culpable homicide. It was unnecessary for the state to do so as s 258 of the E Criminal Procedure Act 51 of 1977 (the CPA) provides that if the evidence led on a charge of murder does not prove that offence but the offence of culpable homicide (or numerous other offences unnecessary to mention for present purposes) 'the accused may be found guilty of the offences so proved'. That is what happened in the present case. The trial court held F that the state had not proved that the accused was guilty of the murder but had shown that he was guilty of culpable homicide. Relying on s 258 it accordingly found him guilty of the latter offence.

[5] The appeal to this court relating to this conviction is brought in respect of questions of law reserved under s 319 of the CPA. That section G provides:

'(1) If any question of law arises on the trial in a superior court of any person for any offence, that court may of its own motion or at the request either of the prosecutor or the accused reserve that question for the consideration of the Appellate Division, and thereupon the first-mentioned H court shall state the question reserved and shall direct that it be specially entered in the record and that a copy thereof be transmitted to the registrar of the Appellate Division.

(2) The grounds upon which any objection to an indictment is taken shall, for the purposes of this section, be deemed to be questions of law.' [1]

I [6] Section 322 of the CPA prescribes the powers that may be exercised by a court of appeal hearing an appeal relating to any question of law reserved under s 319. I shall deal with these provisions in more detail in

Leach JA (Mpati P, Mhlantla JA, Majiedt JA and Baartman AJA concurring)

due course, but it suffices to mention at this stage that s 322(4) A provides that in an appeal by the prosecutor where a question of law has been reserved in the case of an acquittal, 'and the court of appeal has given a decision in favour of the prosecutor, the court of appeal may order that such of the steps referred to in s 324 be taken as the court may direct'. This corresponds with the provisions of s 369 of the CPA's predecessor, B Act 56 of 1955, which in turn reflected the wording of its predecessor, s 374 of Act 31 of 1917. In Solomons, [2] following the decision in Gani, [3] this court held that the effect of s 369 of the 1955 Act was that the state can only have a question of law reserved should there be an acquittal of the accused.

[7] After Solomons and Gani this court held that an acquittal envisaged C by s 322(4) had to be a total acquittal, and that did not include a case in which a competent verdict had been entered in place of the charge upon which the accused had been arraigned in the charge-sheet. Thus in Seekoei, [4] where an accused had been charged with housebreaking with D intent to rob and robbery with aggravating circumstances, but convicted on the competent verdict of the lesser offence of housebreaking with intent to steal and theft with aggravating circumstances, it was held there had not been an 'acquittal' as intended by s 322(4). The court went on to hold that in consequence of there having been no acquittal, the trial court had impermissibly reserved a question of law for determination under s 319. E

[8] At first blush this decision seems to provide an obstacle to the state's appeal on points of law in the present matter as, although the accused was not convicted of the murder with which he had been charged, he was F convicted on the competent verdict of culpable homicide — and thus there was not a 'total acquittal' on the murder charge making it permissible for the trial court to reserve points of law as it did. However, the matter does not end there. As was argued by the state, the accused could quite easily have been charged with culpable homicide as an G alternative charge to that of murder. If that had been done, and the accused found guilty of culpable homicide, the court would have been obliged to acquit him on the murder charge, and in that event the ratio of the decision in Seekoei would not operate to bar an appeal on a point of law in respect of that charge.

[9] The decision in Seekoei has been a matter of controversy, and doubt H has been expressed in this court on the correctness of the reasoning. [5] It is after all somewhat artificial to regard an accused found guilty of the lesser offence of culpable homicide not to have been acquitted of the more serious charge of murder. But any dispute on this has been resolved

Leach JA (Mpati P, Mhlantla JA, Majiedt JA and Baartman AJA concurring)

A by the decision of the Constitutional Court in Basson. [6] In that matter, after considering the legislative history of s 319(2) of the CPA, the court held that there is 'nothing in this language to suggest that the state may only request the reservation of questions directed at the conviction or acquittal of the accused'. [7] In the light of this, counsel for the accused B accepted that the limitation upon the state's right to appeal on a point of law as prescribed in Seekoei could no longer be regarded as good law and that there could be no objection to the appeal proceeding in respect of the points of law reserved in the trial court, notwithstanding the conviction of the accused on the competent verdict of culpable homicide. C This concession was correctly made.

[10] In the light of this I turn to the issues raised in the appeal. In order to do so it is necessary to paint the factual backdrop to the points of law debated before us.

[11] The accused was born with deformed legs, the fibula on each side D having been missing. Consequently, before his first birthday, both of his legs were surgically amputated below the knee and, since then, he has had to rely on prosthetics. Despite such a severe physical handicap, he made his way bravely into the world and, at school, although he described himself in evidence as having been 'never really much of an academic', he participated in various sports. It was during the course of E rehabilitation from a knee injury sustained playing rugby that, in early 2004, he started training with a biokineticist at the University of Pretoria who encouraged him to participate in a disabled athletics meeting. He did and the rest, as they say, is history. It is unnecessary to detail the accused's spectacular athletics career which followed. Suffice it to say F that he was awarded a sports bursary by the University of Pretoria and competed at an international level in both disabled and able-bodied athletics events. He won numerous international medals, including gold medals at the Paralympics. Having persuaded the International Athletics Federation that he enjoyed no advantage by using prosthetic legs, the G accused represented South Africa in both the Olympic and the Paralympic Games of 2012. His athletics achievements not only brought him international fame but also into contact with charities, and for his humanitarian work in the world of prosthetics and prosthetic developments he was awarded an honorary doctorate from the University of Strathclyde in Glasgow.

H [12] The accused met the deceased on 4 November 2012 when they were separately invited by a mutual friend to lunch at a motorcar...