Director of Public Prosecutions, Gauteng v Pistorius

• Jurisdiction: South Africa
• Citation: 2016 (1) SACR 431 (SCA)

Director of Public Prosecutions, Gauteng v Pistorius
2016 (1) SACR 431 (SCA)

2016 (1) SACR p431

Citation	2016 (1) SACR 431 (SCA)
Case No	96/2015; [2015] ZASCA 204
Court	Supreme Court of Appeal
Judge	Mpati P, Mhlantla JA, Leach JA, Majiedt JA and Baartman AJA
Heard	November 3, 2015
Judgment	December 3, 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.

Flynote : Sleutelwoorde

Murder — Mens rea — Intention to kill — Dolus eventualis — Whether present — Accused firing four shots at person behind toilet door.

Murder — Mens rea — Intention to kill — Exclusion of — Putative private defence — Whether established. C

Appeal — In what cases — On questions of law reserved — Prerequisite for reservation of questions of law that there be acquittal — Conviction on competent verdict to be regarded as acquittal on main count — Criminal Procedure Act 51 of 1977, s 319. D

Headnote : Kopnota

Mr Pistorius, believing an intruder to be behind the closed door of his home's toilet, shot and killed the individual. It turned out to be Ms S.

The state later charged Pistorius with murder, but the High Court convicted him of the competent verdict of culpable homicide.

This caused the state to appeal to the Supreme Court of Appeal on questions of E law reserved in terms of s 319 of the Criminal Procedure Act 51 of 1977. It asserted that Pistorius ought to have been convicted of murder.

The issues were:

(1)

Whether there had been an acquittal, a prerequisite for the reserving of a question of law. Held, that there had been: conviction on a competent verdict was to be regarded as acquittal on the main count. (Paragraphs [6] and [8]–[9] at 434i–435b and 435f–436b.) F

(2)

Whether the High Court had correctly applied the principles of dolus eventualis. Held, that it had not: it had taken an objective approach to dolus; had used the test for dolus directus to establish if there had been dolus eventualis; and had assumed a perpetrator had to know the identity of his victim in order to be found to possess dolus eventualis. (Paragraphs [20] and [27]–[32] at 439e–f and 441e–444b.) G

2016 (1) SACR p432

(3)

A Whether the High Court correctly applied the principles relating to circumstantial evidence. Held, that it had erred. A court had to take into account all of the circumstantial evidence in coming to a conclusion of fact. Here the High Court had failed to take account of certain forensic evidence in coming to its conclusion on the existence of dolus eventualis. (Paragraphs [20], [34] and [40]–[41] at 439e–f, 444d–e and 446h/i–447d.)

(4)

B What the interests of justice required the Supreme Court of Appeal to do. Held, that they required it to consider whether the High Court had erred on dolus eventualis; and if it had, to set aside the conviction of culpable homicide. (Paragraphs [43] and [46] at 447f–j and 448f.)

(5)

Whether Pistorius had acted with dolus eventualis. Held, that he had. Given the nature of his weapon and ammunition, and the small size of the toilet cubicle at which he aimed, he must have foreseen the possibility that in firing C he might kill the person inside. That he had continued and fired four shots, suggested he must have reconciled himself to this possibility. (Paragraphs [47] and [50]–[51] at 448g–449b and 449g–450a.)

(6)

Whether Pistorius had established that he had acted in putative private defence. Held, that he had not: he had provided no factual basis for his purported belief that the person behind the door was about to attack him. D (Paragraphs [52] and [54] at 450b–f and 451c–d.)

Conviction of culpable homicide and sentence therefor set aside, and replaced with a conviction of murder. Matter referred to trial court for sentence. (Paragraphs [55] – [56] and [58] at 451e–h and 452c–d.)

Cases cited

Southern Africa E

Magmoed v Janse van Rensburg and Others 1993 (1) SACR 67 (A) (1993 (1) SA 777): referred to

Minister of Safety and Security and Others v Craig and Others NNO 2011 (1) SACR 469 (SCA): F referred to

Nkosi v The State [2015] ZASCA 125 (SCA 20727/14): followed

R v Dhlumayo and Another 1948 (2) SA 677 (A): dictum at 705 applied

R v Gani and Others 1957 (2) SA 212 (A): considered

R v Solomons 1959 (2) SA 352 (A): considered

S v Basson 2004 (1) SACR 285 (CC) (2005 (1) SA 171; 2004 (6) BCLR 620; G [2004] ZACC 13): referred to

S v Basson 2007 (1) SACR 566 (CC) (2007 (3) SA 582; 2005 (12) BCLR 1192; [2005] ZACC 10): followed

S v Bogaards 2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): followed

S v Crossberg 2008 (2) SACR 317 (SCA) ([2008] 3 All SA 329): referred to

S v De Oliveira 1993 (2) SACR 59 (A): dictum at 63i applied H

S v Dlodlo 1966 (2) SA 401 (A): dictum at 405G – H applied

S v Humphreys 2013 (2) SACR 1 (SCA) (2015 (1) SA 491; [2013] ZASCA 20): dictum in para [13] applied

S v Libazi and Another 2010 (2) SACR 233 (SCA) ([2010] ZASCA 91): dictum in para [17] applied

S v Mavhungu 1981 (1) SA 56 (A): referred to I

S v Mdlongwa 2010 (2) SACR 419 (SCA): referred to

S v Mene 1978 (1) SA 832 (A): referred to

S v Nabolisa 2013 (2) SACR 221 (CC): followed

S v Nhlapo and Another 1981 (2) SA 744 (A): followed

S v Seekoei 1982 (3) SA 97 (A): not followed

S v Sigwahla 1967 (4) SA 566 (A): dictum at 570C – E applied J

2016 (1) SACR p433

S v Van der Meyden 1999 (1) SACR 447 (W) (1999 (2) SA 79): dictum A at 449j – 450b applied.

Canada

Harper v R [1982] 1 SCR 2 ((1982) 65 CCC (2d) 193; 133 DLR (3d) 546; 40 NR 255): followed

R v B (G) (1990) 56 CCC (3d) 181 (SCC) ((1990) 2 SCR 57): followed B

R v Roman (1987) 38 CCC (Nfld CA) (3d) 385 (66 Nfld & PEIR 319; 204 APR 319): followed.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 319: see Juta's Statutes of South Africa 2014/15 vol 1 at 2-419. C

Case Information

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.

An appeal from the Gauteng Division, Pretoria (Masipa J, with two assessors). D

Order

1.

The first two questions of law reserved are answered in favour of the Director of Public Prosecutions.

2.

The accused's conviction and sentence on count 1 are set aside and E replaced with the following:

'Guilty of murder with the accused having had criminal intent in the form of dolus eventualis.'

3.

The matter is referred back to the trial court to consider an appropriate sentence afresh in the light of the comments in this judgment. F

Judgment

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

[1] This case involves a human tragedy of Shakespearean proportions: a G 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 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 H 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 respondent, Mr Oscar Pistorius, shot and killed the 29-year-old I 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 accused' and, for convenience, I intend to do so as well. I trust that those J

2016 (1) SACR p434

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

A 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'.

[3] The proceedings in the trial court were attended by unprecedented B 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 accused had shot and killed the deceased, the trial court had found him C 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 Criminal Procedure Act 51 of 1977 (the CPA) provides that if the evidence led on E 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 that the state had not proved that the accused was guilty of the murder F but had shown that he was guilty of culpable homicide. Relying on s 258 it accordingly found him guilty of...