Constitutional Hill

Oscar Pistorius and the granting of bail

The circumstances under which a court may grant bail to an accused person charged with a heinous crime are widely misunderstood in South Africa. Although the rules around the granting of bail are relative strict if compared to many other constitutional democracies, a court is not supposed to withhold bail merely in order to punish the accused or to demonstrate disapproval of alleged crime committed by the bail applicant. To do so would amount to a form of detention without trial, which was widely used during in the apartheid era against political opponents of the National Party regime. I fear that many South Africans considering the merits of granting bail to murder accused Oscar Pistorius will lose sight of this important fact.

Section 35 of the Constitution states that every person arrested for allegedly committing a crime has the right to be brought to court (usually within 48 hours after arrest) and “to be released from detention if the interests of justice permit”. As the Constitutional Court explained in the 1999 case of S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat, the question of whether it would be in the interest of justice to grant bail will focus “primarily on securing the attendance of the accused at trial and on preventing the accused from interfering with the proper investigation and prosecution of the case”. The Court then continued:

The broad policy considerations contemplated by the “interests of justice” test … can legitimately include the risk that the detainee will endanger a particular individual or the public at large. Less obviously, but nonetheless constitutionally acceptably, a risk that the detainee will commit a fairly serious offence can be taken into account. The important proviso throughout is that there has to be a likelihood, i.e. a probability, that such risk will materialise. A possibility or suspicion will not suffice. At the same time, a finding that there is indeed such a likelihood is no more than a factor, to be weighed with all others, in deciding what the interests of justice are.

In a bail application the enquiry is not primarily concerned with the question of the guilt of the accused. The focus at the bail stage is to decide whether the interest of justice permits the release of the accused pending trial. Bail will usually be denied to protect the investigation and prosecution of the case and to protect society against the possible future life threatening criminal acts of an accused.

The bail provisions contained in section 60 of the Criminal Procedure Act must be interpreted and applied with reference to these human rights based policy considerations. It is not clear that our courts always make decisions on bail within the framework of these human rights centred policy considerations — especially in cases where an accused is poor or does not have legal representation.

Section 60 of the Criminal Procedure Act states that a court can normally refuse bail “in the interest of justice” only where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person; will evade his or her trial; will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or if, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.

But section 60(11) of the Criminal Procedure Act provides for an exception to this general rule. It states that where an accused is charged with planned or premeditated murder; with the killing of a police officer; with rape related offences; or with robbery with agravating circumstances (so called schedule 6 offences) the court must deny bail unless the accused can prove to the court that “exceptional circumstances exist which in the interests of justice permit his or her release”.  In such cases the National Director of Public Prosecutions (NDPP) can issue a written confirmation that he or she intends charging the accused with one of these schedule 6 offences, which the court considering bail will take as prima facie proof of the charge to be brought against the accused by the Prosecuting Authority.

The bail hearing of Oscar Pistorius is based on this section, but because the NDPP did not issued a note confirming the schedule 6 charge, the court must first decide whether there is a significant likelihood that Pistorius will indeed be charged with “premeditated murder”. This concept of “premeditated murder” is not a legal category found in our general criminal law principles, as no distinction is made at the trial stage of the proceedings between premeditated murder and other forms of murder. The concept is relevant for considering bail and, again, after conviction, can play a role in determining the sentence of the convicted murderer.

Premeditated or planned murder was described as follows by the Cape High Court in the case of S v Raath:

Clearly the concept suggests a deliberate weighing-up of the proposed criminal conduct as opposed to the commission of the crime on the spur of the moment or in unexpected circumstances. There is, however, a broad continuum between the two poles of a murder committed in the heat of the moment and one which had been conceived and planned over months or even years before its execution… Only an examination of all the circumstances surrounding any particular murder, including not least the accused’s state of mind, will allow one to arrive at the conclusion as to whether a particular murder is ‘planned or premeditated’. In such an evaluation the period of time between the accused forming the intent to commit the murder and carrying out this intention is obviously of cardinal importance…

This means that a court is not supposed to apply section 60(11) to a bail hearing where in the absence of a certificate from the NDPP where an accused person is suspected of killing someone else “on the spur of the moment”. Something more is required.

When considering the constitutionality of this section of the Act in the Dlamini case, the Constitutional Court pointed out that the section makes it more difficult but not impossible for a court to grant bail to an accused who will be charged with premeditated murder. The section places “a formal onus” on the accused. This means the accused must actually produce evidence of “exceptional circumstances” and cannot merely rely on the alleged weaknesses in the evidence made by the state during the bail hearing.

However, the Constitutional Court, in finding that this provision was not unconstitutional, watered down its application by watering down the meaning of “exceptional circumstances”. The onus still rests on the accused. But the Court said that the subsection does not require the accused to provide evidence of circumstances “above and beyond” those factors listed above: factors such as whether the accused will threaten the safety of the public; will pose a flight risk or will pose a risk to the investigation by, say, interfering with witnesses.

As the Constitutional Court explained in the Dlamini case, an accused charged with a schedule 6 offence could establish that “exceptional circumstances” exist to grant bail by showing that “there are exceptional circumstances relating to the his or her emotional condition that render it in the interests of justice that release on bail be ordered notwithstanding the gravity of the case”. For example, continued the Court:

an otherwise dependable man charged with consensual sexual intercourse with a fifteen year old girl, and who has a minor previous conviction dating back many years, would technically fall within the ambit of sub-s (11)(a). Yet a prudent judicial officer could find those circumstances sufficiently exceptional to warrant bail provided there were no other factors adverse to the grant.

Applying these factors to a question of whether bail should be granted to an accused charged with premeditated murder, the question is not whether – based on the arguments presented by the state and the counter arguments presented by the legal representative of the accused – a court might have doubt about the innocence of the accused. The probability that Pistorius is either guilty or innocent is therefore not of primary importance in the considering whether he should be granted bail.

What is of primary importance is whether his legal representative had provided evidence of exceptional circumstances that would demonstrate to the court that Pistorius had not been involved in similar crimes in the past, that he does not pose a flight risk or a threat to other members of the public and that he will not interfere with the investigation. If they had shown this, Pistorius should be granted bail.

As is often the case when decisions about bail are made, the public (and it must be said, sometimes also the presiding officer) conflate their abhorrence of the alleged criminal act or their suspicions about whether the accused might eventually be found guilty of the crime, on the one hand, with the question of whether exceptional circumstances exist to grant bail, on the other. They then insist that bail should have been denied. This is often in conflict with the human rights based interpretation of the relevant section of the Criminal Procedure Act that was provided by the Constitutional Court.

I know this is not a popular point to make. I am also aware that some people might wrongly believe that in pointing this out, I am demonstrating an insufficiently abhorrence of the crime that Pistorius is being charged with. But I would invoke the words of Justice Arthur Chaskalson in S v Makwanyane to answer this conceptually muddled charge:

The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

  • http://Nykmiyen.wordpress.com Nyk

    I honestly enjoyex this article and it has broaden my understanding of the bail process.

  • http://www.ozoneblue.co.za/ Ozoneblue

    The Heart of Darkness – Nkandla, Tarzan, evil white people, corruption, a dead secondhand car salesman and that cannibalistic polygamous Zulu emperor. JZ. regular seasonal blockbusters and now……

    Days of our Lives – Episode two.

    …..

  • Ash

    Excellent explanation of the substantive requirements for bail in SA. Very informative, thanx Prof!

  • Singh

    Oscar Pistorius is not someone who “cannot protect their rights adequately through the democratic process” or “social outcasts and marginalised people of our society”.

    He is the opposite of Justice Chaskalson’s intended target deserving of constitutional protection.

    This is a privileged white person, who overcome physical disabilities to earn R5,6m per annum. He can afford the best legal minds, pathologist and even an imported public relations expert.

    Leaving aside his ability to mount a sophisticated defence and PR campaign, the evidence not of the crime of murder itself but that he had a 9mm pistol under his bed and the ease with which he resorted to discharging at least four rounds should inform a reasonable person that Oscar Pistorius was and is a paranoid and mentally unstable person. He has this weapon (and others) whilst living in a R4m house located in a secure estate protected by armed security.

    [The fact that he had a 9mm pistol under his bed was stated in his affidavit today. In addition press reports indicate that he had access to a machine gun and cricket bat as well]

    Releasing him on bail would allow for a probability that he would pose a danger to society, himself and also interfere with the judicial process; which should be sacrosanct. It is thus not in the “interests of justice” to release him on bail.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Singh
    February 19, 2013 at 23:41 pm

    “This is a privileged white person, who overcome physical disabilities to earn R5,6m per annum.”

    But he did overcome didn’t he.

    Because he refused to sit back and claim victimhood. A man born without legs, running in a Olympic event. That must piss many advocates for pathetic “poor victimised us” mentality off.

    You go do that, claim a spot in the Olympics. I dare you and report back here just how easy that was.

  • http://www.ozoneblue.co.za/ Ozoneblue

    “but that he had a 9mm pistol under his bed and the ease with which he resorted to discharging at least four rounds”

    That all sound perfectly rational to me.

    Given a country where 50 people are brutally murdered if not tortured to death every day. In fact my philosophy [given I could get a license for a gun] if ever I did find someone breaking into my house I empty a canister or two first and ask questions later.

  • Gwebecimele

    In SA, sometimes rapists are released on bail and they rape again while on bail? What are the consequences for the courts/judges when this happens? Oh yes, just sue the state. Some rapists are given lesser sentences because the were gentle during the rape.
    Who is weaker here? Accused or victim, family ,potential victims. Will he come out and break the legs of the other guy or deal with the sms sender.

    Without the denial of bail so far, I doubt if the family or the public would have an idea of what happened that night.

  • Gwebecimele
  • Marizelle

    Great article! Thanks!!

  • Thokozani

    Thanks for the clarity Prof

  • Deloris Dolittle

    Thank you Pierre for a great article!

    In teh last week or so in Middleburg, a woman was granted R10,000.00 bail after being charged with 6 other people for the murder of her husband (one of the 6 others are her maid, whom she allegedly asked to find people to kill her husband). I don’t think you can get more premeditated than that. The reason was that she has a daughter to take care of. But who will take care of the child if she is convicted? And why the inconsistancy in the media attention to the two matters or is it ok to kill a rich white male but not a rich white female. Many people get charged with murder on a daily basis, why this extreme reponse from both the public and the press one this particular case, I mean the ANCWL was dancing outside the court. I’m not saying there shoudl not be any outrage, there should, but at least be consistant.

    And I am not overly excited about the fact that Gerrie Nel is the prosecutor, in fact it scares me. I read Mandy’s book on the Bret Kebble murder/assisted suicide. He developed an unhealthy obsession with nailing Jackie S and was willing to let the 4 guys involved in the death of Brett K walk, no conviction no charge nothing (if i remember correctly) just to get to Jackie. I fear that no matter what the facts are, he now wants to nail Oscar (he said as much before the start of court yesterday) and that justice will not prevail because of this.

  • Chris (not the right wing guy!)

    I must agree, another good piece by Prof De Vos. The comments above shows that the remarks about the inappropriateness of the jury system in the previous post were also spot on. This article was clearly written for the lay person to understand, yet it is clear that some of the previous posters could not comprehend the relatively simple concepts explained. I just shiver at the thought of them forming part of a jury or being a lay assessor who has to decide on the guilt of a person.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Deloris Dolittle
    February 20, 2013 at 9:28 am

    As said commentators including PdV already politicised this crime and escalated that agenda to global level. They just couldn’t wait or help themselves, there is almost a sense of schadenfreude that this time it was a rather wealthy, famous WHITE South African MALE committing such an act. A perfect and politically correct target to sacrifice for the cause.

  • Chris (not the right wing guy!)

    Deloris Dolittle says:
    February 20, 2013 at 9:28 am

    Remember, Gerrie Nel did not handle the prosecution in the Brett Kebble murder case. He was, contraversially so, removed from the case by higher authority and replaced by someone who, judging by news reports, really made a hash of things. And don’t forget that Oscar has Barry Roux on his side. I’ve known Barry Roux professionally for more than 30 years, and if I’m charged with murder today I’ll run straight to him.

  • carl amtana

    An excellent piece proff…i am a strong believe in equality nd justice for all ….i jst hope tht at the end of the trial justice wud prevail

  • Anonymouse

    Read from bottom to top:

    10:46 – Nair calls half-hour delay so lawyers come up with a better picture of what Pistorius’s bathroom looks like.

    10:45 – Nel says objective facts can’t prejudice the State. We’ll adjourn for a few minutes.

    10:44 – [Defence attorney] Roux says he wants the plans to be projected. Nair makes it clear that he doesn’t want to prejudice the State’s case.

    10:43 – Nair asks if there is a diagram to illustrate this evidence. Roux says he’s given one to Nel.

    10:41 Botha: We think [the] shooter would have to walked into [the] bathroom, faced the wall where window was in and fired straight at [the] door.

    10:40 – Nel asks Botha if shots were fired directly at toilet basin and he agrees. “If you fire straight at the door, you miss the toilet.”

    10:36 – Botha: The top part of the toilet door was broken. Shots were fired through the door.

    Botha: four shots were fired through the door, four cartridges found. He used a cricket bat to break door.

    10:34 – Botha: I saw a firearm on the shower mat. Collected 2 cellphones and 2 more two more Blackberries. The two iPhones were not used that morning. The Blackberries hadn’t been used in months.

    10:33 – Botha: Standing in [the] doorway, the shower and toilet are to the right. The toilet is 1.4 by 1.14 metres.

    10:32 – Botha: In Oscar Pistorius’s bathroom, I saw part of the toilet door. I saw one cartridge in [the] passage way, three in [the] bathroom.

    10:31 – Botha: a passage with cupboards through it lead to the bathroom. You have to turn right to get into [the] bathroom.

    10:30 – Botha: If you face the bed, the room entrance is behind you, bathroom entrance to the left.

    10:30 – Botha: upstairs and to the right you have the main bedroom. We found an overnight bag and slippers.

    10:29 – Botha: You have to pass the deceased and the staircase to the left to get to the kitchen.

    10:28 – Botha: As you enter you see the staircase, at the bottom on the left is where [the] deceased was found.

    10:27 – Botha: “Pistorius had an unlicensed .38mm pistol in a safe in his bedroom. He had a license for the 9mm pistol used in the shooting.”

    10:26 – Pistorius has begun to cry again after details of Reeva’s gunshot wounds are presented.

    10:25 – Botha: I was present during [the] post-mortem. Three entrance wounds: right side of head (ear), right elbow (broke arm), hip.

    10:25 – Botha says he obtained statements from security guards and neighbours and attended the postmortem of the deceased.

    10:24 – Botha: “….if he managed to leave the country, we might struggle to get him back [through extradition].”

    10:23 – Nel asks about extradition. Botha: “Difficult. We don’t want another Dewani to happen. We’re still waiting to get him back in the country.”

    10:22 – Botha: “[Pistorius]‘s lawyer came to the house with a locksmith to open a safe in the kitchen. It had a USB stick with details of offshore accounts.”

    10:22 – Botha: We asked to have the safes open. There was a specific safe in the kitchen but no key, so they brought a locksmith to open it.

    10:21 Botha: “We know that he has offshore accounts and a property in Italy. We know this because we went through his safes.”

    10:20 – Botha is opposing bail. “The accused could be a flight risk. It’s a serious crime, a serious matter.
    If he is convicted he faces 15 years to life imprisonment.”

    10:19 – Investigating officer Botha: [I] arrived at scene at about 04:15. “I found the deceased lying at the bottom of the stairs.”

    “She was already declared dead” by medics. “She had on white shorts and black vest. She was covered in towels.”

    10:17 – Roux is satisfied with the response, says Barry Bateman. The State calls investigating officer Hilton Botha.

    10:16 – Nel reveals that Reeva Steenkamp was shot on right side of her body. He says this is part of case that murder was premeditated.

    10:15- Nel: We have a witness who says she heard non-stop fighting between 02:00 and 03:00 [on the] morning of [the] shooting.

    10:14 – Nel: The state is in possession of a statement that there was an argument.

    10:13 – Nel: State not obliged to provide information to accused, but will go into detail with some questions. Bearing in mind the investigation is not concluded.

    Nel says the first order of business is a response to the application by defence for further information.

    10:12 – Magistrate apologises that efforts to set up a video link to the overflow courtroom have been unsuccessful.

    10:11 – Oscar Pistorius enters the courtroom … And the magistrate greets him “Goodmorning sir”, [Pistorius] replies “Good morning Your Worship”.

    10:10 – Barry Bateman: “Nair enters court. The accused is called. Oscar is wearing the same black suit.”

    10:09 – Pistorius bail hearing resumes.

    10:06 – Barry Bateman tweets: “Counsel returns. Nair is being called. We’ll start soon.”

    10:03 – Mandy Wiener tweets: Court official tells us he can’t hold up the case any longer. It will go ahead and they’ll try set up the feed as soon as possible.

    09:47 – Barry Bateman says State and defence counsel are absent. They’re probably in chambers.

    09:46 – @JacaNews tweets: Investigator Hilton Botha in [a] black suit, grey shirt and tie.

    09:45 – Delays in setting up extra media room,where TV screens meant to show proceedings in Court C, mean Oscar Pistorius case still hasn’t started, says Karyn Maughan.

    09:35 – No demonstration and no banners outside courthouse today. Just a dozen bored camera crews, tweets Phillip de Wet.

    09:35 – Mandy Wiener: “And the TV screens arrive! Hoorah.”

    09:29 – Andrew Harding says Pistorius’s father is now seated and appears to be praying.

    09:26 – “I just spotted members of the defence team rolling up what looked like house plans. Likely used to plot movement,” tweets Barry Bateman.

    09:25 – Barry Bateman tweets that Oscar Pistorius’s family have taken up the same spot behind the dock – father Henke, brother Carl and sister Aimee.

    09:16 – Court official tells photographers to leave court – before they can get pictures of Pistorius, says Karyn Maughan.

    09:12 – Official says he will delay proceedings in the main courtroom until TV screen arrives as it is downstairs allegedly, says Mandy Wiener.

    09:11 – Karyn Maughan tweets: “Pistorius’s family try not to look at the dozens of photographers taking pictures of them. Some bow their heads.”

    09:11 – Photographers have been allowed in, tweets @barrybateman. They’ll be asked to leave when court proceedings start.

    09:07 – State expected to kick off proceedings by responding to his lawyer’s request for answers to “our 5 key questions”, says Karyn Maughan.

    A member of Pistorius’s defence team has told Andrew Harding Tuesday “went well”. Today could be tougher.

    09:05 – Oscar Pistorius’s brother Carl now back in court and deep in conversation with the defence’s forensic team, says Karyn Maughan.

    09:05 – Pistorius has been sitting with his brother in the holding cells, says Karyn Maughan. [His] brother bought him energy drinks and protein bars.

    09:02 – Phillip de Wet tweets: “Media overflow room is (shock!) not ready. No video screens, audio link isn’t up yet. Well played again, DoJ.”

    08:59 – Investigating officer for prosecution tells Andrew Harding he’ll go through evidence for much of day.

    08:57 – Media access: everyone stands in fairly orderly line for accreditation. Then everyone forms a mob and pushes and shouts, says Phillip de Wet.

    08:56 – Karyn Maughan tweets: Am okay thanks everyone. Got caught in the Pistorius media crush and fainted. But fine now and back in court.

    08:52 – Phillip de Wet tweets: Award for best attempt at Pistorius access must go to Telegraph’s @Simmoa. “It’s my birthday!” she shouts at officials. Really is too.

    08:50 – Mandy Wiener tweets: “Every citizen who is not a journalist now wants access to overflow court. Refusing to leave even though they’re not media.”

    08:43 – Contracted [technicians] are laying cables and setting up screens in [the] overflow room as [journalists] queue to get access to [the] main court, tweets Mandy Wiener.

    08:36 – The Jacaranda news team tweets: “Utter chaos here … [Journalists] still haven’t been allowed in courtroom.”

    08:25 – Kenny Kunene has arrived at court for the bail proceedings, tweets @heatSouthAfrica.

    08:23 – A member of the media just fainted outside [the] Pistorius courtroom because of people pushing to get into court, tweets @TheCitizen_News.

    08:16 – Very pleased to report that court officials are setting up an overflow room for journalists replete with video screens etc, says Mandy Wiener.

    08:15 – Pistorius’s family has just walked through the court doors, tweets @asasokopo.

    08:08 – Alex Crawford: “My cameraman Garwen McLuckie tells me [Pistorius] arrived with [a] blanket over his head.”

    08:07 – Alex Crawford ?tweets: “Journalists have been queuing for two hours now to get inside the court – and the case doesn’t begin for an hour.”

    08:01 – Pistorius’s legal team has just walked through the front doors here, carrying stuffed briefcases and rolled up documents, says @MandyWiener.

    07:35 – Andrew Harding tweets: “Shiny wristbands for journalists covering Pistorius I have mine and now queuing outside court C. Sweltering day here in Pretoria.”

  • lunga

    Under these articulation, Pistorius stand giid chsnce to be granted bail.

  • Anonymouse

    “In such cases the National Director of Public Prosecutions (NDPP) can issue a written confirmation that he or she intends charging the accused with one of these schedule 6 offences, which the court considering bail will take as prima facie proof of the charge to be brought against the accused by the Prosecuting Authority.

    The bail hearing of Oscar Pistorius is based on this section, but because the NDPP did not issued a note confirming the schedule 6 charge, the court must first decide whether there is a significant likelihood that Pistorius will indeed be charged with “premeditated murder”. ”

    I don’t agree —- Here is my 5 cents’ woth:

    S 60(11) of the Criminal Procedure Act 51 of 1977:
    “(11) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to-
    (a) in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his of her release;
    (b) in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release.”

    Sect 60(11A):
    “(11A)(a) If the attorney-general {DPP} intends charging any person with an offence referred to in Schedule 5 or 6 the attorney-general may, irrespective of what charge is nooted on the charge sheet, at any time before such person pleads to the charge, issue a written confirmation to the effect that he or she intends to charge the accused with an offence referred to in Schedule 5 or 6.
    …”

    I don’t see the reason for the long arguments by the parties and the ruling by Desmond Nair yesterday that Oscar is probably to be charged with a Schedule 6 offence – if the prosecutor (in this case, a Senior State Advocate of the DPP’s office) states that he is charging the accused with premeditated murder, regardless of whether a section 60(11A) certificate has been issued by the DPP or not, then cadit quaestio – the court cannot second-guess his decision to charge him with the said offence. (I believe that a formally completed charge sheet was read out to court, clearly stating that Oscar is ‘charged’ with a Schedule 6 offence.) He is ‘charged’ with a Scedule 6 offence, and he bears the onus impposed by sectionn 60(11)(a) and thats it. The section does not require that he be ‘convicted’ or, that there is a probability of his being convicted of a shedule 6 offence. Section 60(11A) is only intended to help the court determine the issue where the prosecutor at the stage of the bail hearing is indecisive as to whether the accused has to be charged with a Schedule 5 or a Shedule 6 offence – and then sect 60(11)(A) – read with sect 50(6)(d)(ii) of the CPA – helps the prosecutor to obtain his senior’s opinion in the form of a certificate as to with what kind of crime the accused should be charged – and in such a case, the certificate will be prima facie proof of the state’s intention (which can of course still change before the hearing on the merits. S 60(11A) (read with sect 50(6)(d)(ii) of the CPA is therefore designed to help inexperienced prosecutors (or the court, in the case of indifferent prosecutors as per sect 60(10) of the CPA) to determine the regime (the onus of proof issue) of the bail application at hand. I think Barry Roux wasted a precious lot of time (and of Oscar’s money) in feebly arguing that there is a possibility or even a probability that Oscar will in thye end not be charged with a Schedule 6 offence, and therefore, that his onus is lighter. If he thinkks that there is a possibility (or even a probability) that Oscar might not be convicted of a Schedule 6 offence should he be so charged, he is free to present evidence to that effect, and to argue that the lack of apparent strenght in the state’s case in itself provides for an exceptional circumstance which in the interest of justice permits Oscar’s release on bail. But to second-guess the prosecutor’s decision for purposes of determining the onus issue (or, requiring the court to do so) is impermissible in terms of the bail legislation. At most, he can argue that his case as opposed to that of the state, provides for exceptional circumstances.

    Otherwise – a good piece Prof.

  • Gwebecimele

    @ Mouse

    I am with you on this one.

    “I think Barry Roux wasted a precious lot of time (and of Oscar’s money) in feebly arguing that there is a possibility or even a probability that Oscar will in thye end not be charged with a Schedule 6 offence, and therefore, that his onus is lighter”

    Let him play delaying tactics behind bars. Priority here is justice for the family and not bail for the accused.

  • Dan

    Thanks for this Prof,

    It’s up to your usual high standards.

    Can I ask about appeal though? Presumably OP has can appeal any bail decision – initially to the High Court and then upwards to the Constitutional court?

    Dan

  • Anonymouse

    Dan

    February 20, 2013 at 12:14 pm

    Both the state and an accused has a right to appeal a bail decision – depending on who lost. The route is then – High Court (even a single judge can hear a bail appeal – as an exception to the rule); Supreme Court of Appeals; and, currently, if a constitutional issue arises, a bail appeal can be brought in the Constitutional Court

  • Maggs Naidu – Yikes, another seven years! (maggsnaidu@hotmail.com)

    Anonymouse
    February 20, 2013 at 12:50 pm

    Doc Mouse,

    It seem that the IO is being torn to shreds.

    Is it normal to expect the IO to have all the information while the investigation is still underway?

    It does seem like Nel missed some obvious stuff though – like were there any other phones.

  • Zoo Keeper

    I see an activists group is protesting outside court demanding OP be denied bail until he has proved his innocence.

    Nothing like dispensing with the right to be presumed innocent until proven guilty if it fits one’s narrative!

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  • http://www.ozoneblue.co.za/ Ozoneblue

    Zoo Keeper
    February 20, 2013 at 13:37 pm

    “I see an activists group is protesting outside court demanding OP be denied bail until he has proved his innocence.”

    This a sort of political trail now. OP – the ultimate example of the White, [racist] successful, middle class, heterosexual male. The embodiment of “masculinity” and the oppression of women is what is on trail.

  • Anonymouse

    Maggs Naidu – Yikes, another seven years! (maggsnaidu@hotmail.com)

    February 20, 2013 at 13:18 pm

    Yesterday I already said that, even people who are eventually convicted of murder and sentenced to life imprisonment can get bail – it all (or mostly)depends on how strong the case is or whether the lack of strength in the state’s case can be regarded as exceptional circumstance justifying release on bail. The concessions that the IO has made do not really strenghten Pistorius’ version – to the contrary, where he made no concessions, the strenght of the state’s case is underscored – e.g., about the female shouts when the first shot went off, the lights that were on, that Reeva didn’t answer when Pistorius called out to the suspected intruders or her to call the cops, the angle at which the shots have been fired (even a layperson can see that one had to shoot rather straight towards the toilet – in other words, he must have known thet the intruder or intruders were actually on the toilet, the fact that he planned to shoot the suspected intruders without establishing whether he is entitled in law to do so (viz the requirements for the defence of private defence or putative private defence to be raised successfully in a murder trial) – which still amounts to premeditated murder (it is not a requirement that he should know exactly who the victim is), etc, etc. I still think that there are indications that the case against Pistorius is strong, and that a probability exists that he will be successfully prosecuted.

    Therefore, the concessions by the IO, in my opinion, do not detract from the strenght of the state’s case, and that cannot be regarded as exceptional circumstance. There might be other factors though, like his physical disability, that may be regarded as exceptional in his favour – it will depend on how Desmond nair sees it.

    However, the magistrate’s questions about Pistorius’ flight-risk status seems to suggest that, even if there is a strong case to be made out against Pistorius, he might be inclined to grant bail. Remember that bail conditions can be imposed that will make it virtually impossible for Pistorius to flee (leave the country – except if he pulls a Dirk Pretorius in the Adv Barbie matter, and convinces a court to rescind the bail condition that he may not leave the country and flees to Belarus), or to meddle with evidence or exhibits or to present a threat to society.

    A bail hearing is a funny thing – in one court it might succeed, in another not, and the attempt by Parliament to impose specific guidelines in legislation for the courts to follow has not yet proven successful to bring about unanimity.

  • Maggs Naidu – Yikes, another seven years! (maggsnaidu@hotmail.com)

    Anonymouse
    February 20, 2013 at 15:45 pm

    Doc,

    It may well be that he intended to shoot an intruder.

    But the state’s case is that he intended to shoot Reeva.

    So far it seem that the IO has not been able to provide evidence to dispute his version.

    While there may be much while will hold back his getting bail – it seems the IO was too macho with his presumptions e.g. not checking if there were other phones; not confirming the “testosterone”; not checking if calls were made to police;security; ambulance.

    If the tweets are anything to go by, it’s surprising that Nel did not prepare the IO well enough.

  • Mikhail Dworkin Fassbinder

    Maggs, I know this is a bit off topic, but it is relevant insofar as you continue to use the offensive YIKES ANOTHER 7 YEARS exclamation. I get the sense this may be a somewhat RACIST sobriquet. After all, you wouldn’t say that if the President was a flagrant WHITIST like Zille of Ramphele!

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    February 20, 2013 at 16:22 pm

    Dworky

    “After all, you wouldn’t say that if the President was a flagrant WHITIST like Zille of Ramphele!”

    Better?

    I found it rather amusing that Andrew Feinstein was surprised to learn that government was planning to spend even more money on the #NkandlaCompound and that many were impressed with the revelation that there is no such thing as the “Presidential Handbook”!

  • Gwebecimele
  • Anonymouse

    Maggs Naidu – Yikes, another seven years! (maggsnaidu@hotmail.com)

    February 20, 2013 at 16:02 pm

    Anonymouse
    February 20, 2013 at 15:45 pm

    Doc,

    It may well be that he intended to shoot an intruder.

    But the state’s case is that he intended to shoot Reeva.

    No – it’s not. In any event, the ID of the deceased is irrelevant in a murder charge – a guy who plants a bomb (McGoos Bar for example – McBride!) does not know who his victims will be. Unless Oscar knew Reeva was behind the door (and I’m willing to bet he did), it doesn’t matter in a murder trial (and bail hearing) who he thought the victim might be – if he thought of killing someone, he is guilty, no matter that he killed someone else.

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Anonymouse
    February 20, 2013 at 17:22 pm

    Point well made Doc that it will be difficult to disprove that he intended to murder (or is it kill) someone.

    I suppose it will impact on a civil claim if that did arise later!

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Anonymouse
    February 20, 2013 at 17:22 pm

    Do Mouse,

    Is it correct that the record of the bail hearing cannot be used in the trial?

  • Deloris Dolittle

    Chris, yes I know it Nel was not the eventual prosecutor in the Kebble trial but he was the prosecutor in the Selebi matter and until I read the mentioned book I did not know there was such a hugh connection between the two matters.

    Really enjoying the comments on this one, criminal law was never my forte and I’m learning a lot, thanks to all and sundrie. Must just say, all the half truths told by the IO convinces me more that Nel really does not care about the truth, just about the conviction.

  • Chris

    Deloris Dolittle
    February 20, 2013 at 18:50 pm

    Deloris, you must remeber two things: First: Barry Roux is a master of cross examination. I’ve seen him in action on a number of occations, and he knows every trick in the book – especially how to make a witeness look bad and feel bad. To the reporters present (lay persons) certain concessions or answers may look huge, while it will make little impression on a trained lawyer. In his reply to the initial arguments by Gerrie Nel, Barry Roux reportedly responded with “so what” a number of times. The same goes for for many of the concessions made by Botha.
    Secondly, when evaluating evidence the preciding officer does it on the totality of all the evidence. The tacitcs by the defence today were something like A is possible, B is possible, C is possible and D is possible. That does not bring you anywhere unless you can say A and B and C and D are all possible at the same time. Most law students know the case of the wife who drowned in the bathtub. The accused’s first wife drowned in the bath after an epileptic fit, shortly after having changed her will in favour of the accused. That is possible. The accused’s second wife drowned in the bath after an epileptic fit, shortly after having changed her will in favour of the accused. That is possible. The accused’s third wife drowned in the bath after an epileptic fit, shortly after having changed her will in favour of the accused.That is possible. But is it reasonably possibly true that all three his wifes died in such similar circumstances? No, it isn’t.

    Back to the Brett Kebble murder, the witnesses who got amensty was to secure the conviction of Agliotti, and not Selebi. Furthermore, I believe if Gerrie Nel was not removed from the case apparently for political reasons, Agliotti would have been convicted. The acquittal followed a ruling that Agliotti’s affidavit used during the bail application may not be used in evidence. As far as I could gather the poor prosecutor did not even know that there is a well motivated judgement where a KZN judge came to the opposite conclution, and therefore did not use it in argument before this (in my opinion wrong) ruling was made. The State then just threw in the towel, where it had the opportunity to get finality from the SCA.

    Maggs, the record of the bail hearing can be used at the trail. However the evidence by the accused may only be used if certain prerequisites are met, and evidence of his previous convictions and pending cases led during the bail application are excluded.

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Chris
    February 20, 2013 at 19:57 pm

    Thanks!

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Anonymouse
    February 20, 2013 at 17:22 pm

    Doc – this schedule 5/6 thingy.

    Would it make a difference if he convinces the court that it was possible that he intended to “neutralise” an intruder and not kill Reeva?

  • Pingback: Oscar Pistorius: Day 2 Wrap-Up and Bail Prediction - I Hate Paypal

  • Gwebecimele

    It seems as if this case is poorly prepared.

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Gwebs – after reading Doc Mouse and Chris I get the sense that, while the training and readiness of our cops leaves a lot to be desired, it’s not as I initially thought.

    In addition the oke has a house in Italy which does not have extradition treaty with us and offshore accounts which he did not reveal.

    In response, Botha said the police were confident of their investigation and were awaiting final reports on ballistics, forensics and pathology matters, which would, along with crime-scene analysis documents, shore up their case.

    Nel, redirecting Botha, suggested that Pistorius’s affidavit provided more questions than answers. He said to the detective: “You have not been provided with all the evidence have you? There was a fifth cellphone . but you do not have it do you? Is this not strange? Surely if his lawyers were as helpful as they claim you would have everything you require?”

    Botha replied that he was battling to obtain evidence, including the “mysterious fifth cellphone”.

    “We found a holster, a safe with 38 .38 special unlicensed rounds of ammunition, four cellphones . [on] none of which calls [had been] made to police, complex security guards or paramedics . drugs believed to be steroids, syringes, needles and a cricket bat with blood splatters .

    “We were suspicious . on top of this there was a memory stick containing details of an overseas bank account on it, which his brother and lawyer took . We are concerned Pistorius is a flight risk . he has assets he has not declared . an offshore bank account and a house in Italy,” he said.

    Botha told the court that, in 2009, he had questioned Pistorius at his home on a charge of assault, which was later dropped.

    http://www.timeslive.co.za/thetimes/2013/02/21/oscar-cop-hammered

  • Mikhail Dworkin Fassbinder

    Maggs, this “Oscar fuss” has distracted many of our people from the launch of Ramphele’s AGANG “platform.” But is that such a bad thing? The chattering classes and Social Media types must not assume our people will flock like ducks to a woman who demanded so-called “excellence” while VC of UCT – and who did nothing for us while sitting at the World Bank.

    Thanks.

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    February 21, 2013 at 7:31 am

    Dworky,

    I’m not sure what AGANG is about.

    A nice speech then … nothing.

    Nothing about that speech is not already in the public domain anyway. The NDP and the ANC’s policy documents have more interesting stuff.

    If Rampele is hoping to become a formidable force based on changing the constituency system it sounds a no-hoper to me.

    AGANG will probably end up COPE II with a vengeance – unfortunately that will not contribute to deepening and strengthening democracy.

    But let’s see what happens leading up to 2014 – maybe there’s some rabbit to be pulled out of a hat!

  • Mikhail Dworkin Fassbinder

    @ Maggs

    ” The NDP and the ANC’s policy documents have more interesting stuff.”

    Maggs is right. Which makes it all the more tragic that the UBER-WHITISTS of the DA have STOLEN the NDP (who says its only blacks who steal?), and spends all its time demanding that the ANC implements the NDP in practice! (No wonder the DA is better known as the “Desperate Alternative”!)

  • http://www.ozoneblue.co.za/ Ozoneblue

    Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)
    February 21, 2013 at 8:12 am

    Perhaps she is just thinking very, very hard.

    Just imagine she can come up with an entirely new approach a moneyfesto – lets say a master plan of some sorts to bring about an equal distribution of wealth with a rigid conformance to our demographics and a destruction of White privilege and the erection of Black power and end of gender based oppression and compulsory male castration and gay marriage and she fights corruption and lets just say she calls it something hmmm.. catchy … like the National Pink Democratic Revolution!

    Minor detail about how Africans should treat their doggs – now that is not so important right now and can come later.

  • Zoo Keeper

    Mouse

    Interesting point you raised – he did not establish he had the right in law to shoot?

    My understanding of the common law is that it was pretty robust – you extinguish a threat with whatever means you have at your disposal.

    That old proposition seemed pretty much in line with the constitutional right to safety and security of person.

    What’s the deal now from the prosecutions point of view?

  • http://www.ozoneblue.co.za/ Ozoneblue

    Zoo Keeper
    February 21, 2013 at 8:50 am

    “Interesting point you raised – he did not establish he had the right in law to shoot?”

    I wished I had a gun, but if I have one and I woke up in the middle of the night I would shoot if somebody I don’t know was using my toilet, or locked himself in my bedroom cupboard.

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Ozoneblue
    February 21, 2013 at 8:54 am

    LOL OB,

    “I wished I had a gun, but if I have one and I woke up in the middle of the night I would shoot if somebody I don’t know was using my toilet, or locked himself in my bedroom cupboard.”

    It has got that silly hasn’t it.

    The guy shoots several shots at “someone” locked in his toilet.

    Self-defence my ass!

  • Brett Nortje

    The ANC also ‘transformed’ the criminal justice system to the point where the conviction rate in trio crimes is 1% and in rape cases 2,7%

    Viva ANC viva!

    Maggs Naidu -Shit for brainsss! (maggsnaidu@hotmail.com) says:
    February 21, 2013 at 8:12 am

  • Chris

    One thing nobody seems to have mentioned up tp now- what if Oscar’s version of events is accepted.
    It is common cause that he killed Reeva.
    The next question must be, was it unlawful. There the test will be as follows: Was his conduct contrary to the community’s perception of justice or equity or the legal convictions of the community. Just imagine how many women will die every night if Oscar’s coduct was seen as acceptable! I think the answer will be a resounding no.
    Next you have to look at fault. Fault can be intention or negligence. Consciousness of wrongfulness is an element of intention. I understand Gerrie Nel’s argumaent to be that even if Oscar’s version is accepted, he is guilty of murder because his intention was to murder an intruder. If he said that, I think he is wrong because the State will then have to prove that Oscar realised that he was acting unlawfully when firing the shots.
    That leaves us with negligence. I think negligence in this context is a failure to exercise the care which a reasonable person would exercise in those circumstances. I have no doubt that on his own version Oscar was grossly negligent and would, should his version be accepted, be convicted of culpable homicide.
    Then there is the .38 firearm and ammunition he had in his safe. To have kept it for his father would not be a defence in law. If he is charged with that, he will probably admit guilt.

  • Zoo Keeper

    Mouse

    Does the law require the intruder to attack first? Is it the case of fire when fired upon? What happened to the right to safety and security of person – a positive right by the way?

    Surely, if a threat is detected (and lets discount the OP case here and deal with principle) and you act against a real and subjective perception of that threat, you have done nothing wrong?

    Captain Hindsight is surely misplaced in these incidents?

    SA has one of the highest crime rates in the world – almost all of us fear an unknown bump in the night. Panic can set in; very quickly and very easily.

    Surely the benchmark is the average Joe Soap in a panic, not a well-trained SWAT team member?

    Back to OP, everyone seems to be judging his actions from the point of view of their Hollywood education and X-Box experience. What happens when someone freaks out and panics? Isn’t panic a reasonable emotion in this country?

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Chris
    February 21, 2013 at 9:24 am

    Chris,

    “If he said that, I think he is wrong because the State will then have to prove that Oscar realised that he was acting unlawfully when firing the shots.”

    It sounds like it’s being stretched beyond reasonable.

    It cannot be lawful to fire shots through a locked door especially if you think someone is hiding in there.

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Zoo Keeper
    February 21, 2013 at 9:31 am

    ZooKy,

    “What happens when someone freaks out and panics? Isn’t panic a reasonable emotion in this country?”

    I have just been born again – Good GOD!

    So the murders in Muldersdrift will be able to claim that they murdered the people on those farms because they “panicked”???

  • Zoo Keeper

    Maggs and everyone

    Let’s take Steenkamp out of the bathroom and put her in the bed.

    Let’s put genuine intruder(s) in the bathroom. I have no idea of the layout of the house so we’ll assume they broke in through the bathroom window.

    Now what? Does OP go and open the door and get himself killed when the intruder shoots him first? What if we were reading headlines like “Intruders shoot OP dead, girlfriend brutally gang-raped and tortured to death”?

    Think rationally for once. How does the story change if there was a genuine threat waiting in the bathroom?

    Mouse – does the law require OP to first expose himself to danger and run the risk of getting killed? Or does the law respect the fact the a citizen may launch a pre-emptive strike when confronted with a threat in his own home?

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Zoo Keeper
    February 21, 2013 at 9:46 am

    ZooKy,

    “Does OP go and open the door and get himself killed when the intruder shoots him first?”

    No – the first thing a man with a gun should do is to lock himself (and his girlfriend) in his bedroom and alert the security, the police, neighbours, friends and anyone else he can.

    It’s reported that the particular complex has excellent security.

  • Chris

    Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com) says:
    February 21, 2013 at 9:35 am

    Hi Maggs,
    No, it is without doubt unlawful, but the State will have to prove that Oscar subjectively realised that at the moment when he fired the shots before there can be a conviction of murder. That is a question of fact, an no matter how illogical it sounds to us, the judge will have to decide what went on in Oscars mind at that moment.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)
    February 21, 2013 at 9:50 am

    “No – the first thing a man with a gun should do is to lock himself (and his girlfriend) in his bedroom and alert the security, the police, neighbours, friends and anyone else he can.”

    Well. If you see the layout there is no door separating the bathroom from the bedroom, only the toilet from the bathroom and this was locked from the inside i.e. if you accept OP version of events the intruder[s] would be able to unlock the door and initiate an attack. This doesn’t answer a simple question like why would the intruder[s] lock themselves in the toilet though. Perhaps OP thought they needed to take a quick crap?

  • Chris

    Back to the topic, I think Oscar will get bail.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Chris
    February 21, 2013 at 9:56 am

    It takes my security almost 1/2 hour to arrive sometimes. Phoning the cops – lol. No, I would rather be convicted of murder than get myself + family murdered/tortured to death instead, thank you very much.

    South African 12-year-old drowned in boiling water after seeing parents killed

    http://www.telegraph.co.uk/news/worldnews/africaandindianocean/southafrica/9430173/South-African-12-year-old-drowned-in-boiling-water-after-seeing-parents-killed.html

    What you say is the law requires us to wait and do a citizens arrest? From which fucking planet are yous from? If I had a gun and some unidentified individual[s] are in my house – they can count themselves dead.

  • Anonymouse

    Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    February 20, 2013 at 18:38 pm

    Maggs – wrong – the record of bail proceedings will form part of the trial record and may be used (with the exclusion only of proof of previous convictions, if proven – which must be excised from the record). So, Oscar will have to stand and fall by whatever he said in his affidavit and, should Botha testify in the main trial, he will also be in quite a spot if he deviates from his testimony at the bail hearing, unless he can otherwise expalin the discrepancy to the satisfaction of the court. I don’t think he’ll necessarily testify though, since most of what he said was hearsay (other witnesses will have to testify) and opinion evidence (experts will have to testify to bolster his opinions before they will be accepted). He will, if required to testify, only be required to say what he found on the scene, and then other witnesses’ evidence will have to fill in the facts.

    Mags (again) and Zoo Keeper: Oscar just trying to ‘neutralise’ an intruder, not intending to kill him/her? Nonsense – how can you ‘neutralise’ someone if you do not even know who he/she is, where ecxactly he/she is, whether he/she needs to be ‘neutralised’ (i.e., is he/she armed – does he/she pose a threat?) ?!

    Remember, the common law of private defence requires that there must have been an unlawful attack on someone’s property or life and limb before one can rely on the defence – the test is objective ex post facto. In this case, ex post facto established, there was no intrusion or unlawful attack. Secondly, the means used to defend one’s property or onneself must be the only reasonable means with which to stop the attack.

    Even if he only ‘thought’ that there was an intruder – putative private defence – he will have to show that he had reasonable grounds to believe that he was under iminent attack and that he was within his rights to shoot at an unidentified person behind a locked door, without establishing whether that person posed a threat at all.

    Unforunately I do not have the time to further elaborate – off to court myself – but Oscar does not have a channce in hell to escape conviction on a murder charge (perhaps not pre-meditated – a question that can be debated still – but still murder)

  • http://www.ozoneblue.co.za/ Ozoneblue

    Anonymouse
    February 21, 2013 at 10:22 am

    “Even if he only ‘thought’ that there was an intruder – putative private defence – he will have to show that he had reasonable grounds to believe that he was under iminent attack and that he was within his rights to shoot at an unidentified person behind a locked door, without establishing whether that person posed a threat at all.”

    This “law” is a sick joke hey? What if there are three or four psychotic armed robbers – as is very often the case in SA – behind that door, how much chance would you have even if you have a gun?

    You live in a dream world, wait till something like this happens to your arse.

  • Zoo Keeper

    OB

    Thanks for that post.

    There seems to be problem with SA law and right to defend oneself.

    Surely, in the privacy of one’s own home, you are entitled to take whatever measures are required and kill anyone who is threatening you?

    Surely the intruder takes full responsibility of whatever befalls him in his escapades?

    If not, where is the line drawn and how is it drawn?

    Maggs.

    Fine, you’ve locked yourself and your family in the bedroom. The intruders now proceed to smashing your door down. Do you wait for the door to fall and the intruders to pile in? Or do you fire into the door hoping to kill whoever is behind the door?

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Ozoneblue
    February 21, 2013 at 9:58 am

    OB,

    Pistorius version does not make sense.

    Consider for example that he says 16.11 I noticed that the bathroom window was open.

    Look at the layout here http://www.washingtonpost.com/rf/image_606w/2010-2019/WashingtonPost/2013/02/20/Sports/Images/517508979.jpg

    To see the bathroom window he would have had to be inside the bathroom!

    If someone was indeed loocked inside the bathroom then he (and his girlfriend) could have left the bedroom and locked the bedroom door, trapping the “intruder” on the inside.

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Zoo Keeper
    February 21, 2013 at 10:28 am

    ZooKy,

    “Fine, you’ve locked yourself and your family in the bedroom. The intruders now proceed to smashing your door down. Do you wait for the door to fall and the intruders to pile in? Or do you fire into the door hoping to kill whoever is behind the door?”

    But we’ve had a similar situation – I was not there when the burglars broke in.

    The people at home called the security company, the police and me.

    I called the police and security company while driving 15 kms.

    Nobody was shot/killed!

    And none of us have or intend to have guns – even if we did, it’s highly unlikely that in the circumstances that anyone would have been shot or killed!

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    For a guy who claims to be paranoid about his safety :

    There are no burglar bars across the bathroom window and I knew that contractors who worked at my house had left the ladders outside.

  • Deloris Dolittle

    @ Maggs

    ‘The guy shoots several shots at “someone” locked in his toilet.’

    and OB

    ‘This doesn’t answer a simple question like why would the intruder[s] lock themselves in the toilet though.’

    Surely Oscar had no way of knowing in that moment that the toilet door was locked (unless it has one of those public toilet locks that shows red when locked which I doubt given the upmarket nature of the house). Closed door, yes that much is obvious but not locked.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)
    February 21, 2013 at 10:40 am

    “And none of us have or intend to have guns – even if we did, it’s highly unlikely that in the circumstances that anyone would have been shot or killed!”

    You are talking total, unadulterated rubbish now and you are in total denial of what happens to South Africans of all description on a daily basis. We are being terrorised inside our own homes. And is it not interesting how the culture of violent crime in South Africa his hardly mentioned in the circumstances by the media and political fallout now all focused on the case of this murderous “irrational” OP. What if they did break in and violently raped and murdered Steenkamp and drowned Oscar in a bath of boiling water? Do you think this story would have become a rallying point for the international feminist movement, or just another unfortunate “crime statistic”.

  • Zoo Keeper

    Maggs

    I’m happy for you no-one got hurt, I really am. But others are not so lucky.

    The 75-year in Krugersdorp didn’t own a gun but last week he got beaten to death by robbers anyway. Anene Booysen was raped and disemboweled without firearms in the vicinity anyway.

    Hoping the criminals are going to be kind is not the best form of self-defense, surely?

  • Zoo Keeper

    OB

    You will notice I posted a similar question: What if there was a genuine intrusion?

    Nobody is answering – its too hard and falls outside the convenient narratives.

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Ozoneblue
    February 21, 2013 at 11:02 am

    OB,

    You’re confused.

    How is it nonsense that none of us have (or want to have) guns?

    How is it nonsense that none of us would want to shoot another human being?

    Shooting and killing one’s girlfriend, wife, mother, worker’s child, own child, passers by, friends … mistaking them for “possible threats” does not help to reduce violent crime.

    Confronting an armed intruder with a gun will just escalate the possibility of violence!

  • Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com)

    Zoo Keeper
    February 21, 2013 at 11:07 am

    ZooKy,

    “Nobody is answering – its too hard and falls outside the convenient narratives.”

    I answered above – but let’s have a repeat.

    If there is a genuine intruder, call security, call cops, call neighbours, call, friends.

    Then pray!

  • Gwebecimele

    As someone who recently applied for more licenses Oscar have fresh memory on the law. A warning shot possibly through the window was an option to scare the intruder,alert security and neighbours and lastly just check where your girlfriend is before discharging a firearm.

    OP will be convicted of murder of the “Bathroom Occupant”.

  • Zoo Keeper

    Maggs

    Better hope your deity is listening then.

  • Gwebecimele

    will be= will probably be

  • Zoo Keeper

    Gwebes

    Don’t you think it is disturbing that a newspaper had such quick and easy access to such deeply private information? Whilst the public may be interested, it doesn’t mean its in the public interest his applications are disclosed.

    I just surprised the DFO didn’t send the location of OP’s gun safe and the combination too.

  • Anonymouse

    Zoo Keeper

    February 21, 2013 at 11:07 am

    (and OzoneBlue)

    The sanctity of human life is such that the law cannot play ‘what if’ games. What if the genuine intruder was a helpless child running from rapists and robbers; or, what if the genuine intruder was a hungry five-year-old child looking for something to eat in the rich white man’s house; or, more to the point, what if the perceived intruder is actually one’s bedpartner who went for a wee – Oscar didn’t even consider that possibility?

    You see – there are simply too many what if’s to be reckoned with. That is why the CC declared s 49 of the CPA unconstitutional some time ago – and, in its present form, even the police may only shoot and kill in real private defence situationns – and they may not shoot and kill in situations where even a 10 year old would have known that it is unlawful to shoot first and then ask questions. (By the way, Oscar is a licensed gun owner – that is pretty basic stuff he should have known to pass the competency test to get a fire arm.)

    You know – the way you are going on reminds me of an urban legend that was told while I was still in primary school. You can shoot and kill anyone right outside your house and, as long as you drag him into your house afterwards to show that he was an intruder, you will not be held accountable – as it will be regarded as ‘justified manslaughter’ if you shot and killed an intruder. Later, when I studied law, however, I discovered that that story was utter bullshit. (How about the farmer shooting and killing people he thought were baboons that were going to steal some mealies?)

  • Zoo Keeper

    Mouse

    OK, so let me see if I have this correct then:

    OP had to first establish the identity of the occupant of the toilet before shooting?

    He had to first make a positive ID that there was a genuine intruder. Once he had a positive ID he has to wait until his life is threatened before acting in self-defense.

    Do I have it right?

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    Zoo Keeper
    February 21, 2013 at 12:11 pm

    ZooKy,

    “OP had to first establish the identity of the occupant of the toilet before shooting?”

    That would have been nice.

    Perhaps these pages then would have been filled with the sordid details of a lovers’ quarrel.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Anonymouse
    February 21, 2013 at 12:01 pm

    “The sanctity of human life”

    “or, what if the genuine intruder was a hungry five-year-old child looking for something to eat in the rich white man’s house;”

    So it is only “rich white people” who are victims of criminal brutality now? That is an interesting assumption.

    So did you ever have a family member raped or tortured to death inside your own home? Where is your “sanctity of human life” not to mention humanity, hey?

  • http://www.ozoneblue.co.za/ Ozoneblue

    Zoo Keeper
    February 21, 2013 at 12:11 pm

    “Do I have it right?”

    Apparently yes. The problem is not the intruders that actually broke into the house with a very probable intention to rape, torture and murder. The problem are those potential victims who are terrified of such acts being perpetuated on them and then trying to defend themselves.

  • Gwebecimele

    @ Zook

    Not just identify but also be sure that the intruder is armed and ready to attack.

  • Zoo Keeper

    Gwebes

    Thanks

    Mouse will shortly correct me; but OP had to first place himself and his safety at risk before being entitled to defend himself?

    Mouse brought up the old urban legend of shooting someone in the backyard and dragging them inside to claim self-defense.

    That is misdirection of my point.

    My point was, in order for the right to defend oneself to exist, one has to be under an actual attack. One cannot see an attack coming and go on the offensive to defend oneself – it is a case of only fire when fired upon. If they hit you first then tough luck I suppose.

  • Anon Lawyer Girl

    Thank you for this informative piece. I feel like distributing it to the general public and requiring a full understanding of the article before I even debate this matter with anyone.

  • Gwebecimele

    @ Zook

    You don’t have to wait for your attacker to attack first. If he is armed & approaching within a threatening distance you can attack or if he is attacking another member of the family (including your dog) you can shoot. In a case where you are behind a locked burglar door you have an option to move back into the house.

  • Gwebecimele
  • Mikhail Dworkin Fassbinder

    We don’t need the WHITE MESSIAH Cronin siding with Lekota in his attack on Mr Zuma’s right to housing in Nkandla!

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    Zoo Keeper
    February 21, 2013 at 12:41 pm

    ZooKy

    “but OP had to first place himself and his safety at risk before being entitled to defend himself?”

    OP defended himself by shooting his girlfriend dead while she went to pee????

  • http://www.ozoneblue.co.za/ Ozoneblue

    More of this ultra PC liberal double speak and deeply entrenched irrationality.

    Again from EUSEBIUS McKAISER:

    “Cry, the Misogynistic Country”

    “But the Pistorius case tells us that brutal violence against women is an equal-opportunity affliction in South Africa; it has no respect for whether its victims are rich or poor, black or white, suburban or rural. Our society is drenched in violence. A woman is safe in neither a shack nor a mansion.”

    As said for dear EUSEBIUS one swallow definitely makes a summer. What are the stats then, what percentage violent women abuse happens in impoverished squatter camps and rural areas, and what percentage occur in the more financially secure and socially stable middle class environment. I guess it would be something like 1000:1. Why is it then so important for black middle class EUSEBIUS to latch onto this event, like some fucking ideological parasite, refer to this as an “equal-opportunity affliction”. To run to the NY times with such denialist bullshit?

  • http://www.ozoneblue.co.za/ Ozoneblue
  • Henri

    Forget the bail. He ought to get bail. Period.

    But here is the bottomline: http://www.beeld.com/Suid-Afrika/Nuus/Bly-moord-al-het-Oscar-gedink-hy-skiet-inbreker-20130219

    On his own version he is guilty of murder. The test is as in R v Attwood 1946 AD 331 at 340 [recently affirmed by the SCA in Mugwena 2006[4] SA 150 SCA at 158C]:
    “[homicide in self-defence is justified if the person concerned]…’had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury, that the means he used were not excessive in relation to the danger, and that the means he used were the only or least dangerous whereby he could avoid the danger’ “.

    Oscar’s version fails this test. His intruder were hiding in the toilet behind a closed door when he pumped at least three shots through that door. He was thus not being attacked at that very stage.

    Point is, even if the State’s case falls apart, he is still guilty on his own version.

    Forget all the other brouhaha and shenanigans.

  • Zoo Keeper

    Just a thought on the women stuff.

    Women make up approximately 20% of all homicides and men the other 80%.

    Guess some others don’t really count when there’s a political point to score.

  • Michael Osborne

    @ Zooks

    “Women make up approximately 20% of all homicides and men the other 80″

    Yes, and blacks are overwhelmingly the victims of violent crime. That does not stop some from politicizing crime, and claiming a select GENOCIDE of whites.

  • Gwebecimele

    How will our courts view the latest development around construction of etolls? As usual they may refuse to see beyond their feet.

    http://www.dailymaverick.co.za/opinionista/2013-02-21-freeway-construction-collusion-money-back-please/

  • http://www.ozoneblue.co.za/ Ozoneblue

    Henri
    February 21, 2013 at 13:06 pm

    “His intruder were hiding in the toilet behind a closed door when he pumped at least three shots through that door. He was thus not being attacked at that very stage.”

    If Oscar’s story is true (and I doubt very much it is true) it could also have been a group of heavily armed intruders, he wouldn’t know, now would he. If that is the case against him then given the same circumstance I would probably have done exactly the same. Take as many of those bastards out as possible BEFORE they come through that door.

    If they want to lock me up and call me a murderer for defending my wife and family against such savagery, then let it be so.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Michael Osborne
    February 21, 2013 at 13:48 pm

    Yes. It is exactly the same tactic – just we don’t have senior leaders and politicians running around singing “rape the female”, nor advocating for a Armageddon to be perpetuated against women nor blaming them for each and everything that is wrong in the country.

  • Mikhail Dworkin Fassbinder

    What I have learned is that is is vital to RACIALISE and POLITICIZE absolutely everything. In South Africa (but apparently not necessarily certain other countries,) everything is a CONSTITUTIONAL question and everything is also a POLITICAL question. As Professor Derrida teaches, there is nothing outside the [text].

    Thanks.

  • Michael Osborne

    Zooks, I do not know whether you saw that I responded elsewhere to you on the gun control thread. In the meantime, I just saw a stat that lends more support to your cause than fantasies about the needs to have big guns (and nukes?), at home to fight a notional future tyranny. In the US one hears a lot about the terrible risk of having a gun at home, because kids accidentally shoot themselves or each other. Yet, according to Daniel Levitt, the figures show that mortality risk posed by swimming pools are about 100X greater than the risk posed by guns.

  • Zoo Keeper

    MO

    I haven’t seen your response, will go and have a look and see!

    Yes, I have seen that figure. Its quite staggering!

  • Gwebecimele
  • http://www.ozoneblue.co.za/ Ozoneblue

    Gwebecimele
    February 21, 2013 at 16:30 pm

    Good link.

    “Looking back on our long and adventure-filled ten years, I feel that it’s often the process, not the end-result, that delivers the true benefits. That it’s the engagement that matters – the attempt to connect, emotionally and practically. That’s the point, I think, Jay Naidoo was trying to make.

    But to start that engagement, and then to follow it through authentically… well, everyone involved has to take enormous risks. We have to risk our own hearts.”

    I posted a suggestion some time ago that young middle/upper class South Africans should be drafted into a national service project and spend at least one year of their lives working together on social projects in the townships and rural areas. I can recall you shot that idea down like a lead balloon, preferring a socalled “white tax” instead.

  • Anonymouse

    Zoo Keeper – if your paranoid lookout on things spreads throughout this country, we will end up with people (hopefully legal gun owners) shooting left right and centre, just because we do not know whether the guy approaching me is a big bad wolf in disguise. Isn’t that just a recipe for anarchy?

    Oscar saw the bathroom window was open, but no one in the bathroom, so, whomever was there must have locked him / her or themselves (you visualized three robbers at one time if I remember correctly) in a small toilet, because he / she / they are obviously afraid of being discovered by a guy with no legs shouting at them (what he shouted, if he did – he never said). Now, just to make sure they aren’t a bunch of uglies – he starts shooting off, not once, but four times, to make sure that, if he had hit someone, that someone stays hit before he takes further action. Ooh – you make me laugh

    No-exceptional-circumstances-for-Oscar-bail-Nel-20130221

  • Gwebecimele

    OB

    You are wrong I never supported “white tax”. As for national service you might be right, I wouldnt support it.

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    Anonymouse
    February 21, 2013 at 16:54 pm

    Doc,

    ZooKy cannot be serious about that stuff he wrote – it’s as silly as people being allowed to keep nukes for protection.

    Anyway re OP – not much of what he says makes sense.

    And not much of what many people are saying in support of him makes sense.

    There’s just the dead woman and the bereaved family (who have conducted themselves with the utmost dignity)!

  • http://www.ozoneblue.co.za/ Ozoneblue

    Gwebecimele
    February 21, 2013 at 16:59 pm

    Why won’t you support a national service, if I may ask. I thought we are facing a sort of national crises – all of us together.

  • Zoo Keeper

    Mouse

    Please don’t reach for the glib remarks just yet.

    What I said was, what if there were genuine intruders there?

    Must OP wait until they burst out of the bathroom until he shoots, or can he take pre-emptive action.

    We’re talking about an invasion right into one’s ensuite bathroom – not shooting anyone who looks at you askance!

    Answer the question instead of deflecting: What if a bunch of armed thugs were on the other side of that door?

  • http://www.ozoneblue.co.za/ Ozoneblue

    Zoo Keeper
    February 21, 2013 at 17:37 pm

    “Answer the question instead of deflecting: What if a bunch of armed thugs were on the other side of that door?”

    Armed thugs? Paranoid [racist] people like you aught to know that kind of thing never happens in South Africa. They usually carry pangas and machetes as well.

    You know the answer by now – call the cops, the security, some friends and pray – pray very hard.

  • Mikhail Dworkin Fassbinder

    @ OzoneBluet

    “[if attacked in one's home one should] – call the cops, the security, some friends and pray – pray very hard.”

    Thanks Ozone, for your thoughtful advice in answer to Zoo’s question. If fact, just the other day I was trapped in my study by a pack of marauding intruders. Just as you advise, I called the cops — who arrived within minutes. But it was too late – for the robbers. Answering my fervent prayers, the Lord had already SMITE the evil-doers with a heavenly bolt!

    Thanks very much [to God]

  • MakeItSo

    After reading everything above I feel I should comment…
    OP is not a meek and weak person. He is a man who managed to qualify for the Olympics. He is most likely fitter and more able than many middle aged men in this country. He is not a bedridden man who could do nothing but crawl on the floor to investigate and then shoot because in that position even a medium size dog could be life threatening just by running into you
    What were his options?? How about grab the gun and keep it pointed at the passage while waking his partner and putting on his legs then leave the house while phoning security? After all he could not see into the bathroom and therefore had no idea how many heavily armed criminals were waiting there.
    Just a thought…

  • Dmwangi

    @OB & Gwebe:

    Good question. I support meaningful national service.

    “Ozoneblue
    February 21, 2013 at 17:31 pm
    Gwebecimele
    February 21, 2013 at 16:59 pm

    Why won’t you support a national service, if I may ask. I thought we are facing a sort of national crises – all of us together.”

  • joeslis

    Fassbinder -

    “… the Lord had already SMITE the evil-doers”

    That’s SMITTEN, mate. SMITTEN! Don’t you ever proof-read?

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    February 21, 2013 at 18:15 pm

    Dworky,

    “Thanks very much [to God]”

    No need to thank me.

    I’m just doing my bit for you mere mortals!

  • andre

    Quite correct Prof. If I may add, grounds for in s 60 (4) (e) are: whether ordinary people will be outraged, will this rage lead to public disorder, whether an agrieved person may try to get to him and joepardize his safety(in this country, ag I don’t know), and whether the sense of peace among ordinary people will be undermined (Anene, the poor child comes to mind), and crucially if he is granted bail, will this undermine Nair’s court. These very reasons may also undermine/prejudice OP’s case. My money is on no bail granted since the level of crime – again Anene comes to mind – is just too high.

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    Dmwangi
    February 21, 2013 at 18:42 pm

    DM,

    “Good question. I support meaningful national service.”

    I hear Kenya is needing extra national service men and women (given some of the threats expected during the elections) – you really should apply for both positions.

    You could use your talents effectively – if you talk kak to Al Shabab like you do here, they will run away forever. #JustSaying!

  • Brett Nortje

    You are so devious, Maggs! All the brouhahaha above just to get me to retell the story how my Tanfoglio TA90 saved my dad’s life and how my brother in law Jaco saved his brother, girlfriend, little girl from a home invasion (in which the robbers laughed in Danie’s face when he pointed to the phone against his ear and mouthed p-o-l-i-c-e then proceeded to break down his French door with a pick…)

    Remember, Jaco fired a couple of shots into the ground behind the home-invaders and they ran?

    Maggs Naidu -Shit happens! (maggsnaidu@hotmail.com) says:
    February 21, 2013 at 10:40 am

  • Brett Nortje

    Dr Mouse, hindsight being 20/20, the state having a conviction rate of less than 1% in trio crimes and 2,7% in cases of rape, with 400 000 out of 500 000 unsolved, untried murders since democracy do you not think the time is right to reappraise the judicial fraud in Makwanyane?

    Anonymouse says:
    February 21, 2013 at 12:01 pm

  • Mikhail Dworkin Fassbinder

    @ Joeslis

    With respect, you are wrong. If you had seen their mangled limbs, their charred flesh, you would have known that these interlopers were not so much SMITTEN with the Lord’s love as struck a mighty blow in his righteous vengeance.

    Thanks.

  • Ze Philosopher

    Chris-Note in criminal law the word “Intention” is slightly a technical term that has different meaning to what a lay person would understand it to mean, hence Gerrie Nel is sticking to his guns it was pre-planned by Oscar. Further, point of correction my learned friend, he does deserve to be charged with Murder as his actions give rise to Dolus Eventualis. Even though his main aim was to avoid being robbed or preventing harm, he realised that in order to achieve his main aim, there was possibility that he may kill, and was reckless as to whether or not this does in fact happen, then he should be regarded as having had legal intention coz Reeva died. I think he subjectively foresaw the possibility that in achieving his main aim, the unlawful act may result and he was reckless as to whether or not the unlawful act may be committed. In S v Rebede- Musi said Dolus Eventualis or Legal Intention is present when perpetrator objectively foresees the possibility of his act causing death and persists regardless of the outcome, suffices to find someone guilty of murder. Further we have to note that necessity is not justifiable in our law if an innocent life was lost. Therefore I am of the view OP acted with intent when he took his gun and shot at the alleged burglar 4 times. Bear in mind that Intention in our law has gradually been extended to cover not just deliberate, but also foreseen conduct. Given his version that he thought there were intruders in his house, he may just as well fall with his own sword because his statement rings of intention to shoot the intruder. Like Gerrie Nel says “There were two people in that house on that fateful night, one is dead and the other is the accused. We shoudn’t really be delving into “What If” bcoz it is the cold facts that matter now. The only issue we are ought to question ourselves on is his “Direct State of Mind” at that hour, minute and second. Big ups to Prof De Vos again on a wonderful piece.

  • http://www.ozoneblue.co.za ozoneblue

    Or avoid being killed i.e. self-defence, since if his story is true had it been armed robbers he and his girl friend may both have been very brutally raped, tortured and murdered much like that Walkerville family. Just remind us again what sentence did those savages get?

    That is right – nobody gives a fuck, their brutal deaths didn’t even make it this blog.

  • http://www.ozoneblue.co.za ozoneblue

    @mfd

    It is big joke aint it. Belief in God aside, what my dear pappa also said – what goes around comes around some fine day when you least expect it.

  • Chris

    Ze Philosopher
    February 21, 2013 at 21:50 pm

    Remember, my post is not about what the judgement should be – that would be premature – but what it would be if Oscar’s version is accepted. Consciousness of wrongfulness is an element of intention in all its forms. Oscar’s own version is that he did not have any consciousness of wrongfulness. A court may find differently, but then Oscar’s version is also rejected.

  • Dmwangi

    @Maggs:

    I hear India is needing extra national service men and women (given some of the threats expected during the ongoing rape season) – you really should apply for both positions.

    You could use your talents effectively – if you talk kak to your rapist mates like you do here, they will run away forever. #JustSaying!

  • Paul Kearney

    @M Ozzie Osbourne; “Yes, and blacks are overwhelmingly the victims of violent crime. That does not stop some from politicizing crime, and claiming a select GENOCIDE of whites.”

    Yes and black people make up “overwhelmingly” the majority of the population in SA. Are you are genius?

    Tell us about the US maybe or some context.

  • Michael Osborne

    @ Paul Kearney

    You need be no genius to understand that I meant that black South Africans are disproportionately more victimized by crime than others — meaning that the per-capita mortality rate of deaths is higher for blacks than for other groups. One example: the Medical Research Council, in its investigation into female homicide rates in South Africa , used national mortuary data to determine that 2,8 of every 100 000 white women die as a result of murder, whereas 8,9 Africans do. (S Mathews et al, A National Study of Female Homicide in South Africa, MRC Policy Brief 5, 2004.)

    You ask specifically about the US. Same pattern emerges. Blacks make up 13% of the population, yet account for 50% of murder victims.

    (http://www.washingtonpost.com/wp-dyn/content/article/2007/08/09/AR2007080901964.html)

  • http://www.ozoneblue.co.za ozoneblue

    So we have a CIO who is up for murder himself. What a fucking surprise in a country who appoints criminals and crooks as police commisioners.

    Oh the terrible crime problem. The Walkerville trio – sentence [indefinitely?] “postponed” 6 months ago with no more public interest or news. This is the kind of society we are living in now. It is a very, very sick society – no doubt.

  • Pingback: Oscar Pistorius and the Granting of Bail

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    Michael Osborne
    February 22, 2013 at 9:04 am

    Thanks Prof!

  • Dmwangi

    @Maggs:

    It is hugely inappropriate for you to be violating the sovereignty of PdV’s blog by participating here prior to sorting out India’s problems.

    And please tell your cousin Dewani that since mental illness runs in the family, you’ll pick up his legal fees.

  • Zoo Keeper

    MO

    I can’t find your reply to our nuke debate – where did you post it?

  • bob

    The fact that the fat cows from the ANCWL dance in front of the court house or that a minister has enough time to sit through a bail hearing makes you think about how politisised a simple shooting case is.

    Oscar had a valid license and decided to shoot somebody, he admited to that. It does not really matter if that had been a treaspasser or his girlfriend. In both cases it is murder.

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    Dmwangi
    February 22, 2013 at 9:31 am

    Aww Dm,

    That’s not kind.

    I’m such a nice guy.

  • spoiler

    There are so many more reasonable steps that OP could have taken had he genuinely believed he was in imminent danger as pointed out already.

    Here’s a comparable scenario. Unlike OP I have actually had 2 burglars/robbers attempt to enter my home via a stoep door in my young sons room. I awoke, went to see what the noise was and caught them in the act, still trying to open the door which remained locked because of extra barrel bolts I had installed. They had already broken the key lock and had rucksacks and tools with them, no doubt some of them sharp.

    I shouted very loudly at the burglars and they took flight. I shudder to think what would have happened had they got in. I could have fetched a weapon and shot at them and would have done so had they been about to enter the house, but before I did that I could have retreated and locked my sons door – he wasnt in the room at the time, triggered the alarm, locked myself in my own room with my son, and then they were on the other side of a still locked door retrieved my firearm, to be used as a last resort if they attempted to gain entry to my room.

    The difference between my situation and OP’s was I could see they were indeed criminals on my property and trying to enter with evil intent. The last thing I want is a dead body in my house unless I have no other option.

    Oscar also had options but simply blasted shots through a locked door…..

  • Chris

    News24 reports: “11:38 – Nair has two bodyguards standing either side of him in court, says Alex Crawford.”

    Made me think of an incident I read about once, where the attorney asked the magistrate: Are you a magistrate of a clown?

  • Anonymouse

    Zoo Keeper

    February 21, 2013 at 17:37 pm

    “Mouse

    Please don’t reach for the glib remarks just yet.

    What I said was, what if there were genuine intruders there?

    Must OP wait until they burst out of the bathroom until he shoots, or can he take pre-emptive action. …”

    Definitely not – especially if the reasonable (even paranoid) person in his position would have first considered why an ‘intruder’ having accessed the bathroom through an open window would have gone into a 1.4×1.4 toilet and closed the door. He could then have positioned himself nicely / defensively behind the corner of tthe bathroom (see the plans) and, if an ‘intruder’ then responded to his challenge, with a gun (or even a knife) in his hand – he could easily have fired one or two shots (so as not to over kill) – he is a good shot, remember.

    See also Gerrie Nel’s address earlier this morning – remarking it strange that a paranoid man like Pistorius would leave open the door, the balcony and the bathroom window, well knowing that the previous day ladders and scaffoldings (not proven) were left there by contractors. The facts, as far as I am concerned, do not support the ‘what if’ question you posed. Neither do the probabilities favour it. There are serious aspects in Pistorius’ version which was left untested because he elected not to testify viva voce, but by presenting an affidavit to court, which cannot be cross-examined.

    But – in any event – there is simply no room for the ‘what if’ debate here – it wasn’t an intruder, it was Reeva Steenkamp – that’s it. But even if the ‘what if’ debate had any relevance, before he coulld be allowed to take pre-emptive action, he must be certain that it is necessary, otherwise his action is unlawful.

    ……………………
    Brett Nortje

    February 21, 2013 at 21:32 pm

    I indeed think that makwanyane should be re-visited. But the CC judges will not do so, even on application by the NPA, Solidarity, Afri-Forum or whomever. They will only really consider it if Parliament considers amending section 11 of the Constitution of the RSA to something like:
    “Everyone has the right to life, provided that the state has the right to carry out a death sentence on a convicted person which has been imposed by a competent court of law after a fair hearing, and after all remedies of appeal and petitions for clemency have been exhausted.” And then the Criminal Procedure Act will have to be changed so as to prescribe in which circumstances the death penalty could be considered or must be imposed. There should also ideally be safety catches such as that a court imposing a death sentence must be constituted of at least one presiding judge and two legally trained assessors; that an automatic right of appeal exists to the Full Bench (at least 3xjudges) and to the SCA (at least 5xjudges); and that there is also an appeal to the Constitutional Court Full Bench (11 judges).

    But – such amendment would require a two-third majority in Parliament, which I don’t think will be mustered; and, I am not convinced that, currently, we really have enough (competent – mind you!) judges who will impose the death penalty when called upon to do so in terms of a specific law. I think the answer to your question will remain a ‘far-fetched dream’ for some time to come yet.

  • Chris

    Anonymouse says:
    February 22, 2013 at 11:57 am

    I see Barry conceded that Oscar acted unlawfully, and rightly so.

  • http://www.ozoneblue.co.za/ Ozoneblue

    “I awoke, went to see what the noise was and caught them in the act, still trying to open the door which remained locked because of extra barrel bolts I had installed. They had already broken the key lock and had rucksacks and tools with them, no doubt some of them sharp. I shouted very loudly at the burglars and they took flight. I shudder to think what would have happened had they got in.”

    So in other words you knew how many burglars there were, you knew they didn’t carry a gun, you had the option to lock yourself in, you had legs to run. If you take Oscar’s version of events at face value, none of that seems applicable – if you give him the benefit of the doubt, he didn’t know how many intruders there were, what kind of weapons they carried and exactly how soon they would burst through that door.

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    OK – I reckon that he’s not gonna get bail.

    Who’s up for a wager.

    A Streetwise Two is on the table!

  • http://www.ozoneblue.co.za/ Ozoneblue

    Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)
    February 22, 2013 at 12:33 pm

    No shit sherlock. The ANCWL are picketing outside.

  • spoiler

    OB – thats one way of looking at it – but, as others have said he still had other options available to him, before blindly using deadly force.

    MN – you are on- I say he will get bail – if not he will appeal.

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    spoiler
    February 22, 2013 at 12:53 pm

    Hayibo Spolier,

    Now you’ve spoiled the wager.

    It’s on whether or not he get’s bail.

    I say no – do you say yes?

    p.s. We’ll double or nothing if there is an appeal!

  • Brett Nortje

    It’s called an ‘each-way’ bet.

  • Brett Nortje

    What ZooKeeper is getting at is a ‘castle-doctrine’ law of the kind gaining favour all over the world where people have seen their families sacrificed at the altar of the ‘progressives” bemoeisiekheid.

    Ozoneblue says:
    February 22, 2013 at 12:24 pm

  • Zoo Keeper

    Thanks Mouse, very informative as always.

    I had posited a hypothetical situation for answer which seems to have been forgotten. The “what if” is important because it informs principle.

    Hypothetically I put Reeva safely in bed and OP faced with noises coming from his toilet. He checks she’s there and makes sure she’s not in his line of fire. His other doors and windows are secure. He has acted reasonably at all times up to this moment.

    I say this to remove the anomalies of the real case so we aren’t dragged back there.

    In this hypothetical situation, there are three of SA’s most brutal rapists and murderers who have just climbed into the toilet and are gathering themselves for their Blitzkrieg. They have broken in through the toilet window and intend to torture, rape and kill. They are armed with firearms and knives.

    Now, must OP wait until they open the door and come out guns blazing, or can he take pre-emptive action and fire at the door?

    The hypothetical situation ends in one of three ways:

    1. OP shouts out “who’s in there?”, they shoot through the door and kill him. They then proceed to do the worst to Reeva who does not survive either.

    2. OP fires into the door killing all three and saves the day.

    3. OP waits, they burst out shooting and he shoots back. I’ll give OP the benefit and he kills one, wounds two. He is seriously injured and his athletics career is properly over – lets say its a spinal wound. OP is then charged with murder.

    I take it then the following is the result:

    1. Police investigate the double murder and rape and we all mourn the loss of two celebrities;

    2. OP is prosecuted with murder and sent to jail for 15 years.

    3 OP might be able to raise a defense of self-defense and is freed. He is paralyzed and has a record of a murder charge on his criminal clearance which precludes him from traveling to many countries.

    Is this the correct interpretation of law of self-defense?

  • Brett Nortje

    How many perpetrators are not black?

    Michael Osborne says:
    February 22, 2013 at 9:04 am

  • Michael Osborne

    @ Brett

    “How many perpetrators are not black”

    Brett, I would hope you do not attribute to me the politically correct mythology that would deny that perpetrators are also disproportionately black. I abjure that, just as I reject the right-wing mythology that whites are per capita more subject to murder. It seems to me that both sides of the debate exploit crime to advance their ideological objectives.

  • spoiler

    Zook thats a seriously dramatized interpretation – had OP acted as you say and waited for them to attack, killing or injuring them in the process, I doubt he would have been charged with murder at all – and thats not what Anon was saying as I understand it. He would have been acting in self defence and the killing would have been lawful in those circs.

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    spoiler
    February 22, 2013 at 15:15 pm

    You have 30 seconds to back off and beg for forgiveness!

  • Zoo Keeper

    Spoiler

    It is a dramatized version to illustrate a question for Mouse to answer.

    Mouse knows his criminal law and I’d really like it if he could clear it up for me. It looks like I may have misunderstood a few things along the way so I would appreciate being corrected.

  • Maggs Naidu – Iyoh! (maggsnaidu@hotmail.com)

    Ok Spoiler – you’ve earned your SWII.

    Lemme know where and when!

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Muslim ‘killer’ refused bail

    The Krugersdorp Regional Court denied bail to murder accused Roedolf Viviers on Tuesday.

    “The applicant failed dismally to prove to this court that it would be in the interest of justice to release him on bail. Bail is therefore denied,” said magistrate Reginald Dama.

    Viviers and another man, Zayne van Tonder (33), allegedly insulted Muhammad Fayaaz Kazi and his friend Anser Mahmood about their beards at a Chicken Licken outlet in Magaliesburg on 6 August 2012.

    An argument and a fight ensued. Kazi was severely beaten and died in hospital.

    Charges against Van Tonder were later dropped and he was released.

    Kazi’s brothers Mohammed Nuaman (22) and Mohammed Farhan (18) shouted “Praise Allah” when Dama made his ruling.

    Kazi’s widow Sajidah sobbed and hugged friends and relatives who packed the public gallery.

    Viviers, who was wearing glasses, a blue shirt and khaki pants calmly listened to Dama. He looked at his feet when he was led to the police cells.

    He will appear in the High Court in Johannesburg on 4 March, when a trial date is to be set.

    http://news.iafrica.com/sa/844918.html

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