I would tentatively suggest that we are witnessing the first signs that the category of the transsexual might one day, as the ultimate act of emancipation, abolish itself. In ‘Women’s Time’ (1981), Julia Kristeva argued that feminists, and indeed the whole world, would enter a third stage in relation to sexual difference: after the demand for equal rights and then the celebration of femininity as other than the norm, a time will come when the distinction between woman and man will finally disappear, a metaphysical relic of a bygone age.
Many people have been treating the bail hearing of Oscar Pistorius as if it were a trial, jumping to conclusions about whether he will be found guilty of murder based on the (often untested) allegations made by both sides at this hearing. But those who think they know what the outcome of this trial will be, are probably still going to change their minds several times before the trial is over. The only thing we can be relatively certain of is that specific legal principles will play a decisive role in this trial. It might be helpful to familiarise yourself with these principles before pontificating on the outcome of the trial.
Based on the version of events provided by Pistorius and his lawyers at the bail hearing, the disputed element of the crime will be fault. You can only be found guilty of murder if you unlawfully and intentionally killed another person. You can be found guilty of culpable homicide if you unlawfully and negligently killed another person.
There is no dispute that the killing of Reeva Steenkamp was unlawful as it would be impossible to argue that Pistorius acted in self-defence (or private defence, as it is known in law). You can only rely on self-defence to exclude unlawfulness if an attack on your life (or the life of another), on your property or other similar interest has commenced or is imminent. This is an objective test, so where no attack actually occurred, one cannot rely on self-defence to justify the killing of another person, which you thought was necessary to defend yourself. No such attack occurred or was imminent in this case. (Whether the common law should be developed in line with the values in the Constitution to restrict the right to kill others in defence of your property, is an interesting question, which I cannot discuss here.)
The question then is whether the accused had the requisite intention to kill another person. Intention must not be confused with motive. The person’s motive is the reason why he acted in the manner he did and is usually thought of as irrelevant for determining guilt. Motive can explain why an accused formed the intention to kill another person, but is separate from that intention.
The state can prove the direct intention by proving that the accused actually meant to kill the deceased. Evidence that the accused and the victim were involved in a stormy argument before the killing or that the accused had previously threatened the life of the victim could be important.
The state can also prove intention via the concept of dolus eventualis. This form of intention exists where the state can prove that while the accused might not have meant to kill the victim, he nevertheless foresaw the possibility and nevertheless proceeded with his actions. “Jub Jub” Maarohanye and his co-accused Themba Tshabalala were convicted of murder on the basis of dolus eventualis as the court found that they foresaw that their reckless driving in a built up area might lead to the killing on innocent bystanders.
Forensic evidence about the trajectory of the bullets and the other evidence at the crime scene could be important — especially if this contradicted the version of events put up by the accused. No such evidence has been led at the bail hearing.
In a case where the state has proven that an accused had shot and killed another person in his house in the absence of an attack on his life or property, it would be difficult to escape conviction for murder unless the accused is found to have acted in putative self-defence. Where an accused is found to have genuinely believed that his life was in danger and that he was using reasonable means to avert an attack on himself or his property, he may escape conviction for murder on the grounds that he lacked the requisite intention.
As intention is tested subjectively, the pivotal question would be what the actual state of mind of the accused was at the time when he killed the victim. If an accused genuinely but mistakenly believed that an attack was imminent or that his life was in danger, the court will find that he lacked the intention to be convicted of murder.
An interesting case in which this issue came up was that of S v De Oliveira in which the then Appellate Division had to decide whether Mr De Oliveira, who shot and killed a man in the driveway of his house, genuinely (but wrongly) believed that he was acting in self defence and therefore lacked the intention to commit murder.
Mr De Oliveira had not testified as to his state of mind at the time of the shooting. Because he did not testify the court had to rely on other evidence that could reflect on his state of mind. It commenced from the premise “that no reasonable man in the circumstances in which the appellant found himself would have believed that his life or property was in imminent danger”. Reading between the lines, and taking note of the rather racist references in the case to “black men” as the victims of this crime, Mr De Oliveira might well have killed the victim in his driveway because was black and he harboured racist views about black people.
In any event, as there was no evidence of any noise of glass breaking coming from inside the house, and as the evidence of other witnesses suggested that the victim was not close to the house, the court concluded that Mr De Oliveira could not have acted in putative private defence. Even though the trial judge held that Mr. De Oliveira had “a marked dullness of intellect” and had “not been blessed with more than a comparatively low level of intelligence”, the court could not find that this alone would indicate that he genuinely believed that he acted in self-defence because the accused did not himself testify in his own defence. In the absence of personal testimony about his state of mind:
One would normally impute to a person in the position of the appellant (in the absence of any evidence by such person as to his state of mind at the relevant time) a state of mind akin to that of a reasonable man. In a given case, however, proved facts or circumstances may exist which would justify a different conclusion. In the present instance there are none…. Even from someone with the appellant’s limited intellectual capacity one would prima facie not expect a reaction different from that of the reasonable man, having regard to the particular circumstances of the present matter. In the circumstances there was prima facie proof that the appellant could not have entertained an honest belief that he was entitled to act in private defence. The appellant failed to testify as to his state of mind and to refute this prima facie proof. His silence must weigh heavily against him.
The De Oliveira case suggests that if the state could make out a prima facie case that a reasonable person in Oscar Pistorius’s position could not honestly have believed that he was acting in self-defence, that a defence of putative self-defence would not easily succeed unless Pistorius himself testified as to his state of mind.
If this defence of putative private defence succeeds, that would not, however, be the end of the matter. A court could still find that a reasonable person would have foreseen that his actions would have caused the death of a person and would not have proceeded with his actions despite foreseeing the consequences. In such a case the accused can be convicted of culpable homicide. In other words if a court finds that a reasonable person would not have proceeded with the conduct, then he would be found guilty of culpable homicide.
As I pointed out at the start, it is rather nonsensical from a legal point of view, to speculate at this point whether Pistorius will be found guilty of murder. None of us know. This is not going to stop people speculating about his guilt or innocence, but such speculation might have to do more with the morbid fascination of people with the case than with any legally responsible analysis.BACK TO TOP