It is important to understand that the prosecution team in the Oscar Pistorius ( Oscar’s) trial bears the onus to prove Oscar’s guilt beyond any reasonable doubt. As a result of bearing the onus, the State will start by calling witnesses in order to lay the basis for a conviction on either premeditated murder or murder.
Before calling any witnesses the proceedings will start by the prosecution team putting all the charges to Oscar Pistorius so that he could plead to these charges. It is expected that he will plead ”not guilty” to all the charges and he may then briefly set out the basis for his defence on each count. He may, of course, remain silent and not disclose any version whatsoever, if he so wishes.
Once he has pleaded the judge presiding over the matter will record his plea and ask whether he confirms the version as was presented by his legal representative. Once that is done both parties, i.e. the prosecution team and the defence team, will have an opportunity to address the Court on what they seek to prove and disprove during this trial. It is important to note that during these preliminary stages Oscar Pistorius will not speak directly to the court other than stating what his plea is as his advocates are specifically there to represent him and to speak on his behalf.
The prosecution team will thereafter call various witnesses. Oscar’s defence team will cross-examine every witness that is called to testify and usually they will only have one opportunity to do so. There are however exceptions to this rule. During cross-examination of the witnesses, the defence will attempt to specifically identify discrepancies in the witnesses’ evidence and they may, of course, elicit evidence which might be favourable to the accused. If the evidence is damaging to the accused the defence will attempt to discredit the witness or they may attempt to soften the effect of the evidence. Oscar version relevant to that specific witness has to put to the witness for his/her comment and the prosecution team could use that version to later cross-question Oscar’s witnesses.
The Prosecution team i.e. the State will then close their case and by that is it understood that they will not call any further witnesses on the merits of the case. It is often referred to on TV as the State “rests”, but in South Africa, the parties close their cases. Once the prosecution team has concluded all the evidence, then, of course, the accused will have an opportunity to present his case.
In his defence, he can, of course, testify himself but he can also call witnesses. In this instance, we are of course aware of the fact that there are various witnesses that the defence team will call and once they have adduced all their evidence, the prosecution team will equally have an opportunity to cross-examine every witness the defence team calls. Once the defence has called all their witnesses and adduced all the evidence, they will then close Oscar’s case.
Once the defence case is closed, both parties i.e. the prosecution team and the defence team will now have an opportunity to address the Court on the liability of Oscar Pistorius and whether he ought to be convicted of any offence. The judge will thereafter interact with both parties during the addresses whereafter the Court will schedule a date on which the judgment will be made known to the Accused. The judgment will, of course, be handed down and once the judgment is known, should he be convicted, then, of course, the sentencing proceeding starts. In the event of Oscar Pistorius being convicted of any offence, the defence team will then have an opportunity to adduce evidence in mitigation of sentence. This will mean they might call correctional officers to testify or criminologists or probation officers or maybe just character witnesses. Equally the prosecution team will also thereafter have an opportunity to adduce evidence which they believe might assist the Court in imposing a heavier sentence. Once all of that is completed, the judge presiding in the matter will then consider all the factors but the judge alone will hand down sentence in this matter.
Since 2010 when Anni Dewani was murdered whilst on honeymoon in South Africa, the South African authorities have investigated her husband, Shrien Dewani, in connection with the murder and the authorities have attempted to extradite him from the United Kingdom to South Africa to stand trial inter alia on a charge of murder.
On 24 July 2013, it was reported that a UK Judge had ordered that Shrien Dewani be extradited to South Africa and in the public domain it was speculated what would actually happen to him upon his arrival in South Africa.
Our commentary herein specifically deals with our assessment of the sequence of events after his arrival in South Africa.
It is important to understand that Shrien Dewani will most probably exhaust all appeal processes in the United Kingdom and only once that has been exhausted, will he be extradited to South Africa.
An arrest warrant was previously authorised by the South African courts so upon his arrival in South Africa, he will be met by the South African authorities at the airport.
He will then naturally be taken into custody and he will stand trial for the murder of Anni Dewani in Cape Town.
It is important to note that he will remain in custody until such time as he applies for bail and the Court will only grant him bail if he is able to satisfy the criteria of “exceptional circumstances” at his bail hearing.
The reason why he has to satisfy this criterion is based on the fact that he is facing a schedule 6 offence, i.e. premeditated murder and as a result of this he has to prove the existence “exceptional circumstances” before the court could permit his release on bail.
Everybody is well familiar with these criteria as it is the same criteria that applied to the murder matter in which Oscar Pistorius was charged.
The difference between these two murder matters is, of course, the fact that the co-accused of Shrien Dewani has already been convicted of the said murder and the court found that there was premeditation.
It is to be doubted whether there will be any debate as to whether Dewani is facing a schedule 6 offence or not.
One of the main issues therefore which will be debated in Court would be whether Shrien Dewani would be able to satisfy these criteria.
“Exceptional circumstances” is of course very difficult but not impossible to prove in our Courts.
Typically most criminal defence attorneys would argue the weakness of the State’s case would amount to “exceptional circumstances” or an accused’s state of his mental health.
Shrien Dewani’s involvement with the convicted murderers of Anni Dewani shortly before and after murder will be key to any court finding exceptional circumstances or not.
Of course, it is an open question as to whether he would be able to satisfy these criteria or not, but we have little doubt that the State would oppose any bail application.
Once the bail process has run its course the trial will commence in the Cape Town High Court and if convicted he would possibly face Life Imprisonment i.e. 25 years in jail before being eligible for parole.
Just about every weekend there are reports in the media of people who were arrested on the freeways around Gauteng and other main cities for speeding.
People often argue that should they travel early in the mornings, they would not be arrested for speeding, because Metro Police officers do not work that early in the morning.
These people are usually arrested and they often phone our office really concerned about whether they would go to jail for speeding or what sentence would be imposed.
Of course, the sentence varies from one matter to another, but it is interesting to see what our courts say about this.
In State v Joseph 2013 (1) SACR 183 (South Gauteng High Court, Johannesburg), the issue of speeding fines were considered.
In this instance, Mr. Joseph had exceeded the speed limit by 42km/h by traveling at a speed of 102 km/h in a 60km/h zone.
The Magistrate imposes a fine of R8 000.00, alternatively 12 months imprisonment of which half was suspended for a period of 5 years on certain conditions.
These conditions inter alia also included that Mr. Joseph performs 80 hours of community service.
In considering this matter the High Court found that the sentence was excessive and more specifically in light of the fact that Mr. Joseph was unable to pay the fine.
They found that the Magistrate’s sentence was wrong and that it displayed a clear misdirection on the Magistrate’s part.
The Court set the sentence aside and substituted the sentence with one of R4 000.00 or 6 months imprisonment and the issue of community service was substituted by an order that he attend a Nicro Adult Life Skills programme.
It is a common practice in many Courts that when an accused person who is in custody, is brought to Court that he is brought to Court in restraints.
These cuffs are usually placed around the ankles of the accused and are usually kept on for the duration of the hearing.
The purposes of these restraints are to of course prevent the accused from fleeing as he would not be able to do so with the restraints around his ankles.
This, of course, has been an issue of contention over many years as our Courts have often felt that if a person is brought to Court in restraints, it creates the perception that this person is already been sentenced and he could easily be viewed by witnesses as having been convicted.
It can of course also negate the accused right to a fair trial.
The issue was raised in State v Khubeka 2013 (1) SACR 257 (GNP).
The Honourable Judge Bertlesman went so far as to say that the court would impose fines on correctional officers for being in contempt of court if prisoners are brought to Court in leg irons.
The Judge remarked that in future he will not hesitate to impose fines if the Court held that bringing the accused into Court in leg irons was contemptuous.
This the Court would only do if it had repeatedly admonished the correctional officers for disregarding this clear directive not only from the local Magistrate but also from our Supreme Court of Appeal.
The Honourable Judge felt that this conduct by the officers clearly bordered on a constitutional issue if it was not remedied immediately
It is a known fact that whenever a person is convicted of driving under the influence of alcohol or driving a motor vehicle whilst the level of alcohol in his blood exceeds the statutory limit, his licence is automatically suspended for 6 months unless the Court finds reasons to deviate from such a suspension.
In State v Botha 2013 (1) SACR 353 (ECP) the Honourable Justice Revelas and Justice Tshiki considered this issue upon review.
The crux of the matter can be summarised as follows.
The accused was a 33 year old female and she was convicted of driving a motor vehicle on a public road whilst the alcohol in her blood exceeded the statutory limit and she was accordingly sentenced to a fine of R5 000.00, alternatively five months imprisonment.
At the time when the sentence was being considered, the trial Magistrate raised with the defence the issue of the provisions of Section 35(1) of the Act that deals with the automatic suspension of a driver’s licence.
The legal representative representing the accused advised the Court that she was not going to call the accused to testify but was merely going to address the Court on the issue of the suspension of the licence.
The Magistrate thereafter ordered that the licence not be suspended for a period of 6 months.
When this judgment was considered by the Senior Magistrate in the same Court building where this Magistrate made the ruling, he felt it necessary to refer this matter to two judges for Special review as he felt the decision by the Magistrate was clearly wrong.
The Chief Magistrate was of the view that an Act requires that evidence be placed before the Court in order to persuade the Court to deviate from the automatic suspension and if no evidence is placed under oath before the Magistrate, the Magistrate may not deviate from it.
The Honourable Judges found that in the circumstances the Act was peremptory and there was, therefore, a duty on the defence to have placed evidence under oath ie calling the accused to testify on this issue, before the Court was in a position to have made a ruling in this regard.
Because no evidence had been placed before the Magistrate, the Magistrate was therefore obligated to have suspended the licence for a period of six months.
The High Court thereafter ordered that the licence be suspended for six months.
The importance of this ruling lies in the fact that this issue is usually addressed by attorneys from the side-bar without putting oral evidence before the Magistrate and this ruling might result in attorneys having to reconsider the way they deal with this issue before a Magistrate in future.
Many people are of the view that what they write on Facebook, of course, has no consequences and accordingly they often make comments about individuals thinking that these platforms are safe to do so.
That is of course not true.
If any person makes comments about another person which are defamatory in nature, not only would that person be entitled to obtain an interdict to prevent that person from doing so, but of course it could also result in a damages claim being instituted against that person for injuring that person’s good name or reputation.
In Heroldt v Wills 2013 (2) SA 530 (GSJ) the Honourable Justice Willis considered granted an interdict in respect of defamatory statements made on Facebook.
The facts of this matter can be summarised as follows: Mr Heroldt sought an interdict against Mr Wills for posting a message on Facebook which was defamatory in nature.
Amongst other things, it also insinuated that Mr Heroldt was not looking after his daughters as he was either on alcohol, drugs or involved at the church.
He also made a comment that whenever Mr Heroldt looked at himself in the mirror he would most probably be in a drunken testosterone haze and questioned whether he was able to see the reflection of a man at all in the mirror.
Mr Wills and Mr Heroldt used to be very close friends and also business associates.
Mr Heroldt believed that these comments were defamatory in nature and he sought to obtain an interdict from the High Court to compel Mr Wills to remove these postings.
The Court found that the comments made by Mr Wills were unlawful and that the comments were to fair or in public interest.
After examining many authorities on the point, the Court ordered that Mr Wills remove all postings which he posted on Facebook and ordered him to pay for Mr Heroldt’s legal costs.
This clearly illustrates that one must be very cautious as to what one writes about other people on Facebook and Twitter.
It is a common occurrence in our Courts when that parties separate they often require domestic violence orders against one another.
These domestic violence orders usually prohibit or permit certain actions from either party and should these provisions in the so-called interdicts be beached, the aggrieved party would, of course, be able to approach the local police station for the offender to be arrested.
Our Courts have often expressed the view that such offenders should be appropriately punished.
In The Director of Public Prosecutions v Phillips, the Supreme Court of Appeal sent out a strong message to would-be offenders of such orders.
The facts of this matter can briefly be summarised as follows: In this instance, the deceased obtained a domestic violence order against her husband where after he kidnapped their minor son making threats that he would sodomise his own son.
This he did in the attempt to force the mother to withdraw charges against him.
Later during an incident between the mother and the accused, the accused stabbed the mother to death.
The Trial Court initially found that in the circumstances a sentence of 12 years would be appropriate for such conduct. One should keep in mind that whenever any person is convicted for murder it usually carries a mandatory sentence of 15 years imprisonment.
In considering the sentence, the Court found that there were a number of instances where people breached these domestic violence orders and that a clear message had to be sent out in this regard and accordingly the Court increased the sentence from 12 years to 18 years imprisonment.
People are often advised to pay admission of guilt fines after they had been arrested for some offence.
What people do not understand of course is that once their fingerprints have been taken by the local police station and they have appeared in Court should they then decide to pay an admission of guilt fine, they would, of course, get a criminal record against their names.
These criminal records will, of course, remain against your name for a period of at least 10 years or until such time as an application to expunge same is made.
The Western Cape High Court in State v Parsons 2013 (1) SACR 38 considered the issue of a person who had paid an admission of guilt fine and who was unaware of the implications of doing so.
The Court granted the application by the accused and set aside the admission of guilt on the basis that the person had not been properly advised that should he pay the admission of guilt he would obtain a criminal record.
That, of course, does not mean that the person is now scot-free.
What that means is that the person would now have to appear in Court afresh on the charges and would now have to contest the charges brought against him by the prosecution.
It is well-documented fact that since the late 1990s our courts have clamped down on white-collar crime.
As a result, people who perpetrate fraud are often handed down heavy sentences for the commission of a crime.
The perception that previously existed that criminals perpetrating fraud would be treated by courts with so-called gloves on, has long been dispelled by our High Courts.
A good example of this is the recent matter of State v Kwatsha 2013 (1) SACR 311 (Kwazulu-Natal High Court Pietermaritzburg).
A financial advisor working for a bank had been convicted of 37 counts of fraud involving more than R6 million.
The victims that were prejudiced by his conduct were all vulnerable poor people.
Whenever a person is found guilty of fraud in excess of R500 000 a mandatory sentence of 15years ought to be imposed.
Our courts have often deviated from this minimum sentence by imposing lesser sentences.
Mr Kwatsha sought to highlight the fact that he was a first offender and hence this fact justified the court in imposing a lesser sentence.
This was rejected by the court and he was sentenced to 15 years imprisonment.
This matter clearly illustrates that when it comes to white collar crime it does not pay.
It is quite clear from the numerous media reports and newspaper articles that the Oscar Pistorius trial has attracted attention never before seen in the South Africa legal system. It is in our view important to comment on some of the legal issues raised during the bail hearing.
1. BAIL IS NOT A PUNISHMENT
People often forget that the bail proceedings have no penal nature to it and it is not the first attempt by the prosecution team to sentence a person or to score points in the public perception. Sadly, it is often portrayed as such in the media. Whether Oscar was therefore granted bail or denied bail should never have been seen as a punishment of any sorts on the one side or as a stain on our legal system on the other side.
2. PREMEDITATED MURDER OR NOT
There was never any evidence produced during the bail hearing by the prosecution team, in our view, remotely substantiating an allegation that Reeva Steenkamp was killed as a result of a premeditated action by Oscar Pistorius. The argument submitted by the prosecution team that the premeditation is founded in the time Oscar had to reconsider his actions whilst fitting his prosthesis is not only remote and fanciful but quite cosmetic in nature.
In a recent High Court ruling in the matter of State v Raath, the full bench of the Cape High Court found that where a father forced his son to remove a firearm from the safe so that he could kill the son’s mother was not sufficient to constitute premeditated murder and it is with that in mind that we are of the view that there is no premeditation at this stage present in Ocar Pistorius’ matter.
It is not going to be easy for the prosecution team to convince the trial court of convicting Oscar of the murder of Reeva Steenkamp. At the bail hearing, it was submitted there were neighbours who apparently overheard some verbal argument between Oscar and Reeva prior to the shooting incident. The Prosecution team then sought to allege that Reeva Steenkamp fled to the toilet to hide from Oscar and that whilst being in the toilet she was shot dead. That is off course possible, but that argument could easily fit Oscar’s version too and we know that whenever a South African court is asked to draw an inference from circumstantial facts it must be the only reasonable inference possible. Equally it is a reasonable possibility that Reeva could have gone to the toilet whilst Oscar went outside to bring the fan in and that he thought a burglar had climbed through the window and was hiding in the toilet. If there are other reasonable inferences that could be drawn from circumstantial evidence then one cannot exclude the defence team’s version. We are of the view that the facts presented at the bail hearing supports Oscar own version rather than that of the prosecution team.
4. SELF DEFENSE / CULPABLE HOMICIDE
Although this discussion is not an attempt to try and prejudge this matter, it is important to note that there can never be talk of self-defence during this trial. The reason for this contention lies in the fact that in order to prove self-defence there must objectively be an attack against which you defended yourself. We know factually, there was never an attack on Oscar or we would have found a dead burglar in the toilet. Accordingly, the issue of unlawfulness should be common cause and the only issue that should be raised is whether this putative defence on the part of Oscar Pistorius excludes his intention.
Our courts have often stated that where a person believes he is being attacked, but he is not, it is regarded as a putative defence. If that version is accepted by the courts the person relying on it cannot be convicted of murder as he never had the intention to kill the person he ultimately killed. I.e. if the court finds that Oscar version is reasonably possibly true then he cannot be convicted of murder except if his actions were completely out of proportion to that of a reasonable amputee
If it is found that the reasonable amputee would have acted differently to the way in which Oscar acted he could be convicted of Culpable Homicide. That would mean that he negligently killed Reeva Steenkamp. At the very least we believe that if the bail proceedings are anything to go by he could be convicted of culpable homicide. To prove that he did not at least act negligently will be a very tough hurdle for Oscar’s defence team to surmount.
If the court accepts his version but finds that he acted so grossly out of proportion to how a reasonable amputee in his position would have acted his actions could even be viewed as a new attack and he could then even be convicted of murder.
At writing hereof we are still months away from any trial in this matter, and we assume a lot of new evidence will emerge in this matter which could easily sway this matter in favour of either of the Prosecution or Defence team. Whatever happens we are sure it will be landmark trial and the verdict will be discussed over every cup of coffee. It will place the South African legal system under the microscope like never before.