Oscar Pistorius appeal: state can challenge murder acquittal
Prosecutors in Pretoria are one step closer to having Oscar Pistorius's murder acquittal overturned
Oscar Pistorius could yet be convicted of murder after Judge Masipa today granted the prosecution leave to appeal against the athlete's acquittal for the murder of Reeva Steenkamp.
The state was not given permission to appeal against the five-year sentence handed down to the athlete, nor to challenge his acquittal on the charge of possessing illegal ammunition.
The case will now be heard in South Africa's Supreme Court of Appeal in Bloemfontein.
The issue at the heart of the prosecution's argument was Judge Thokozile Masipa's application of "dolus eventualis", a legal term for when the perpetrator foresees the possibility of his action causing death and persists regardless.
In September, Masipa ruled that the prosecution had not provided enough evidence to prove beyond reasonable doubt that Pistorius foresaw that he might kill somebody when he fired four shots into his toilet door. Therefore, Pistorius was cleared of murder and convicted on the lesser charge of culpable homicide.
Today, Masipa said prosecutor Gerrie Nel had persuaded her that there were still questions on points of law to be answered.
However, she was not convinced that Pistorius's five-year prison sentence was "shockingly inappropriate", as Nel had claimed, nor that another court would come to a different conclusion on the sentence.
A spokesman for the National Prosecuting Authority told reporters outside court: "Our argument was that [Pistorius] should have been convicted of murder, and then would have been sentenced to a minimum sentence of 15 years. That is, of course, what we would like to happen. It isn't about winning – it's about justice."
The Supreme Court of Appeal sits in panels of three or five judges, depending on the nature of the appeal. The senior judge presides, but the decision of the majority is the decision of the court.
Prosecutors told reporters that things can "take time" at the appeal stage and Pistorius could even be out of jail by the time the appeal is scheduled.
Oscar Pistorius appeal: Nel says judge 'erred' on conviction
Prosecutor Gerrie Nel was back in court today to appeal against Oscar Pistorius's culpable homicide conviction and five-year sentence for killing his girlfriend Reeva Steenkamp.
Judge Thokozile Masipa cleared the athlete of murder, saying the state had not proved beyond reasonable doubt that Pistorius had intended to kill anyone when he fired four shots through a locked toilet door on 14 February 2013.
Masipa will deliver her ruling tomorrow. If she grants the prosecution permission to appeal against her verdict and sentence, the case will go to South Africa's supreme court of appeal in Bloemfontein. If she refuses, the prosecution can choose to petition her decision.
Defence lawyer Barry Roux will also make a submission, but Pistorius is unlikely to make an appearance himself. He is currently serving his sentence at Kgosi Mampuru prison in Pretoria.
Here is what we have heard today:
10.30am: Defence lawyer Barry Roux makes his submission. He says that every single point raised by the prosecution in its application was taken into account by the court. Even if the court made an error, it would be based on a point of fact, not law, and so cannot be grounds for appeal, he says. Roux accuses the state of "twisting" things because it is unhappy with the findings. "My Lady, you absolutely, correctly dealt with dolus eventualis," he tells Judge Masipa. Wrapping up, Roux summarises that there is no case for appeal.
Judge Masipa says she needs time to consider her decision. The court adjourns until tomorrow morning.
9.00am: Gerrie Nel is making his submission to the court. His job is to convince Masipa that a different court might make a different finding. In his written submission he describes Pistorius's five-year sentence as "shockingly light". He tells the court that the fact that Pistorius might serve only ten months in prison is "inappropriate" for someone who acted with his degree of culpability and gross negligence. "An innocent woman was shot and killed in most horrendous circumstances... The accused fired four shots. He knew there was someone in the cubicle with no escape," he says.
Nel suggests the court may have "erred" in its application of dolus eventualis, a legal term for when the perpetrator foresees the possibility of his action causing death and persists regardless. Judge Masipa ruled that Pistorius had not foreseen that his action would result in death.
Nel denies a claim by the defence that his appeal is based on matters of fact – which is not allowed – and insists it is a matter of law. For a murder conviction, the court does not have to believe Pistorius wanted to kill Steenkamp, but simply that he wanted to kill the perceived intruder he believed to be behind his toilet door, says Nel. The prosecutor adds that it is very unlikely that a murder suspect will come to court and admit they wanted to shoot. Therefore the court has to use the legal tests and facts to come to that conclusion.
Oscar Pistorius's sister denies prison rules broken on birthday
Oscar Pistorius's sister Aimee has denied reports that her family flouted prison rules on the day of her brother's birthday.
South Africa's Sunday Times newspaper suggested yesterday that the athlete was given preferential treatment as he celebrated his 28th birthday behind bars at Pretoria's Kgosi Mampuru prison on Saturday.
"Prison officials bent over backwards for Oscar Pistorius and his siblings on his birthday," claimed the newspaper.
It said Aimee and her brother Carl had been allowed to bring Pistorius balloons, a gift bag and a cake from outside of the prison, despite Correctional Services rules stating that prisoners can only be given food bought at the prison tuck shop.
It also claimed the siblings spent almost two hours together, despite rules stating that visits must last no longer than an hour. Prison officials drove Aimee and Carl's cars into the prison grounds without searching them "as is the norm for vehicles entering a high-security area", added the Times.
But Aimee took to Twitter yesterday to address the claims. "I am dumbfounded at the false and irresponsible reporting in some newspapers today. Carl and I had a 45-minute non-contact visit with Oscar yesterday as all our visits have been non-contact thus far, per regulations," she wrote.
"My brother received NOTHING that was not allowed by prison regulations for group B prisoners. No cake or perishables present at all. In fact, he only received toiletries and letters on his birthday and we took some balloons to SHOW him through the glass divider.
"We are respectful of the rules. The correctional officers have been courteous but stern – as their position requires."
The management of Kgosi Mampuru denied Pistorius was receiving preferential treatment, but a spokesman for South Africa's Department of Correctional Services said: "The allegations will be investigated and persons found guilty will be dealt with."
Pistorius is serving a five-year prison sentence after he was found guilty of culpable homicide for shooting his girlfriend Reeva Steenkamp on 14 February 2013.
Oscar Pistorius is in the same prison as an apartheid death squad leader and has shared birthday cake with a Czech prisoner, according to local media reports.
The athlete is three weeks into his five-year prison sentence after being convicted of culpable homicide for shooting his girlfriend Reeva Steenkamp.
Prosecutors announced today that their application to appeal against Pistorius's conviction and sentence will be heard on 9 December.
Until then, Pistorius remains behind bars at Kgosi Mampuru II in Pretoria.
According to South African newspaper City Press, the athlete was initially housed in a private cell in the prison's EF section but had to be moved after another high-profile prisoner, Etienne Kabila, flooded the cells.
Kabila was arrested in February 2013, two days before Reeva was killed, but is still awaiting trial and possible extradition for allegedly plotting to kill and overthrow his half brother, Democratic Republic of Congo President Joseph Kabila.
Kabila, who has previously complained of being physically assaulted by prison guards, is believed to have put a plug in a basin and left the tap running after arguing with wardens.
One source told City Press: "[The section] was so badly flooded that inmates were almost swimming, and this was seen as too dangerous for Oscar."
Pistorius has been moved to the B section of the prison.
Among his neighbours is Czech prisoner Radovan Krejcir, who is currently on trial for alleged kidnapping and torture. He reportedly celebrated his birthday two weeks ago and shared his birthday cake with other prisoners in the wing, including Pistorius.
According to the Daily Telegraph, Pistorius has also been using gym equipment belonging to Krejcir to keep fit.
The Czech prisoner has complained that an exercise bike and treadmill installed in a hallway near his cell was taken away without his knowledge and provided to Pistorius.
"I did not object to Mr Pistorius utilising my equipment after he arrived at this facility and in fact Mr Pistorius and I started training together," he wrote in a letter sent to prison officials, Amnesty International and the South African Press Association.
However, he did object to the gym equipment being moved, and demanded that they be returned to their position outside his cell.
"I have been deprived of my training since November 9 2014 as a result of this unfounded and unexplainable change," he wrote, "which I submit has been directed directly at me, in just another form of mental and emotional torture,
Once the flood damage is repaired, Pistorius is expected to be moved back to the EF section of the prison, where the single cells are said to be bigger and more comfortable. The security in B section is also said to be a lot tighter. However, it is not as tight as the prison's maximum security section C-Max, which houses apartheid death squad leader Eugene de Kock, known as 'Prime Evil'.
The South African Times says Pistorius wakes at 5.30am, eats breakfast at 7am, lunch at 12pm and supper at 4pm – all in his cell.
He has not been mingling much with other prisoners and has become extremely depressed, says City Press. One source told the newspaper: "He has even cried on occasion. He really is battling with prison."
Oscar Pistorius: prosecution files appeal against verdict
South Africa's National Prosecuting Authority has filed an appeal against the verdict and sentence given to Oscar Pistorius.
Prosecutors were not happy with the culpable homicide conviction and five-year prison sentence handed down by Judge Thokozile Masipa.
"Today, we announce that the NPA filed the application for leave to appeal both the conviction and sentence," it said today in a statement. "The appeal on conviction is based on the question of law."
Pistorius began his prison term on 21 October and will be eligible for release after ten months to complete his sentence under house arrest.
Prosecutor Gerrie Nel had argued that only ten years' imprisonment would satisfy the public.
Some legal experts believe Judge Masipa erred in her interpretation of "murder dolus eventualis", a legal term for when the perpetrator foresees the possibility of his action causing death and persists regardless.
Masipa accepted that a "reasonable" person would have foreseen that shooting into the door of a small toilet cubicle may have killed the person inside. However, she said South African law warns against automatically assuming that because a perpetrator "should have" foreseen the consequences of his actions that he actually did.
The onus was on the state to prove beyond reasonable doubt that Pistorius foresaw the fatal consequences of his actions when he shot at the door, but the judge said the prosecution failed to do so.
A date for the appeal hearing has not yet been set.
June Steenkamp, Reeva's mother, said the family had been "devastated" when Masipa ruled out murder and pre-meditated murder, but said that after sentencing they felt that justice had been done. "We were happy with the sentence – five years is sufficient," she said.
She has since said that she believes the judge made a mistake in failing to convict Pistorius of murder (see below).
Oscar Pistorius: judge made a 'mistake', says Reeva's mother
The mother of Reeva Steenkamp believes the judge who convicted Oscar Pistorius of culpable homicide "made a mistake".
June Steenkamp has spoken out in a number of interviews since Pistorius was sentenced to five years in prison for shooting Reeva on Valentine's Day last year.
Prosecutors announced last week that they will appeal against both the conviction and sentence handed down by Judge Thokozile Masipa.
"I had a lot of trust in her," June said of Judge Masipa in an interview with The Guardian's David Smith. "But I think she did make a mistake."
The Steenkamp family was said to be "devastated" that Judge Masipa ruled out murder and pre-meditated murder, but felt that justice had been done after Pistorius was sentenced to five years in jail.
June said she still did not feel any sense of closure, despite the trial coming to an end last month.
"I've actually been feeling much worse than at the beginning. It's like a realisation that she's not there any more. I sat there every day and I always had things to do, and now it's crystal clear that she's never coming back," said June.
Both she and her husband Barry are tortured by the thought of their daughter's final moments, she said. Reeva was hit in the hip, arm and head through the closed toilet door.
"Imagine what she went through in that toilet, petrified, waiting for God to save her," said June. "That's the worst part. Barry and I both have nightmares and it's always about that, because we always protected her."
June described her daughter as a "perfect child and lovable", saying she could not remember one argument that they had because she was so good.
"We would have loved to have had a little grandchild from her," she tells The Guardian. "We'd love to have had a wedding; her father would love to have taken her down the aisle. And all the great things she was going to do. She could have changed the world. She could have changed South Africa, the way she was going. She had a voice."
More about Oscar Pistorius:
Oscar Pistorius sentenced to five years in prisonOscar Pistorius sentencing: as it happenedOscar Pistorius was 'on phone to ex' on eve of shootingOscar Pistorius: 'there is still a missing link' Oscar Pistorius guilty of culpable homicide - but not murderOscar Pistorius: How long might he face in jailWhat is Oscar Pistorius's defence and can it succeedOscar Pistorius involved in nightclub fightOscar Pistorius: some defence witnesses refused to testifyOscar Pistorius judge's concern over mysterious missing cordOscar Pistorius: seven key quotes from the murder trialSix questions for Judge Masipa Family denies athlete took acting lessonsReeva 'had no time to scream'Pistorius told: 'You are getting deeper into trouble'Pistorius describes night he shot Reeva SteenkampPolice release photos of crime sceneFive questions Pistorius will need to answerPistorius used bullets that cause 'maximum wounding'