Judge Thokozile Masipa's decision to drop the murder charge against Oscar Pistorius has shocked many of South Africa's legal fraternity and left members of the public stunned.
At the heart of the matter is how the judge, who found Pistorius to be an unreliable and dishonest witness, could still find him innocent of murder, and how he could fire four bullets into a small toilet without intending to kill the person behind the door.
According to Judge Masipa none of this evidence justified a guilty verdict.
“He was not truthful when asked about his intentions that morning as he armed himself with a lethal weapon,” Ms Masipa said, but she added that “untruthful evidence does not always justify the conclusion that the accused was guilty”.
Yesterday she found Pistorius guilty of culpable homicide over the shooting dead of his girlfriend Reeva Steenkamp last year.
While legal analysts expected the premeditated murder charge to be dropped, her decision to acquit Pistorius on a lesser murder charge has sparked a debate on whether she made an error the prosecution could use for an appeal.
Intent to kill
To secure a conviction of murder under South African law one needs to prove there was intent to kill outside of self-defence.
In this case opinions are divided as to whether Pistorius had foresight that his actions would cause the death of the person behind the toilet door. He claims he did not act with such foresight, but reacted out of fear.
Pierre de Vos, chairman of constitutional law at the University of Cape Town, expresses doubt over the judge’s findings. “Surely if you shoot into door of a small toilet and know somebody is behind door you foresee and accept possibility of killing?” he tweeted.
Criminal lawyer Martin Hood reportedly said he was “shocked” at the decision and that the consensus among the legal fraternity was that Judge Masipa got it wrong.
“The consensus among the legal community was that he is guilty of murder. This could really open the door to systematic abuse of our legal system by people who shoot their partners and claim self-defence,” he said.
Criminal lawyer William Booth told The Irish Times the issue was whether Pistorius on his own version of events exceeded the bounds of self-defence.
“Can you go and get a gun from another place, make it shooting ready and then come to the toilet, which is a tiny little room and fire and know there is someone behind the door? Surely you had to have known that person is going to be killed,” he said.
“In terms of the law in respect of self-defence you can intentionally kill someone if you are acting in self-defence, that can justify your conduct so that excludes the unlawfulness. But I don’t think she dealt with this issue properly.”
Possible appeal
The National Prosecution Authority (NPA) could only launch an appeal after the sentencing takes place and then only in relation to a point of law, he added.
“Did she [Judge Masipa] apply the law correctly? How do the facts fit into her interpretation of the law?
“They [the NPA] might say how she dealt with the issues around murder and self-defence were incorrect under the law. I believe they will.”