If the Oscar Pistorius case is any indication, the criminal justice system in South Africa is strange—at least when compared to ours.
|Photo by David Jones|
South Africa doesn’t use juries. So, the double-amputee sprinter’s fate was up to one person, a former social worker and news reporter turned judge. Except, the guilt/innocence determination wasn’t entirely Thokozile Matilda Masipa’s. If the two assessors aiding “My Lady” had disagreed with her finding, they could have overturned it. But even had that happened, sentencing would have still been up to Masipa. (“Oscar Pistorius' Trailblazing Judge Has Reputation for Toughness.”)
To someone trained in American law, it’s all somewhat convoluted. Like the verdict.
After a six-month-long trial that involved approximately three months in breaks—including a month-plus delay for Pistorius to undergo court-ordered psychiatric testing—Judge Masipa showed her hand. On Thursday, she found that the government hadn’t established that Pistorius premeditated Reeva Steenkamp’s death or that he intended to kill her at all. That means that Pistorius is off the hook for South Africa’s version of first degree murder.
Judge Masipa also found that Pistorius wasn’t guilty of what they call dolus eventualis murder. As The Independent explains, “dolus eventualis means it is enough to find someone guilty of murder if the perpetrator objectively foresees the possibility of his or her act causing death and persists regardless of the consequences.”
That sounds an awful lot like an American variation of second degree murder that goes by monikers like implied malice murder, “abandoned and malignant heart” murder, and reckless murder. In essence, it’s an unintentional killing where a defendant is aware of, but consciously disregards, a risk that takes another person’s life. (For infamous case examples, see Murder vs. Manslaughter: State of Mind.)
No one disputes that Oscar Pistorius fired four bullets into a closed bathroom door, thereby killing Steenkamp. He claimed—and the judge believed that—when he unloaded, he thought an intruder was in the bathroom. But, as Stephen Tuson, an adjunct professor at the University of the Witwatersrand in Johannesburg, queried, “How can you shoot four bullets through a door and not foresee” the death of the person behind it?
Masipa’s answer? “Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom.”
It might well be that dolus eventualis murder wasn’t the right charge, and that Pistorius was nevertheless criminally responsible for Steenkamp’s death. Indeed, Judge Masipa indicated on Thursday that she’ll complete her findings by entering a guilty verdict for culpable homicide, the rough South African equivalent to U.S. manslaughter.
Our manslaughter has two branches. Voluntary manslaughter can involve an intentional killing where the defendant acted in the heat of passion, because of some reasonable provocation. And involuntary manslaughter often refers to an unintentional homicide caused by criminally negligent or reckless conduct.
Masipa refered to the sprinter’s conduct as clearly negligent. She mentioned the alternatives that were available to Pistorius in those fateful moments, like screaming from the balcony or calling security or the police. In short, she found that it was unreasonable to fire four rounds at the bathroom.
But even if dolus eventualis isn’t the appropriate verdict—if something like manslaughter is more fitting—reconciling Judge Masipa’s words with the facts is a challenge. Someone intentionally fires four rounds into a bathroom that someone else is in. Three of those shots hit the occupant; at least one of them kills her. But the judge says that the person doing the shooting didn’t foresee the possibility that his actions would kill the occupant?