Pistorius murder judgment 'rests on three errors of law'South Africa
Tuesday 12 January 2016 - 3:31pm
- Africa News Agency
https://www.enca.com/south-africa/pisto ... errors-law(excerpts)
CAPE TOWN - Oscar Pistorius’s legal team has contended that the Constitutional Court should “in the interests of justice” grant the paralympian leave to appeal the Supreme Court of Appeal (SCA) judgment.
In papers filed on Monday, a member of Pistorius’s legal team, Andrew Fawcett, said the SCA judgment “rests on three errors of law”.
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In the papers, Fawcett argues the application for leave to appeal has two main bases – that the SCA “exceeded its limited jurisdiction” and acted “unlawfully and unconstitutionally when it rejected the factual finding of the trial court and replaced it with a contrary finding of its own”.
Fawcett further contends that the “SCA’s exceeding of its jurisdiction in this regard goes to the very heart of its decision that the applicant was guilty of murder”.
He argues that if the SCA had adhered to the factual findings of the trial court, “it would necessarily have concluded that the requirements of putative private defence were met and that accordingly no murder conviction could follow”.
The second basis of the proposed appeal argues that the SCA judgment rested on “three errors of law”.
Fawcett argues that “the SCA applied only the first component of dolus eventualis (foresight and reconciliation) and failed to appreciate the inextricable relationship between the first component of dolus eventualis (foresight and reconciliation) and the second component of dolus eventualis (knowledge of unlawfulness)".
The papers further state that the dolus eventualis finding did not take into consideration whether Pistorius had acted with the “requisite knowledge of unlawfulness”.
And Fawcett contends that the SCA “reintroduced the defunct presumption that an accused intends ‘the natural and probable consequences of their actions’ when it (impermissibly) reconsidered putative private defence”. This, too, was an error of law, he argues.
Constitutional issues have also come to the fore. Fawcett argues that the SCA exceeded its jurisdiction, and that Pistorius’s right to a fair trial and his right against double jeopardy were also constitutional issues.
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For the full article click on the link.
For more information on the part about the “requisite knowledge of unlawfulness” there are a series of articles by Dr Roché Steyn that go over the point. The very first article on it was written right after the ruling on December 2, 2015.
Here is the link to the December 2, 2015 article and then the first of a series of 5 further articles:
Oscar Pistorius: What is the Essential 'Missing Link' in Dolus Eventualis?
Opinion
Wednesday 2 December 2015 - 9:43pm
Contributors: Dr Roché Stey
https://www.enca.com/opinion/oscar-pist ... eventualisOscar Pistorius: Is the 'Link' in Dolus Eventualis still Missing?
Opinion
Thursday 7 January 2016 - 4:15pm
Contributors: Dr Roché Steyn
https://www.enca.com/opinion/oscar-pist ... ll-missing