Important Notes on the Oscar Pistorius Case's Unanimous Reversal

This case involves a human tragedy of Shakespearean proportions: a young man overcomes huge physical disabilities to reach Olympian heights as an athlete; in doing so he becomes an international celebrity; he meets a young woman of great natural beauty and a successful model; romance blossoms; and then, ironically on Valentine’s Day, all is destroyed when he takes her life.
— Justice Eric Leach of the Supreme Court of Appeal of South Africa

Once upon a time, Oscar Pistorius was the sports hero of South Africa better known as the "Blade Runner" who fought for his right to enter the Summer Olympics, which was previously open only for able-bodied competitors, and made it to the semifinals in two races. Almost a year and a half ago, Oscar Pistorius was the boyfriend who shot his girlfriend four times through a locked door and, later, a criminal convicted of "culpable homicide" (i.e., something less serious than "murder" similar to manslaughter) because he claimed he did not intend to kill her and believed she was a burglar. As of today, Oscar Pistorius is, by definition under South African law, a murderer who will soon officially receive his new sentence once he returns back to court next year. Many people have questions about the foreign jurisdiction's legal system and how Pistorius' case can be played within it. So, after you skim through my previous posts about the initial verdict at his earlier trial, I encourage you to read through this brief Q&A addressing a handful of critical elements for adequate awareness on the most popular story in the South African legal system's history.

1. Wait, he was originally convicted of a lesser crime, but he was convicted of a greater crime on appeal. Is that right? How can that happen?

On appeal, Chief Prosecutor Gerrie Nel argued that (1) the original trial judge's finding that Pistorius was not guilty of murdering his girlfriend, Reeva Steenkamp, was wrong; (2) the original trial judge erred in applying certain legal principles involving what was foreseeable and what was the intent; (3) the original trial judge improperly dismissed evidence; and (4) the appellate court could overturn the original ruling because by finding Pistorius guilty of culpable homicide, it was "a de facto acquittal on the murder charge." Furthermore, Nel pushed that because retrial would be insane, the appeals court should itself impose a verdict of murder.

To crush Pistorius' verdict and sentence and instead impose new ones, Nel had to emphasize that he was trying to challenge the acquittal on murder - NOT the verdict that Pistorius was guilty of culpable homicide - and prove that an authoritative case was bad law. According to State v. Seekoei, the State cannot appeal when the defendant is convicted of a lesser crime. Nel, making the legal technicality argument, pushed that the acquittal rather than the conviction was the focus to where the defense's case law was irrelevant. Therefore, the State argued that the culpable homicide conviction has the same effect as if the trial judge had simply ruled that the State did not prove the murder charge (i.e., acquittal of murder). The defense argued that the State was seeking appeal on an issue of fact - NOT law - which is not allowed in either South Africa or the United States. Nel managed to negate that counterargument.

Nel successfully argued that he had grounds to appeal and went on to successfully argue that not only could the court consider the case but that the court should rule itself because there were errors in law from the lower court. Nel played up the grey area between a conviction of a different crime and a pure acquittal, and at the end of the day, the five-judge panel unanimously agreed with the arguments so strongly that it imposed the murder conviction the State originally sought.

In the United States judicial system, a defendant has the right to appeal a guilty verdict, but the State cannot appeal if the defendant is found not guilty. Additionally, either side may appeal the sentence imposed after the defendant is found guilty, and if the appellate court did not affirm the original ruling, it would essentially have to either reverse the ruling and order a retrial or reverse and send the case back to the lower court with instructions. Our law presents a scenario similar then to the prosecution's scenario in South Africa. The lower court found Pistorius guilty of a different crime than what the State sought, but the legal technicality regarding acquittal is where South African criminal law breaks from American criminal law.

2. How did Pistorius get out of jail in the first place when his five-year sentence for "culpable homicide" began in October 2014?

South Africa offers "correctional supervision," which is "an option where the Commissioner [from the Department of Correctional Services] may convert a sentence of imprisonment after a portion has been served in a correctional centre under certain set conditions." Under South African law, the convicted may be eligible for release under correctional supervision once he or she has served one-sixth of the sentence though, ultimately, it is up to a Correctional Supervision and Parole Board. Fast-forward to October 2015 and we see Pistorius released from prison and placed on house arrest where the world saw photos of him seemingly happy to celebrate his 29th birthday.

3. Why is there so much focus on June Steenkamp, Pistorius' late girlfriend's mother?

Probably because (a) Pistorius did not attend the hearing since he did not have to, and (b) the popular worldwide sentiment was that justice was not served because Pistorius should serve more than five years in prison for what could arguably be - and now has proven to be in the appellate court - murder. Women's rights groups there argue that a high number of women are killed by their partners in South Africa. So, like in the United States, hopefully this high profile case brings awareness to the gravity of the domestic violence issue in general.

4. Is this the end for Pistorius, legally speaking?

Akin to the legal structure here, the appellate level is the second highest court in South Africa. Pistorius has the option to appeal to the highest court in the country, equivalent to the Supreme Court of the United States (SCOTUS), but just like in this jurisdiction, the threshold Pistorius would have to break through to have the court hear his case is extremely challenging to reach.

If this case were in the United States, Pistorius would have to file a "writ of certiorari" to ask SCOTUS to hear the case. From there, SCOTUS might consider hearing it if (a) the case involves a specially important legal principle, or (b) there is a "circuit split" on the issue, where two or more federal appellate courts have different interpretations of the law.

In a nutshell, Pistorius and his legal team would have to show that the appellate judges violated one of his constitutional rights contained in Chapter 2 (Bill of Rights) of the Constitution of the Republic of South Africa if he chooses to appeal this murder conviction. Whether this case was tried in the United States or South Africa, Pistorius has most likely lost.

Below is a message on, the official website of Oscar Pistorius, that still sits on its homepage today:



Yes, Oscar. Yes you will.