There is no reasonable prospect that the Constitutional Court would overturn Oscar Pistorius’s murder conviction and it should not entertain his appeal.
This is the opinion of the prosecution, which is opposing Pistorius’s application for leave to appeal to the Constitutional Court.
Prosecutor Andrea Johnson said in a replying affidavit that the Supreme Court of Appeal had not made errors in law and did not exceed its jurisdiction, as Pistorius’s lawyers argued.
The Pretoria High Court found Pistorius, 29, guilty of culpable homicide in September 2014 for shooting and killing his model girlfriend, Reeva Steenkamp. He said he had believed she was an intruder.
But the Supreme Court of Appeal overturned this judgment last year, replacing it with a murder conviction and referring the case back to the high court for sentencing.
Johnson asked the Constitutional Court to refuse to hear Pistorius’s appeal, saying to do so would not be in the interests of justice; the law on dolus eventualis was clear and Pistorius had no prospects of success.
“I submit that it is in the interests of justice that criminal trials ought to be finalised without undue delay and submit that it is in the interests of justice that the applicant [Pistorius] now appears before the trial court to be sentenced for the crime he has committed,” she said.
Criminal law expert Llewellyn Curlewis said: “Having read the petition by the defence team and the National Prosecuting Authority’s affidavit, I am not convinced that there are new matters of law raised that require the attention of the Constitutional Court.”
He said the Supreme Court of Appeal seemed to be correct in its interpretation of the law.
“It is now in the hands of the chief justice [Mogoeng Mogoeng] to decide whether it will grant leave to appeal,” Curlewis said.
In Pistorius’s application to the Constitutional Court, his lawyer, Andrew Fawcett, said the Supreme Court of Appeal had the right to consider only questions of law and had overstepped its bounds by considering facts when it rejected the Pretoria High Court’s finding that Pistorius acted out of fear in the genuine, but erroneous, belief that his life and that of Steenkamp were in danger.
Fawcett said that because Pistorius genuinely believed that their lives were in danger, he believed he was acting in self-defence and thus lawfully. Knowledge of unlawfulness was a component of dolus eventualis and the Supreme Court of Appeal failed to consider it.
But prosecutor Johnson said the Supreme Court of Appeal correctly rejected Pistorius’s reliance on legal principles correctly to the facts accepted by the trial court.