History not on Oscar’s side in final freedom bid
Very few murder cases have been reviewed by the Constitutional Court
OSCAR Pistorius will have to put up a strong case if he does succeed in getting the highest court in the land to consider his case.
If successful, the fallen Olympic star’s latest bid for freedom — described as “a long shot” by some legal experts — would be one of just a handful of murder cases to have been reviewed by the Constitutional Court.
And, according to the court’s online archives, only three have succeeded:
The landmark 1995 State vs Makwanyane judgment ruled that the death penalty was unconstitutional;
In 2005, Donald Veldman’s 15-year sentence was reduced to 10 years. He had been convicted of murder, assault and possession of ammunition. The Constitutional Court found that he had committed those crimes before the minimum sentence of 15 years had been introduced; and
Also in 2005, the Constitutional Court ruled that apartheid-era chemical warfare expert Dr Wouter Basson could be retried. Basson was acquitted of 67 charges during his high court trial. Although he was never retried by the state, Basson has been tackled by the Health Professions Council of South Africa. The matter continues.
Criminal attorney Ulrich Roux, a legal commentator on the Pistorius case, said: “Upon comparing the criminal matters previously heard by the Constitutional Court and considering Pistorius’s possible grounds for approaching the court, it does seem as if he could have an outside chance of the court granting his application to approach the court.”
If Pistorius were to be granted leave to appeal, he would have his work cut out for him in proving that the Supreme Court of Appeal had erred in its judgment when it overturned his culpable homicide conviction for one of murder, said Roux.
“It is not often that criminal matters, specifically murder trials, end up in the Constitutional Court, as our high courts and the Supreme Court of Appeal seldom seem to get it wrong.”
Pistorius appeared in the High Court in Pretoria for a bail application on Tuesday.
The thrust of Pistorius’s appeal, Roux explained, was that the Supreme Court of Appeal had not limited its finding on the legal principle of dolus eventualis to a question of law, but that it also considered the facts in reaching
Our high courts and the Supreme Court of Appeal seldom seem to get it wrong
its conclusion that Pistorius had committed murder.
“The difficulty with this argument is that it is near impossible for a question of law to be interpreted and ruled upon in isolation,” Roux said.
“The facts are a contributing factor in reaching a conclusion and making a decision pertaining to the interpretation of a question of law. The one is a function of the other,” he said. STILL TRYING: Fallen Paralympic star Oscar Pistorius and his counsel Barry Roux in deep discussion before his bail application at the High Court in Pretoria on Tuesday