By Dario Milo and Stuart Scott
Tomorrow, Judge Thokozile Masipa will decide what sentence Oscar Pistorius will be given in respect of his conviction for culpable homicide. Judge Masipa’s judgment in respect of the conviction, handed down last month, led to a sea of divided opinion.
First, there was diversion amongst legal experts. Professor Stephen Tuson from the University of Witwatersrand, on the one hand, was quoted as stating “[w]e have many judgments which essentially say: ‘If you point a firearm at someone and shoot, then you intend to kill them’“. This suggests that Oscar should have been found guilty of murder on the basis of dolus eventualis.
On the other hand, Professor Jonathan Burchell, the author of one of the leading texts on criminal law, opined that the ultimate conclusion Judge Masipa reached – that dolus eventualis had not been shown because of Oscar’s mistake as to whether he was acting lawfully – was correct.
The judgment also resulted in markedly-divided opinion amongst members of the public. As Zapiro succinctly captured in his cartoon after the judgment, everyone is now a criminal law expert.
In our view the kind of rigorous debate which ensued was largely due to the unique access that legal experts (who were not involved in the trial) and the public at large were granted by virtue of the live broadcast. It presented an opportunity to follow each and every aspect of the trial as it unfolded, and to evaluate each piece of evidence that was introduced as if they were sitting in the courtroom. In our view, this level of openness has been positive and has facilitated a better understanding of the criminal justice system in South Africa and why Judge Masipa decided the case in the way that she did.
But for us media lawyers there was another talking point, which relates to a few extraneous comments in Judge Masipa’s judgment about the impact of media publicity on the evidence led in the trial. This has led to some journalists making the incorrect claim that Judge Masipa found that the broadcast of Pistorius’s trial compromised his fair trial rights, and that she expressed herself to be against the live TV broadcast of the trial.