#Oscartrial #OscarPistorius The Verdict by Judge Knott

Here is Oscar Pistorius - The Verdict.

This verdict was published worldwide on Smashwords, iBooks, Barnes & Noble, eReads, Scribd and many other eBook stores. The verdict was published on 16 August 2014, BEFORE the actual verdict of the Honourable Judge Masipa, published on 11 September 2014.

The Verdict - by Judge Knott (Pen name) Later edited & re-published by Siegfried Walther, Advocate of the High Court, Arbitrator, Member of the Cape Bar (Actual Author)

Foreword

The Foreword below is as it appeared on 16 August 2015 when it was published save that it has been slightly amended to reflect that the actual author, Advocate Siegfried Walther, has now revealed himself as the author in place of Judge Knott (a pen-name.)

The writer is a professional member of a branch of the legal profession in South Africa which does not permit its members to comment in the media on cases in which they are involved. Comments on cases which are pending before the Courts are discouraged.

There are good reasons for this, although some have probably fallen away in the modern media age where legal experts are now seen and heard to provide running commentary on Court proceedings as they happen. That said, my branch of the profession is not included amongst the latter.

One reason for why it is undesirable for members of the bar to comment upon current cases in the media is that we regularly work in close proximity with the Judiciary and it is deemed undesirable for a member of the profession not involved in a case to be seen to be second guessing, criticising or attempting to influence the Judge or the Judicial process on a public platform before the case has run its course.

It is for this reason that I wrote this article, which follows the form one would expect of a judgment, under the pen name, as a legal writer, and not in any professional capacity.

I utilised the name of Judge Knott. The name signified firstly, that I might not be a Judge, although I have often acted as an Arbitrator, albeit in civil not criminal cases.

I had no qualms about commenting on this case in a publication which is publicly available prior to the conclusion of the matter, albeit under a pen name, since the case itself has been the subject of worldwide media coverage and scrutiny.

Members of the legal profession, both locally and internationally, have had a field day expressing informed, and, I daresay, even highly uninformed, views in writing and on television in regard to all aspects of the matter. The honourable Judge and learned Assessors, I am certain, will ignore or pay no heed to any of these views and I do not imagine that my two cents worth, added under a pen name, will be received or treated any differently.

If other branches of the legal profession, journalists and the public are permitted to express their views on the case, which is of course, their democratic right to do, then surely, I am likewise entitled to do so provided I do not do so in my professional capacity.

I now turn to the reason why I decided to comment on this matter and why I have chosen to do so in the form of a Verdict, as opposed to writing an article.

Many of the online views expressed by some of the public and assorted journalists in regard to pertinent aspects of the case are not indicative of a rational, reasoned, or informed approach to the assessment of evidence led at the trial.

I suspect that in long trials, most people filter evidence adduced in a manner which is informed by an overall view of the case they arrived at far earlier in the proceedings.

In long criminal trials, a judge or jury is likely to be confronted by a mountain of evidence given by numerous state witnesses on a host of disputed issues, not to mention the contradictory evidence of the witnesses for the defence. The task of deciding whether to accept the State’s or the Defence’s version in regard to each issue in dispute is not an easy one.

Adjudicating requires a logical, intelligent, disciplined approach which also accords with the laws of evidence and criminal procedure. Most importantly of all, a good judge or jury member requires an additional ability, which is sadly rather rare - discernment, or as I like to call it, the ability to see the wood from the trees. As one wise person - I don’t recall who it was - once said: “Common sense is not so common”. Neither is discernment.

Although discernment and intelligence go hand in hand, the two are not synonymous. It is not uncommon to find highly educated, intelligent people, including trial lawyers, who may lack discernment. It is also not uncommon to find people who don’t have much in the way of formal education, but who nonetheless have intelligence and discernment.

When the historic decision to broadcast this trial on television was made, the result was not only that foreign viewers, many of whom are familiar only with jury trials, were introduced to the South African criminal justice system, but it also introduced the general South African public to that system.

South African lay persons and even certain journalists found themselves exposed, for the first time, to a live demonstration of how a High Court Criminal trial is conducted. In this regard, it bears mentioning that many South Africans were amazed to learn that South Africa abandoned the use of juries in the late 1960’s. The not uncommon assumption that juries still operate in South Africa is largely attributable to the fact that most movie and television criminal trials to which South Africans see feature trials which take place in the United States, Britain or in other commonwealth countries where trial by Jury is the norm.

I find the concept of being tried by a jury of my peers to be chilling. I much prefer the idea of a trial by a single Judge and two Assessors as occurs in the High Court in South Africa. I pause to mention that the Judge and the two Assessors decide together on the facts and the Assessors could, if they chose to do so, outvote the Judge on a matter of fact which would include the issue of whether the evidence supports a guilty verdict. On matters of law, the position is no different from the US or English systems, where the Judge is the only arbiter.

The aspect which most frightens me about a jury is that they are not required to deliver a written reasoned judgment. Instead the jury retires to deliberate in secret and later returns to have the foreperson simply announce that the jury has found the accused guilty or not guilty, and that is the end of the matter.

In my view, any person who is convicted of any charge, or even an accused who is acquitted, is entitled to a reasoned judgment showing precisely which witnesses’ versions, were accepted, which witnesses’ versions, were rejected, which facts were found to be proved and why certain facts or evidence adduced at the trial was rejected or found to be inconclusive, and finally which explains how the Court arrived at its decision, and this ought to include references to each legal principle relied upon.

The fact that a Judge presiding over a South African criminal case is obliged to render a detailed judgment has several crucial benefits.

Firstly, the Court has to pay attention to all the evidence. A verdict which fails to deal with any crucial evidence led, with a view to slotting it in its proper context, is likely to give rise to an appeal.

Secondly, the obligation to deliver a reasoned judgment also discourages the Court from delivering a biased judgment or one which relies on inadmissible evidence. If the judgment is biased or it relies upon inadmissible evidence, this will be obvious if the Court includes such biased or such inadmissible evidence in its reasoning.

But even if the Court relies upon inadmissible evidence or bias to arrive at its verdict, and the Judge were to decide to exclude any reference to that evidence in an endeavour to hide his reliance on that evidence, the rest of the judgment will nonetheless have to conclusively establish that the accused is guilty beyond a reasonable doubt. A judgment based upon undisclosed biased reasoning or upon inadmissible evidence which is not disclosed will inevitably suffer from gaps, or leaps of logic which will render it appealable on the grounds that the remaining evidence adduced before and considered by the Court is insufficient to establish the accused’s guilt beyond a reasonable doubt.

Single Judges in the South African system are aware of the Accused’s right to appeal. Judges do not like to have their judgments corrected on appeal. Thus they usually tend to take their duty to deliver a sound, reasoned judgment seriously, and therein lies an added layer of protection for the accused.

And as set out above, if an Accused is convicted, his legal team will be able to peruse and consider the written judgement to establish whether it is appealable or not. Errors made by the Court of first instance can be glaringly obvious from the judgment itself and any wrongful conviction in such a case can be easily overturned on appeal.

The fact that juries are not required to answer to the people they convict in the same manner is something I find to be almost barbaric.  It leaves a convicted accused in the unenviable position of not being able to show the Appeal Court precisely how and why the Jury got it wrong. It seems that an Accused who is convicted at a jury trial is simply left to speculate as to the alleged error in law or error of fact which the Jury might have made.

In my professional opinion, one cannot have a proper or just appeal process in the absence of a reasoned judgment from the Court which first hears the matter.

Little wonder then, that in the US and the UK, as I understand it, the accused isn’t entitled to challenge the correctness or otherwise of the jury’s finding. Instead, in those systems, the accused is only entitled to challenge his conviction on procedural or legal grounds i.e. where an irregularity of some kind has occurred such as where inadmissible evidence was permitted or where admissible evidence was not allowed or where the trial judge erred in some other manner, where the accused’s constitutional rights were violated, where the State failed to comply with its duties of disclosure to the Defence team etc. etc.

The other obvious flaw in the jury system is that most juries consist of lay persons. Lay persons are more likely to allow their biases and prejudices to affect their decisions than a trained judge who ought to be selected for his intelligence, his legal training, his legal experience, and lastly, his discernment.

In most jury pools, those who have discernment are likely to be outnumbered by those who don’t - common sense not being so common.

There are certain changes or improvements to the jury system I could suggest which would go some way to minimising the two concerns I have raised.

The trial Judge should be permitted to participate in jury deliberations and to an equal vote on the jury.

The Judge who deliberates with the Jury could then ensure that the jury members do not discuss or have regard to inadmissible evidence.

The Judge could also give the jury the benefit of his or her views and experience in regard to each issue to be determined.

The Judge could point out, for example, that just because a witness lied about one thing during his evidence, this does not necessarily mean that his entire evidence falls to be rejected. The Judge could point out, for example, that such witness’s evidence is corroborated in material aspects by the testimony of other witnesses or by forensic evidence.

The Judge could offer guidance to the jury as to his views on the weight which might be attached to a particular witnesses’ testimony or to a piece of forensic evidence, for argument’s sake.

The Judge would then take the jury, step by step, through the process of arriving at a view as to each issue in dispute between the State and the Defence.

A Jury with a voting Judge on it would have 13 votes. I would suggest that 11 out of thirteen votes should be required to return a guilty verdict and a simple majority should suffice for an acquittal.

Secondly, once the jury has reached its decision, the Jury and the Judge would return to Court where the Judge would, prior to announcing the verdict, provide the Court with an oral summary of how the Jury arrived at its verdict with sufficient detail to allow the accused to challenge the Jury’s reasoning on appeal, should there be grounds to do so. Once the Judge has announced the verdict, the Jury foreman could, as a formality, simply be asked to confirm that such verdict is indeed that of the Jury.

This brings me to the reason why I bothered to write an article about this matter and why I presumed to do so in the form of a judgment and not simply as an article.

I recently chanced upon a television programme hosted by Cape High Court Judge, the Honourable Dennis Davis. He expressed the view that it was a good thing that South Africans were at last able to see their criminal justice system in action for themselves instead of having to make do with the edited summaries of events by the print or broadcast media.

The Honourable Judge then went on to mention that the public’s understanding of what was happening in such trials would be further enhanced if journalists and television journalists who cover such trials were themselves better informed or more qualified to undertake such reporting.

Alternatively stated, the Judge seemed to wonder about the real benefit of the television coverage of criminal trials if, after the Court adjourns at end of each day, the public are then exposed to inaccurate or uniformed articles or broadcasts by journalists.

Having read many articles by journalists covering the trial, both local and international, and after suffering through numerous passionate but gravely misinformed views posted on the internet which confidently predicted the trial’s outcome, I realised that the process of educating the public about how our legal system works and about how a Court arrives at a verdict is a work in progress.

I also concluded that it cannot be left only to journalists to explain the nuances of the legal system to the public. Legal professionals also have to play their part in deciphering a process, which, despite not being excessively complicated, nonetheless requires years of study to fully understand.

There is no better way to promote an understanding of how a criminal trial works than to expose the public to a trial, all of the evidence, the arguments by both sides, and finally, to the reasoned verdict of the presiding Judge. This will enable anyone who has followed the trial to compare their own assumptions, understanding and conclusions in regard to evidence led during the case with those of someone who not only has the requisite qualifications to judge, but also bears the heavy burden of delivering an accurate verdict at the business end of a case.

I considered writing an article to address many of the misconceptions, biased conclusions and other inaccuracies I encountered whilst speaking to people about the trial and whilst reading posts on the internet. I decided that the best contribution I could make was to source the heads of argument of the State, those of the Defence, and to attempt my own verdict. Anyone who followed the trial from the beginning and who reads it ought, at least, to find it informative, if not educational.

In doing so, I do not contend that my verdict will necessarily be the same as the actual verdict, nor that my verdict will necessarily be accurate in all respects. After all, the real Honourable Judge and the learned assessors sat through the entire trial, and also the entire argument from both sides. My verdict is based upon the few hours of evidence I did manage to watch on catch-up TV, the arguments I heard from both sides, and that which I gleaned from the heads of argument filed by and published on the internet by each side.

Insofar as it needs to be said, my verdict is not intended to undermine the actual verdict or the integrity of the South African judicial process in any way. On the contrary, I hope that it will serve to better inform those who are interested in the process of arriving at a judgment as to the form and method involved, with a view to making a contribution towards a slightly more informed general public, or media, when actual judgement is handed down by Her Ladyship, the Honourable Ms Justice Masipa.

Permit me to conclude that I have every confidence in the Honourable Trial Judge and her learned assessors. In addition, I regard the South African criminal Justice system, at the High Court level at least, to be a system which is largely world class.

Indeed, for the reasons I referred to earlier, I strongly prefer the South African criminal justice system over the US or British Jury system.

This verdict was compiled as and is intended to serve as a topical and informative academic exercise. It is also not intended to offer any party to the proceedings or anyone affected by the proceedings any hope or to cause them any despair. Those who are somehow involved in the proceedings or affected by the proceedings will have learned to ignore many reports or posts in the media or social media. I am certain this too will be ignored.

 In the USA Supreme Court Judgments are referred to as Opinions. In the case of this verdict, it is nothing more than an opinion.

Finally, in a perfect world, my verdict would mirror that of the actual verdict. But I was not present at the trial, so my verdict could end up being deficient in some respect which might be material.  Alternatively, the Verdicts may differ is style or in regard to some of the things which I might consider relevant, but which the Actual Trial Court does not.  Any such differences would serve only to demonstrate how dynamic and demanding the process of arriving at a Judgment can be. Allowances have to be made for differences in approach, and quite frankly, for the possibility of error. But as I argued earlier, therein lies the strength of the South African criminal justice system.

Whosoever dares to accept elevation to the bench and who chooses to preside over accused in criminal trials, does so in the full awareness that their Judgments will be scrutinised by some if they acquit, and by others, perhaps even appeal court judges, if they convict.

Moreover, even if everyone is happy and nobody appeals, that does not prevent their judgments from being passed around or criticised by members of the Bar or the side-bar if the Judgment contains glaring errors. Even worse, no Judge can prevent their judgment from being torn to shreds by an academic in an article in a legal publication.

The varying fates and consequences which a High Court Judge’s Verdict or Judgement could encounter are all part and parcel of healthy, vibrant legal system and this serves only to encourage those on the Bench to maintain the already high standards which I am pleased to say one encounters from our High Courts throughout South Africa.

That said, the process of arriving at a reasoned written judgment ought usually to lead most Judges to arrive at more or less the same decision most of the time. That is what I hope, and suspect, will happen when the verdict which follows below is compared to the actual judgement.

16 August 2014
Post Judgment comment

For the purpose of the exercise I was undertaking I restricted myself to the main charge and not the “fire-arm” offences.

I found the accused guilty of culpable homicide. So did the trial Judge.

In other words, I found that the State had failed to prove its version that the Accused intended to murder Reeva Steenkamp. On the only remaining version before the Court - that the accused believed he was shooting at an intruder, the accused was thus found to have acted unreasonably and negligently - hence the culpable homicide conviction.

This was not the end of the matter, however, since the State also contented, in the alternative that, even if one accepted the accused's version that he thought a burglar was in the toilet, the accused was nonetheless guilty of recklessness in regard to the alleged intruder when he fired four shots at the toilet door as he did, and that this recklessness amounts to murder dolus eventualis. In essence, where one foresees that one's conduct might result in the unlawful killing of a person, and one nonetheless recklessly proceeds with such conduct, one is guilty of murder. 

The Trial Court found, however, accepted the Defence's argument that, on the proved facts, had the accused known it was Reeva Steenkamp and not an intruder behind the toilet door, he would not have fired at all, and thus, he could not be argued to have had the requisite intention, reckless or otherwise, to kill Reeva Steenkamp. The accused was thus only negligent and could thus only be convicted of culpable homicide.

The Trial Court's application of the dolus eventualis principle was controversial and most South African legal jurists argued that the Trial Court got this wrong. It didn't matter who the accused thought was behind the door, his conduct was reckless.  Although my ruling favoured the Defence's argument, I have always conceded that this legal point was arguable and might well succeed on appeal.

The State's appeal on this point was indeed successful and the conviction was changed to that of murder dolus eventualis.

The point, however, is that this does not change the trial Court's finding that the State failed to prove that the Accused intended to kill his girlfriend.

All that has changed is that the Accessed was found to have been reckless, and instead of merely negligent on his own version, and that this recklessness amounts to murder in regard to the alleged intruder he believed to be inside the toilet.

SIEGFRIED WALTHER 21 December 2015

Chapter 1 – Introduction

This is a criminal case arising from a shooting incident which occurred at the Accused’s home in Pretoria after 3 a.m. on 14 February 2013.

It is common cause between the State and the Defence that the Deceased died as a result of the injuries she sustained from several gunshot wounds.

It is also common cause that it was the Accused who fired the shots which killed the Deceased, who at the time was the Accused’s girlfriend.

The Accused has admitted to firing the shots while standing in his en-suite bathroom. It is not in dispute that he pointed his handgun at the closed door of a small toilet in that bathroom.

The Accused fired four shots in quick succession. The shots penetrated the door and struck the Deceased who was in the toilet. According to the pathologist, she died almost instantly.

The Accused claims, inter alia, that at the time he fired the shots in question, he had no idea that it was the Deceased who was in the bathroom.

The Accused instead avers that he fired the shots in response to a noise emanating from the closed bathroom door and he did so in circumstances where he believed his life to be in danger.

The State’s case, on the other hand, is that the Accused intentionally shot and killed the Deceased following a heated argument between the parties. The State suggests that the Accused became so enraged during the course of the argument that the Deceased sought refuge from him in the locked bathroom.

The State contends that it is likely that the Deceased refused to emerge from bathroom and that this could have further enraged the Accused.

At this juncture it bears mentioning that the Deceased and the Accused were the only persons present during the course of the previous evening and during the events which led to the shooting incident.

The State’s version of the shooting incident is thus largely circumstantial i.e. it is based to a large degree upon the inferences it argues the Court can and should draw from the totality of the evidence led by the State.

The cardinal issue for determination by the Court is whether the State is correct in contending that the Accused intentionally and unlawfully shot and killed the Deceased during a fit of rage following an argument between them. If so, then the Accused is guilty of murder.

 

Chapter 2 – The probabilities in regard to the State’s version

 

The onus to prove that the shooting of the Deceased was an intentional act falls upon the State, and it must do so by proving its case beyond a reasonable doubt. This presupposes that the State’s version should, at the very least, not be an unlikely or improbable one.

In determining what a Court might consider to be a reasonable inference which can be drawn from a fact or a particular set of facts, regard is often had to common experience of typically occurring events or common human behaviour.

It is not uncommon, for example, for a spouse or lover to plan to murder their partner and to carry it out. On the contrary, it occurs sufficiently regularly that it has become standard police protocol that, where a spouse or lover is believed to have been murdered in unexplained circumstances, the husband, wife or lover are initially regarded as prime suspects.

At the outset, it should be said that there is no evidence to suggest that the Accused had at any stage made any prior plans to kill the deceased.

It is significant that parties were not married, nor had their relationship progressed to the stage where they shared jointly in the ownership of any assets, or had any other joint proprietary interests.

Unsurprisingly then, there was no evidence to suggest that the Accused stood to make any financial gain, nor that he stood to benefit from any insurance policy pay-out arising from the demise of the Deceased.

I must therefore accept that, when the Accused invited or permitted the Deceased to spend the night at his abode, he would certainly never have imagined or intended that this would lead to her death and to him being charged with her murder. Alternatively stated, there is no evidence to suggest that the Accused had any motive at all to kill the Deceased.

The Court is all too aware that there are many other reasons, apart from financial gain, why one spouse or lover might attack or murder their partner.

It is also not uncommon for spouses and lovers to become involved in arguments or fights in which one, usually the husband or the male partner, ends up abusing, and/or assaulting his wife or partner. Regrettably, acts of violence against spouses, spousal abuse and the murder of a spouse is an all too common social phenomenon in South Africa.

The fact that such violence is fairly common in South Africa ought to operate to the advantage of the State as it tries to show that the version the Court is being asked to accept cannot be dismissed out of hand as being improbable.

It is common knowledge, however, that spousal violence seldom occurs in a vacuum. More often than not, such violence occurs after the use or abuse of alcohol or drugs by the perpetrator. These substances tend to affect or limit the ability of the perpetrator to control themselves. In severe cases alcohol or drugs can limit or override the perpetrator’s ability distinguish between right or wrong or to act in accordance with such distinction.

There are of course cases where domestic violence is unrelated to the use or abuse of alcohol or drugs, but such cases are the exception rather than the rule.

Also, the latter incidents of spousal violence can usually be linked to some or other known and/or fairly easily diagnosable psychological condition or personality defect e.g. the perpetrator typically has an aggressive, explosive personality, is sadistic or is a narcissist, or is someone who has a short temper and, with that, a history of violence towards women and or/children.

Generally however, the Court would consider it uncommon or rare for the average person (without drugs or alcohol being a factor) to become so overcome by blind rage as a result of an argument, that he would lose all sense of restraint or perspective, to a point where he would resort to committing murder.

In the instant case, no evidence was led that to demonstrate that the accused’s judgement was affected by alcohol or drugs. That being so, I find that the State’s version, that the Accused reacted to being in an argument with the Deceased by becoming so overcome with blind rage that he fetched a firearm and shot at her through a closed door, to be extremely improbable. Most sober persons, no matter how angry, would never come close to a situation where their resulting loss of control would cause them to think it would be a good idea to fire at anyone through a locked door.

Even if the State were able to prove, beyond a reasonable doubt that the Accused and the Deceased had been arguing, this would do little to render the State’s theory more probable. It is not uncommon for people to become aggressive during heated arguments. Some might break plates, others might become verbally abusive, a few might even resort to some violence, but most sober people (i.e. not under the influence of alcohol or drugs) would stop far short of murder.

Simply because spousal killing, in the absence or alcohol or drugs, is likely to be the exception rather than the rule, this does not mean that such killings do not or could not occur. But given the rarity of such cases, the State’s starting point is far more onerous. It is not enough, in such cases, for the State to lead evidence of an argument, and then to point to the Deceased’s body, and to say to this Court: “My Lord or My Lady, you do the maths!”

It is incumbent upon the State to lead admissible evidence relating to a relevant personality disorder or character defect on the Accused’s part which might cause him, even when sober, to lose control to the extent that the Accused in this case is alleged to have done. I say admissible evidence because such evidence of an accused’s past conduct would not ordinarily be admissible. Alternatively, some other compelling evidence to support the State’s case must be adduced.

In the absence of evidence that the Accused has a rage type personality, or is prone to aggression or violence, (assuming a basis for the admission of such evidence could be properly established), and in the absence of some other compelling evidence, the State’s version must be considered as improbable, perhaps even bordering on fanciful.

Even if one assumes that the Accused was indeed overcome by anger which was directed at the Deceased, it does not follow that he, if he was indeed sober and drug free, would give vent to his anger by fetching his firearm, and walking over to the bathroom to fire through the door at the Deceased with a view to killing her.

Even if the Court accepts that the Accused was so angry that he wished to rid himself of the Deceased permanently, the State’s version that he would shoot and kill the Deceased in order to achieve this aim, is improbable. 

It is far more probable that the Accused would instead have demanded that the Deceased should get out of his House and never return. This would also rid the Accused of the Deceased, if that is what he intended.  There are a host of other more likely options the Accused in such a position may have chosen. None of them involve murder.

The Accused was not married to the Deceased, nor, as I stated earlier, would there be any financial considerations which might typically cause some husbands to consider murder. Other spouses may consider murder to avoid drawn out and costly divorce proceedings.

The suggestion that the Accused was so angry that he wanted to teach her a lesson is one thing. That might lead to a minor or even a serious assault if the accused were prone to such acts of violence against women.

But to suggest that the Accused would elect to punish the Deceased by shooting her, when he was sober enough to realise that this would ruin his entire life in the process, is a theory so preposterous that it borders on the absurd. That is not to say that the States theory is impossible. It anything is possible. However, when viewed against the totality of the known facts, the State’s version has to be regarded as being highly improbable. In percentage terms, I would say that the likelihood of the State’s version being true has to be less than five percent.

The State’s theory that the Accused intentionally killed the Deceased following an argument can be traced to the inception of the matter. Doubtless, the theory found its root in some snippet of information gleaned from a witness to the effect that arguing had allegedly been heard in the early hours of the morning and that the shots which were heard followed reasonably shortly thereafter.

The Investigating Officer, faced with such evidence, quite possibly assumed that the toxicology reports would reveal alcohol or drug excesses which typically accompany domestic violence callouts.

Perhaps the investigating officer assumed that such evidence would go some way to explaining why the two protagonists were awake and arguing at such an early hour. In addition, if the Accused could be shown to have taken drugs or if it transpired that he was under the influence of alcohol at the time, it would assist to explain why he might have killed his girlfriend in circumstances where he seemingly had no motive to do so.

At one point, it was even suggested by someone on behalf of the State that a substance suspected to be steroids was found at the Accused’s home. This later turned out to be a permitted supplement.

Steroids are also known to have the side-effect of making their users extremely aggressive. Whatever the case, the State no doubt realised that it needed some drug, alcohol or steroid abuse to bolster their theory.

When the Accused’s toxicology report revealed an absence of alcohol, drugs, or steroids, the State no doubt concluded that it now faced an uphill battle to explain the Accused’s over reaction to an alleged argument. Hence the addition of further charges which were no doubt chiefly intended to prove that the Accused suffered from personality disorders or character defects which rendered him capable of reacting to an argument in a manner consistent with the State’s theory.

The State led evidence to demonstrate that the accused was negligent with guns. They sought to demonstrate that he could be confrontational, arrogant, and even self-centred. I do not intend to dwell on the evidence led or upon any conclusions the State expected the Court to draw. Suffice it to say that there was no evidence of any personality defect or character disorder involving violence or sadism or the like which suggested that the Accused, as a sober person, would be likely to have deliberately killed the Deceased following an argument between them.

Of course, the accused’s history of a negligent and cavalier attitude in regard to firearms is relevant in regard to any charge relating to Culpable Homicide. It is also relevant to any charge of negligence in the discharge of a fire-arm and to any Order a Court might make in regard to his suitability or otherwise to continue to hold a fire-arm licence. But it takes the State’s case no further in regard to the main charge of murder.

The Accused is a highly goal directed person whose career and public image are important to him. No matter how angry the Accused may have been, he was sober, and thus he must have known that shooting at the Deceased could kill her or could seriously injure her, and that shooting at her through a bathroom door would result in criminal charges which would inevitably destroy his livelihood and indeed, his entire life, as indeed it has.

As stated above, the Court must accept, that it is far more likely that if the Accused became so angry with the Deceased that he wanted to rid himself of her, he would have asked or demanded in no uncertain terms that she leave his home.

There is no evidence to show that the Accused is prone to resorting to violence of any description against women.

There is no evidence to show that the relationship between the Accused and the Deceased was conducive to a rage type killing by the Accused.

It is clear from the above that even if the Court accepts the State’s version that an argument occurred between the Accused and the Deceased in the early hours of the morning in question, this does not render the State’s version regarding the Accused’s reaction to that argument as being either probable or reasonable.

 

Chapter 3 – The screams attributed to the Deceased

 

The question arises as to whether the State managed to prove that the alleged argument even occurred. The other question which arises is whether the State led any other compelling evidence which might deliver its version from the realm improbability to which the Court has dispatched it.

The State places reliance upon expert evidence from a pathologist suggesting that the Deceased’s last meal occurred at around 1 a.m. which is at variance with the Defence version that the parties went to bed an hour or so earlier. Instead this expert evidence was tendered to support the State’s version that the parties argued from around 2 a.m. or so until the shooting incident occurred an hour or so later.

As the Defence have correctly argued, the State’s evidence does not conclusively establish that the Deceased’s last meal occurred at 1 a.m. The State’s evidence is that the Deceased’s last food intake could have occurred at around 11 pm.

In any event, even if the Deceased did elect to have a snack in the early hours of the morning, it does not prove that the Accused was awake at the time, nor does it prove that the parties were engaged in an argument.

The only witness who refers to an argument is Mrs. Van der Merwe. Her evidence is that she woke up just before two a.m. and heard the voice of a woman. She could not identify the language which was being spoken nor say where argument was coming from. The voice was quiet or inaudible at times before she heard it again. At around or just after 3 a.m. she heard gunshots.

Mrs Van der Merwe’s evidence does not establish that the voice she heard was indeed that of the Deceased or that it emanated from the abode of the Accused.

Given that the Court cannot place any reliance upon the expert evidence regarding the timing of the last food intake of the deceased, and that the Court can also not place reliance upon the evidence of Mrs Van der Merwe, the State’s version that an argument occurred between the Deceased and the Accused between 1am and the time of the shooting cannot be accepted by this Court.

The absence of proof of the alleged argument undermines the alleged, but already improbable over-reaction by the Accused on which the State relies.

The State sought to bolster its version by referring to the Accused’s poor performance during cross examination.

This argument ignores two fundemental problems which confront the State. Firstly, the State sought to put its own unlikely, highly improbable theory of what transpired to the Accused during cross examination. At no stage during the cross examination of the Accused did the State elicit any reply or response which advanced its own unlikely theory of what transpired.

Even if, for argument’s sake, the State had totally destroyed the Accused’s version in cross-examination and shown him to be a liar on each aspect of his evidence, the State won’t be able to profit from this unless it has, at the very least, built a case of its own which is probable when considered against all the known facts. This the State did not do. What is the Court to do if the State succeeds only in proving the Accused is a liar but fails to put up a case which is probable? The State bears the onus to prove its case beyond a reasonable doubt. This requires building a case before it seeks to destroy the Defence’s version. Destruction of the Defence’s version alone, which did not occur in this case, cannot cure the improbabilities inherent in the State’s case.

The Court accepts that the Accused contradicted himself at times. It may even be said that the Accused’s evidence may not necessarily have been true in every single respect, but this does not mean that the Accused’s version, as a whole, falls to be rejected in favour of the State’s fanciful theory.

The State argued that the Accused’s version ought to be rejected as improbable. The difficulty the Court has with this argument is that the State’s version that the Accused, not being under the influence of any substances, deliberately shot and killed the Deceased in cold blood pursuant to an argument, is even more improbable than that tendered by the Accused. The Court is reluctant to attach much weight to any inconsistencies by an accused who was confronted with, and who tried to counter such an improbable or unlikely State case.

Alternatively stated, the State cannot put it to the Accused in cross examination that his version is unlikely or preposterous when the State’s version, on the known facts, suffers from precisely that problem.

Some of the cross-examination of the accused related to less than reliable evidence the State had adduced in regard to a contaminated crime scene. Little if any weight can thus be attached to many of the discrepancies in the evidence of the accused in response to cross-examination about the location of items in his bedroom and regarding other aspects of the crime scene.

The State’s fundemental problem is that it hung its hat on a theory aimed at a conviction on the main charge. It sought to cross examine the accused on this version.

And yet, some questions directed to the Accused appeared to be directed at securing admissions aimed at securing a conviction on the alternative charge of culpable homicide.

There is a saying which applies to civil cases.

“One can plead alternative versions in one’s pleadings, but one’s client cannot give evidence in the alternative in the witness box.”

The same applies to the strategy one seeks to employ when cross-examining. Up until the close of the State’s case, the State enjoyed the luxury of advancing its case on the murder charge, knowing that on the admitted facts, the Accused faced an uphill battle to defeat a charge of culpable homicide.

However, by the time the State commenced cross examination, it had a decision to make. Which version would it put to the accused?

“Mr Pistorius, I put it you that, on your own version, you were negligent?” Or

“Mr Pistorius, I put it to you that your version is false. You were angry. So angry that you wanted to kill the Deceased. And you did just that?”

The former question requires that the Accused’s version that he did not know the Deceased was in the bathroom has to be accepted by the State. (This also applies where the State seeks to gain a conviction for murder dolus eventualis using the Accused’s version.)

The latter question requires that the Accused’s version must be rejected and exposed as a lie.

Cross examining on both versions is not an option. Questions which leave the Accused wondering which charge he is defending himself against only serve to undermine the State’s case.

In my view, the State ought to have realised before the commencement of cross-examination that its prospects of success on the murder dolus directus charge were negligible. This would have left the State free to launch an all-out attack using the Accused’s own version against him in an endeavour to shore up its case for a conviction on culpable homicide or murder dolus eventualis, both charges which operate on the assumption that the Accused’s version, that he did not know his girlfriend was in the bathroom is the truth.

The Accused was the only person who could testify as to what had actually transpired. The Accused’s version, that he believed an intruder was in the bathroom, that he fired at this intruder, and that he only afterwards discovered that the person he had shot at was the Deceased, was consistent throughout. I say this despite that the Accused varied his version to suggest that the firing of the shots was an almost automatic reaction on his part to a noise he heard rather than the necessary result of an actual decision on his part to fire.

The State, however, also relies upon the evidence of ear witnesses who claim they heard a woman’s bloodcurdling screams prior to the shots being fired.

The State’s version is that these screams were obviously those of the Deceased, who, fearing for her safety, had locked herself in the bathroom to escape from the Accused.

If the State’s version is that the screams were indeed those of the Deceased, it follows that this would have removed all doubt in the mind of the Accused about the identity of the person behind the bathroom door.  The State suggests that despite these screams, the Accused intentionally and in cold blood, intentionally elected to shoot at the Deceased through the bathroom door. 

The Defence’s response to this evidence is that the high pitched screams these ear witnesses heard were in fact the agonised screams of the Accused after he realised that he had mistakenly shot the Deceased. The Defence also contends that the so-called shots which followed these screams were in fact the noises made by the accused’s cricket bat, which he used to pound against the locked toilet door to break it open.

During the cross examination of the State ear-witnesses, it was put to them by Defence Counsel that the Defence would lead expert evidence to show that the Accused screams like a woman when he is highly agitated and further expert evidence would be led to show that the sound made by the cricket bat as the Accused banged against the toilet door could easily have been mistaken as shots by anyone who heard it.

The first problem the Defence have to overcome in this regard is that, at no stage during the Defence’s case were such expert witnesses called. 

The second problem for the Defence is that the evidence regarding the screams and the shots was tendered by several State witnesses. None of these witnesses were prepared to concede that they were mistaken about the voice they heard being female. These witnesses were all independent witnesses. In the absence of compelling expert evidence or some other very good reason, as to why their evidence ought to be treated with caution, a Court would usually be reluctant to disregard the testimony of several independent ear-witnesses which corroborate each other.

The Defence, however, have explained why they did not regard it as necessary to call the expert witnesses they initially intended to call. They say that, at the end of the State’s case, they were in position to consult with other witnesses, some of whom lived even closer to the Accused’s residence at the relevant time, and who the State apparently interviewed, yet chose not to call. Some of these Defence witnesses confirm that the screams which preceded the sound of so-called gunshots was male not female.

This alone casts some doubt upon the evidence of the State witnesses and might even, on its own, constitute reasonable doubt about whether the Deceased screamed prior to the shots being fired.

However the Defence went further and compiled a timeline in which they sought to link the evidence of all the ear-witnesses to the undisputed times of various telephone calls which were made to inter alia the complex’s security guard station. The times of these phone calls were electronically recorded and are not in dispute.

The Accused’s version is that he fired four shots in quick succession and subsequently, when he realised it might have been the Deceased who was in the toilet, he struck the toilet door three times with a cricket bat. The door panels cracked as a result of which the Accused could remove some of the door panels so as to gain entry to the toilet.

Therefore, it is the Accused’s version that the first sounds any witnesses heard were caused by the gunshots and the second sounds were caused by the cricket bat striking the door.

It is not in dispute that the Accused fired four shots which penetrated the toilet door. It is also not disputed that the toilet door was struck by a cricket bat.

In his bail affidavit, the Accused dealt with the first sounds as being the shots and the second sounds as being the sounds caused by the cricket bat striking the door.

When the Accused deposed to his bail affidavit, he was neither privy to the statements in the police docket nor to the evidence to be led at the bail application. He could not have known that Dr Stipp and Mrs Stipp would testify about the first sounds and the second sounds. This is a pointer towards the accused’s credibility. It would not have been in his interests to have provided the details he did at the bail hearing without knowing how many of those details the State could easily contradict.

On an analysis of the timelines for the chronology of events, the first sounds would have occurred at any time between 3:12 and 3.14 and the second sounds at 3:17.

It was only shortly after Dr Stipp testified that the four shots would have fatally injured the Deceased and that she would not have been able to scream after the shots that the State placed on record (for the first time) that the second sounds at 03:17 were the gunshots.

This the State was “forced” to do as it was then evident that if the first sounds were the gunshots, the “female screaming” heard by Mr Johnson, Mrs Burger, Dr Stipp and Mrs Stipp, could not be true.

The Defence submits that the State’s election was opportunistic, but self-destructive. On the one hand the State’s case is that there was an argument (female voice talking) then the shots. On the other hand the State’s case is that there was a female screaming, then the shots.

Factually, the “arguing” before the shots relied upon by the State on account of Mrs van der Merwe’s evidence and the female screaming before the shots, could not have occurred during the same time period.

Mrs van der Merwe heard the female voice before the first sounds, and the crying out after the first sounds (the State’s allegations of “arguing” and then the shots). Dr Stipp, Mrs Stipp and Mr and Mrs Nhlengethwa heard the screaming or crying out loud after the first sounds.

According to the Defence’s time analysis (supra) Mrs Burger, Mr Johnson and Mrs Motshwane also heard the screaming/crying out loud after the first sounds.

On the State’s case, through the evidence of Mrs van der Merwe, there was an argument and then the shots (being the first sounds) and then the screams. However, the State elected to make the second sounds the gunshots, contrary to Mrs van der Merwe’s evidence.

The Defence have argued that both sounds (the first and second sounds) could not have been the four gunshots.

According to Dr Stipp, the first sounds sounded like gunshots and the second sounds sounded similar/identical. It was therefore not necessary to call an expert to “prove” that the sound of a cricket bat striking a door may sound to the layperson like gunshot sounds, as one of the sounds must have been gunshots and the other sounds the cricket bat striking the door.

The Defence aver that their expert Wolmarans and his report in any event testified that the cricket bat striking the door could resemble the gunshot sounds to a layperson.

The State contented that in the examination of some of its witnesses that the interval between gunshots being fired, as opposed to a cricket bat repeatedly striking a door, could not be identical intervals.

However, apart from failing to call any witness to testify in accordance with this, the State called Dr and Mrs Stipp. The factual position is that Dr and Mrs Stipp were unable to distinguish between the sounds of, and the intervals between the gunshots and the cricket bat striking the door.

The Defence have submitted, correctly in my view, that the State has not presented any evidence or put any statement to the Accused as to what the first sounds would have been, if they had not been the gunshots. If the first sounds were not the shots, State would bear the onus of explaining what they were since the evidence of these noises were introduced by State witnesses Dr Stipp, Mrs Stipp, Mrs van der Merwe and later confirmed by Mrs Nhlengethwa.

Mrs van der Merwe heard four shots in quick succession. It accords with the four shots and the version of the Accused. Mrs Stipp and Dr Stipp heard three shots in quick succession. It is conceivable that these witnesses could have been wrong about the number of shots (the first sounds).

The first sounds heard by Dr and Mrs Stipp caused Dr Stipp to call security at 3:15:51 to report the shooting. In addition, he attempted to call 10111 to report the shooting. This was at 03:17.

What is significant about Mrs Stipp’s statement is that she described the first sounds she heard as sounding like gunshots and the subsequent sounds (at 03:17), although sounding like gunshots, as three thud sounds. The three thud sounds (as described by Mrs Stipp) are consistent with the Accused striking the toilet door three times with the cricket bat at 03:17.

If the second sounds were the gunshots, the Defence then contend that there would not be enough time for the various actions which did occur between the shots and his making a phone call to Johan Stander at 03:19:03. I now turn to deal with these actions.

According to Mr Johnson he called security at 03:16 and the duration of the call was 58 seconds. He then went back to the balcony. He heard screaming and then the shots. This means that the second sounds could not have been before 03:17:15.

This accords with Dr Stipp’s evidence that he tried to call 10111 at 03:17. He had difficulties getting through. He then heard the second shots. Mrs Stipp looked at the bedside clock and saw that it was 03:17.

Consequently, there was, at best 1 minute and 45 seconds between the second sounds and the call to Johan Stander at 03:19:03.

The Defence contend that on the accepted facts, the following actions could never fit into a 1 minute, 45 seconds time frame.

The Accused fired four shots at about 03:17:15.

He went back into the bedroom and attached his prosthesis, which would have taken him about 30 seconds.

Although the State initially contended that the accused was on his stumps at the time he struck the door with his cricket bat, this was abandoned after concessions by State Expert witness Colonel Vermuelen and the Accused was never challenged on this point during cross examination.

The Accused kicked the door. The prosthesis footprint caused by the kicking was evident. Wolmarans testified to this when the sample of the footprint prosthesis was taken and handed to Dixon. Colonel Vermeulen did not examine the kick mark as it was not part of his instructions.

He went back to the bedroom to fetch the cricket bat.

He went back to the bathroom and struck the toilet door three times with the cricket bat – this damaged the door.

He removed some of the panels of the door to allow him to see inside the toilet.

The Accused then looked for and found the key and unlocked the door. He went inside the toilet and struggled to get the Deceased out of the toilet.  He tried to phone from the cell phone of the Deceased but could not as he did not know her pass code.

He went back to the bedroom to fetch his cell phones from the bedside table. The blood marks in the area of the bedside table support provide support for the Accused’s version that he collected his phones from the bedside table and made the call to Johan Stander after he had opened the toilet door and pulled the Deceased out. The blood from his hands transferred (cast-off) to the left bedside table where the cell phones were. Colonel van der Nest stated that cast-off occurred when “blood would move from your hands onto surrounding objects”.

The Court accepts the Defence’s contention that, leaving aside the disputed movements by the Accused, the second sounds could not have been the shots as there was insufficient time between 03:17:15 and 03:19:05 for all the actions referred to above to have taken place.

The Court is of the view that it is highly improbable that the second sounds could have been the gunshots. In that case, the Court must accept it as probable that the ear witnesses heard the Accused screaming/shouting for help after the first sounds as per the Defence’s timeline analysis.

The Defence also relies upon a further reason as to why the second shots are unlikely to have been gunshots. This is because the witnesses heard the Accused screaming/shouting for help after the first sounds as per the timeline analysis above.

It does not make sense and it is highly improbable that the Accused would have shouted/screamed for help (before the second sounds) and in particular screamed as if being attacked (according to Mr Johnson and Mrs Burger), if he was threatening the Deceased and was about to kill her.

It does make sense that the Accused would have shouted for help after the first sounds, as he had by then fired the shots and that he would have screamed as by then he realised the true existence of the situation. It would not make sense that he would have shouted for help before shooting the Deceased.

It cannot be suggested that the Accused shouted for help after the second sounds as this would be contrary to the evidence of Mrs Burger, Mr Johnson, Mrs Viljoen and Mrs Nhlengethwa.

Mrs Viljoen heard the shouts for help approximately five minutes before asking Johan Stander what was wrong (which was straight after he received the call from the Accused at 03:19).

Mrs Nhlengethwa’s evidence that the shouting for help by the Accused was before 03:16, is also confirmed by her telephone data.

A further difficulty for the State is that Vermeulen’s evidence, confirmed by Dixon and Wolmarans, is that the door was damaged by the cricket bat, after the shots had been fired.

The Court is also of the view that if the Deceased was in the toilet behind a locked door between the first and the second sounds (approximately 5 minutes), she would have used her cell phone to phone or message for help.

The Court must also have regard to the fact that the accused’s bladder was empty. No urine was found in her clothing/legs to indicate that she had lost control of her bladder. According to Professor Saayman it is indicative that she emptied her bladder shortly before her death.  This is more consistent with the Deceased going to the toilet to relieve herself than her fleeing to the toilet to seek refuge.

The Court therefore comes to the conclusion that it is not a matter of whether or not the Accused should receive the benefit of the doubt in relation to what the first sounds were and what the second sounds were. An analysis (supra) of the evidence, even if the evidence of the Accused is excluded, makes it clear that the first sounds were the gunshots and the second sounds were the cricket bat striking the door.

The inevitable consequence of the Court’s finding that the first sounds were the gunshots is that it could not have been the Deceased who was screaming as she was fatally wounded and would not have been capable of screaming after the four shots.

Mr and Mrs Nhlengethwa, as well as Mrs Motshwane, as the immediate neighbours and being in close proximity, heard a man crying out loud, and not a woman screaming, at the same time Mrs Burger, Mr Johnson and Dr and Mrs Stipp heard a female screaming.

Mrs Van Der Merwe heard the screaming - a crying out loud at the same time. She thought it was a woman, but her husband told her that it was the Accused.

The Court is thus unable to come to any finding that the Deceased was heard to scream before she was shot.’

 

Chapter 4 –The relationship between the parties

 

The State also lead evidence of the relationship between the parties in an endeavour to overcome its difficulty with the inherent improbability of its version. I do not propose to deal in any detail with the evidence regarding emails and text SMS messages exchanged between the parties.

Suffice it to say that on balance, the Court cannot come to a conclusion from any of evidence led, that the relationship between the parties was anything out of the ordinary.

The Court was invited to attach significance to one or two, out of hundreds of communications between the parties, and to conclude from them that the Deceased was fearful of the Accused or, at the very least, that the relationship was a volatile one instead of the loving one as portrayed by the accused.

The Court cannot draw such far reaching conclusions from the communications relied upon. Relationships are dynamic and words used during arguments or disagreements are often ill-chosen and the subject of regret.

Having regard to all of the aforegoing, the State has failed to prove its version even on a balance of probabilities, the standard of proof in a civil case, to say nothing of beyond a reasonable doubt, which is the required standard in a criminal case.

 

Chapter 5 – Dolus Directus or Direct Intent

 

This leaves the Court with the version of the Accused.

The Court cannot ignore the fact that immediately after the incident, and at the scene of the event, the accused told witnesses that he shot the deceased believing that she was an intruder. This version was reiterated under oath at the bail hearing, and subject to the variations I mentioned above, it was the accused’s version at this trial.

There is no evidence before this Court to suggest that the Accused ever planned for the events which transpired in his home that night to in fact occur.

There is no evidence to suggest that the accused had any motive or reason to kill the Deceased. The Court accepts therefore, that the Accused had nothing to gain and everything to lose by killing the Deceased.

The Accused’s version is that he awoke after 3 a.m. and got up to close the balcony door which involved moving a fan. Before doing so, he spoke briefly to the Deceased who was in bed next to him at the time. After closing the balcony door, he heard a noise from the bathroom. Fearing an intruder had entered the premises, he rushed to get his firearm and he headed towards the bathroom.

He indicated that, at the time, his bedroom was so dark that he could not see much at all. As a result, he did not see that the Deceased was no longer in bed. He assumed that she was still there.

It was suggested that it was unlikely that the Accused would not first have checked to check if the Deceased was still in bed. The Accused says he was satisfied that she was still where she had been a few moments earlier when he had spoken to her.

The fact that some or most people would have checked to see if their loved one was indeed still there, is neither here nor there. The accused’s explanation for failing to check is not inherently improbable. Furthermore, having concluded that there is not a shred of evidence to suggest that what ultimately occurred had been intended by the Accused, the Court has little choice but to accept the Accused’s version on this aspect as being reasonably possibly true.

The accused’s evidence was also that he was too afraid to switch on a light in the bedroom, and after he had said to the Deceased that she should phone the police, he approached the bathroom whilst screaming words to the effect that the intruder/s were to leave his house.

It has been put the Accused that if this indeed occurred, the Deceased, who was in the toilet would surely have said something to alert the Accused to her presence. Whilst that possibility is not unreasonable, the Court also considers it equally if not more possible that on hearing the Accursed shouting at an intruder somewhere in the home, the Deceased would have decided to lock the toilet door as quietly as possible and to keep quiet until she could be sure it was safe for her to speak or to emerge from the toilet.

The Accused says he observed that the bathroom window was open and thus he believed that the intruder/s was/were at that stage within the confines of the toilet. It is common cause that the bathroom window was open.

The Accused testified that heard a noise emanating from the toilet and in his vulnerable state, believing that the intruder/s posed a serious threat of harm to his and the Deceased’s safety, he fired shots at the toilet door, after which he shouted for the Deceased to phone the police. The Accused’s vulnerable state, he testified, was exacerbated by his limited mobility, due to him being on his stumps and not having had the benefit of the use of his prosthesis.

At this juncture the question arises as to whether the Deceased may have screamed after the first shot and if so, whether any negative conclusions could be drawn against the Accused arising from his continued firing of the remaining shots.

The Court, however, accepts the Accused’s version that the volume of the first shot, especially in such an enclosed space, would have deafened him to any attempts by the Deceased, if any, to indicate that he was actually firing at her and not at any intruder.

Subsequent to the discharge of his firearm, the Accused says he returned to the main bedroom, in search of the Deceased. Having not found the Deceased, he returned to the bathroom and found the toilet door locked. 

The Accused returned to the main bedroom, and having opened the sliding door, he exited onto the balcony and screamed for help.

He indicated that he was (at the time of the shooting incident), acutely aware of the prevalence of violent crime being committed by intruders entering homes and that he had in the past, been a victim of violent crime.

During cross examination, Mr Nel put it to the Accused that if he had spoken to the Deceased, the two of them could have taken “lots of other steps”, namely that they could have gone to the balcony, or hidden behind the bed.

The Accused stated that instead of cowering and running away, when he heard the noise made by the bathroom window, he wanted to put himself between the Deceased and the danger.

The Accused, having acknowledged the possibility that he and the Deceased could have fled via the main bedroom door, he did not follow that route as he has very limited mobility (whilst on his stumps) on a hard surface, such as tiles.

The Accused stated that he heard a door slam. This he understood to have been the toilet door slamming closed, which to him, confirmed that there was someone inside the toilet, or at the very least inside the bathroom.

In cross-examination, he testified that he thought that someone had either gone into the toilet, or that someone, having kicked the toilet door, was in the process of fleeing the house. Having positioned himself at the entrance to the bathroom, he observed that,

“There was no light in the bathroom” but light from the outside made it possible to see in the bathroom He observed that the bathroom window had been opened.

At that time he was unsure of whether there were people/intruders inside the toilet or whether they were on a ladder that they could have used to gain access to the bathroom, or whether they were “around the corner at that point”, meaning them being positioned within the bathroom. At that point in time, he had his firearm pointed in front of him.

Whilst at the entrance of the bathroom, the Accused again screamed for the Deceased to phone the police. In his mind, he was not sure whether someone was going to exit the toilet to attack him, or whether someone was going to climb up the ladder and attack him by shooting at him. He heard a noise from inside the toilet and he perceived this to be someone coming out of the toilet. He furthermore testified, “Before I knew it, I had fired four shots at the door …”

The Accused suggested that the sound of wood moving, resembled the door being opened. He testified that the door made a knocking noise when it opened.

He returned to the bedroom and searched for the Deceased. Having been unable to find the Deceased, he returned to the bathroom and found the toilet door locked. It dawned upon him that it could have been the Deceased in the toilet, when he realized that she was not on the bed.

He returned to the bedroom, opened the sliding door and screamed “Help, help, help”.

The State never asked the Accused if he would have shot if he thought that the Deceased might have been in the toilet. The Defence submits that Mr Nel knew that the Accused would not have discharged his firearm in such an event.

On the evidence before it, the Court has no choice but to accept that had the Accused been alerted to the Deceased’s presence in the toilet, he would not have discharged the firearm.

The Court accepts, therefore, that the Accused did not want to shoot the Deceased, nor did he foresee or reconcile himself with any possibility that it might have been the Deceased who was in the toilet, since he believed that she was in the bedroom. In the premises, the Court finds that the Accused cannot be found guilty of the intentional killing of the Deceased. That dispenses with the murder charge - direct intent or dolus directus.

 

Chapter 6 – Dolus Indirectus or Legal Intent

 

The next question is whether the Accused acted with dolus eventualis or legal intent in regard to the death of the Deceased. 

In S v Humphreys 2013 (2) SACR 1 (SCA) at para 12 on p 201 the Supreme Court of Appeal (SCA) confirmed the test for dolus eventualis to be:

“(a) Did the appellant subjectively foresee the possibility of the death (of his passengers) ensuing from his conduct; and

(b) did he reconcile himself with that possibility (see eg S v De Oliveira 1993 (2) SACR 59 (A) at 65i – j)?”

In the Humphries case the Court held that:

“It is not enough that the appellant should (objectively) have foreseen the possibility of fatal injuries to his passengers as a consequence of his conduct, because the fictitious reasonable person in his position would have foreseen those consequences. That would constitute negligence and not dolus in any form. One should also avoid the flawed process of deductive reasoning that, because the appellant should have foreseen the consequences, it can be concluded that he did. That would conflate the different tests for dolus and negligence.”

In S v Tonkin 2014 (1) SACR 583 (SCA) par 11, the SCA confirmed that the second leg of dolus eventualis, that the accused must have reconciled himself with the foreseen possibility, was again referred to. The SCA reiterated that the second leg is also a subjective application of the Accused reconciling himself. The SCA said the following in this regard:

“[11] This statement, as I see it, potentially exposes the magistrate to the criticism that, despite his express reference to the element of reconciliation as an essential ingredient of dolus eventualis, he never actually enquired into the presence of that element at all. In consequence, he fell into the trap against which this court recently reiterated a note of warning in S v Humphreys 2013 (2) SACR 1 (SCA) paras 15 – 17. Reconciliation, so this court emphasised in Humphreys, involves more than the perpetrator merely proceeding with his or her proposed conduct, despite the subjective appreciation of the consequences that ensue. If the perpetrator genuinely believed — despite the unreasonableness of that belief — that the foreseen consequences would not materialise, the element of reconciliation cannot be said to be present. The form of fault in this instance would be luxuria or conscious negligence, but not dolus eventualis (see eg S v Ngubane 1985 (3) SA 677 (A) at 685A – H).”

Therefore the questions to be asked are: Did the Accused subjectively foresee that it could be the Deceased in the toilet?

And, if so, notwithstanding that, did he then fire the shots, thereby reconciling himself to the possibility that it could be the Deceased in the toilet?

Having regard to the facts, Court accepts that the Accused believed that the Deceased was still in the bedroom. He had in fact told her to phone the police and when he was at the bathroom door he shouted for her to call the police.

It is also accepted that immediately after the shooting he looked for the Deceased in the bedroom. It was only then that he realised the Deceased might have been in the toilet.

The Accused’s belief that the Deceased was in the bedroom and an intruder(s) was in the toilet, is further supported by his spontaneous disclosure, very soon after the shooting, that he thought it was an intruder (see the call to Johan Stander at 03:19 and the disclosure to Carice Viljoen (03:22), Dr Stipp at 03:25 and the Police at 04:00.

His version at the bail application (before he had access to the police docket, and before he was privy to the evidence on behalf of the State at the bail application), was consistent with his belief that the Deceased was in the bedroom and that an intruder(s) was in the toilet.

It did not assist the State to put to the Accused in cross-examination that it could have been anyone in the toilet, as in the context of the case, that “anyone”, in the Accused’s mind, could not and did not include the Deceased, as his version remained unaffected that he thought the Deceased was in the bedroom.

Therefore, in applying the test of dolus eventualis, it could never ever be suggested that the Accused foresaw the possibility and reconciled himself with the possibility that the Deceased could have been in the toilet. The failure to foresee and/or the failure to reconcile one with the foreseen possibility may, depending on all the facts, give rise to a possible conviction of culpable homicide, which the Court will deal with below

 

Chapter 7 – Error in Persona & Lack of Legal Capacity

The Error in Persona doctrine does not apply in this case. The Accused did not intend (in any form) to kill the Deceased. He did not shoot at the Deceased mistakenly thinking she was the intruder. He did not shoot at the intruder mistakenly thinking he was the Deceased. As far as the accused was concerned, the Deceased was never in the picture.

In arriving at a finding that the Accused had an exaggerated startle and fight response, Professor Derman explained that the Accused informed him that at the time of the event, all his muscles were tense, he was sweating and he was incredibly scared. The Defence contends that such physiological response is consistent with a finding that the Accused indeed had an exaggerated startle and fight response.

Professor Derman went on to testify that, in his opinion, the reflexive response / reaction of the vulnerable disabled Accused impacted on his incapacity to act in accordance with his appreciation of right and wrong or possibly on his ability to act and caused the discharge of the firearm.

The Court did not find Professor Derman to be a particularly impressive witness. His prior involvement and familiarity with the Accused as a professional athlete over a considerable period detracted from the impartiality which one would expect from a professional tendering the expert evidence he did. The absence of any notes from his consultation with the Accused only served to further undermine the Professor’s impartiality and his credibility.

The fact that the Defence in part called this Professor in order to elicit factual evidence of which the Professor was personally aware is one thing. He could have been called as a witness on such matters only. But any expert evidence to show that the Accused in fact suffered from an exaggerated startle or fight response which may have impacted upon his criminal capacity ought to have been adduced by a completely independent expert.

In addition, the defence based upon the lack of criminal capacity was introduced for the first time during the Accused’s evidence in chief. In this regard it was at odds with the version of the accused as set out in the bail application as well as being at odds with the Accused’s statement in terms of Section 115 of the Criminal Procedure Act, Act 51 of 1977.

In the bail application the Accused said that:

“…I felt extremely vulnerable, I knew I had to protect Reeva and myself. I believed that when the intruder or intruders came out of the toilet we would be in grave danger. I felt trapped as my bedroom door was locked and I have limited mobility on my stumps. I fired shots at the toilet door and shouted to Reeva…”

In his Section 115 statement, the Accused said the following:

“Whilst I admit that I inflicted the fatal gunshot wounds to Reeva this occurrence was indeed an accident in that I had mistakenly believed that an intruder or intruders had entered my house and posed an imminent threat to Reeva and me.”

Neither of these statements is consistent with a defence based upon the lack of criminal capacity.

In the event that the Defence wished to contend that the facts pertinent to this defence only became apparent sometime after the commencement of the trial, it would then be incumbent upon the Defence to have the accused assessed by one or more leading, professional and totally independent medical expert(s) in their fields.

In circumstances where an additional defence such as the lack of criminal capacity is raised during the Defence case for the first time, and where it is not dealt with at all in the Sec 115 Statement or the Affidavit tendered at the Bail hearing, it would be expected of the Defence to consider taking the Court into its confidence as to why this additional defence is only being raised now, and why it was not dealt with at the Bail hearing or in the Section 115 statement. There may indeed be a sound reason as to why this has occurred and if it is or can be revealed to the Court, it will prevent any negative inferences from being drawn against the accused for the omission to raise the factual basis of such defence earlier.

In the light of the above and given its inconsistency the Accused’s prior statements as dealt with above, the Court therefore rejects the defence based on the lack of criminal capacity.

Chapter 8 – Putative Defence & Culpable Homicide

 

Instead the Court accepts that the accused’s version that he intentionally discharged the shots in the belief that the intruder/s was/were coming out of the toilet, to attack the Accused and the Deceased as being reasonably possibly true.

S v de Oliveira 1993 (2) SACR 59 (A) is a case dealing with putative private-defence and dolus eventualis. The Court stated if an accused honestly believes that his life or property was in danger, but objectively viewed it was not, the defensive steps he took could not constitute private defence. If in those circumstances he killed someone, his conduct was unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus, in which case liability for the person’s death based on intention would also be excluded; at worst he could then be convicted of culpable homicide.

Although the test for private defence is objective - would a reasonable man in the position of the accused have acted in the same way (S v Ntuli 1975 (1) SA 429 (A) at 436E), the test for putative private defence it is not the lawfulness that is in issue but culpability in which event his subjective intention is considered in offences requiring intent.

As stated above, the incorrect belief that a person acted in self-defence needs not to be reasonable, as the test remains subjective in regard to offences requiring intent. If he acted in an unreasonable manner he may be exposed to culpable homicide.

In short, if the Accused bona fide but mistakenly believed that he acted in self-defence (private defence) he could not be held liable on account of murder as he lacked the requisite intention to commit a murder.

This Court is satisfied that the Accused bona fide but mistakenly believed that he was acting in self-defence.

The question then arises as to whether the accused’s belief that he was acting in self-defence was reasonable.

In terms of Section 258 of the Criminal Procedure Act culpable homicide is a competent verdict to a charge of murder.

In order to determine whether or not the Accused was negligent in causing the death of the Deceased, our courts have traditionally applied a three-part test:

“(a) Would a reasonable person, in the same circumstances as the accused, have foreseen the reasonable possibility of the occurrence of the consequence or the existence of the circumstance in question, including its unlawfulness?

b) Would a reasonable person have taken steps to guard against that possibility?

(c) Did the accused fail to take the steps which he or she should reasonably have taken to guard against it?”

If all three parts are confirmed then the Accused’s conduct would be regarded as negligent.

Although the test for negligence is objective, certain subjective factors are applied as a modified form of blameworthiness.

In Harrington No and Another v Transnet Ltd t/a Metrorail and Others 2010 (2) SA 479 (SCA) at p492 Heher JA stated:

“The observations of Wessels CJ 17 uttered 75 years ago in South African Railways v Bardeleben 1934 AD 473 at 480 still have force:

In judging whether there is culpa, the Court must, as nearly as it can, place itself in the position of the engine driver at the time when the accident occurred and judge whether he showed that ordinary care which can reasonably be expected from a reasonable man under all the circumstances. The Court must not in any way be affected by the tragic consequences of the accident, nor, on the other hand, must it excuse any carelessness on the part of engine drivers. It must not expect superhuman powers of observation or an impeccable discretion on the part of engine drivers, nor must it say to him after the event - if you had done this or that more quickly or more accurately, or if you had perceived this or that more readily, you might possibly have avoided the accident. It is so easy to be wise after the event.”

In S v Manamela and Another (Director-General of Justice Intervening) 2000 (1) SACR 414 (CC) O'REGAN and CAMERON AJ found:

“The difficulties of applying a purely objective test in a diverse society have been acknowledged by our courts and have led some commentators to suggest that the test for culpa in our law should be subjective. Whatever the merits of this suggestion, it is clear that in applying the 'objective' element in the determination of reasonable cause, the court does not ignore the material circumstances in which the accused found himself or herself. In R v Mbombela 1933 AD 269, one of the early authoritative cases establishing the objective criterion, the Court held that –

'[a] reasonable belief, in my opinion is such as would be formed by a reasonable man in the circumstances in which the accused was placed in a given case'.

[75] The approach in Mbombela's case has been followed repeatedly. In S v Van As 1876 (2) SA 921 (A), Rumpff CJ explained the origin and application of the frequently-invoked standard of the 'careful head of a family', the diligens paterfamilias. He stated: 'In our law since time immemorial we have used the diligens paterfamilias as someone who in specified circumstances would behave in a certain way. What he would do is regarded as reasonable. We do not use the diligentissimus (excessively careful) paterfamilias, and what the diligens paterfamilias would have done in a particular case must be determined by the judicial officer to the best of his ability. This diligens paterfamilias is of course a fiction and is also, all too often, not a pater (father). In the application of the law he is viewed "objectively", but in essence he must apparently be viewed both "objectively" and "subjectively" because he represents a particular group or type of persons who are in the same circumstances as he is, with the same ability and knowledge. If a person therefore does not foresee what the other people in his group in fact could and would have foreseen, then that element of culpa, that is failure to foresee, is present.”

In S v Ngema 1992 (2) SACR 651 (D) the following appears in the headnote:

“While it is clear, in applying the test of the reasonable man in determining whether or not certain conduct was negligent, that the days of full-blown objectivism (see, for example, R v Mbombela 1933 AD 269 at 272), are past, and some evidence of subjectivising the test for negligence is apparent, there is no warrant for departing holus-bolus from the old and well-established reasonable man test. The reasonable man himself, of course, evolves with the times: what was reasonable in 1933 would not necessarily be reasonable today. What has happened in practice, however, is that the reasonable man is now to be placed 'in the position of the accused'. It is not clear from the decided cases, however, what is to be included and what is to be excluded from this position. A balance between the various ideas of what is to be included and what excluded from the test should be sought along the lines of reasonableness. One must test negligence by the touchstone of the reasonable person of the same background and educational level, culture, sex and race of the accused. The further individual peculiarities of the accused alone must be disregarded.”

The Defence has submitted that there can be no doubt that disability does not form part of “individual peculiarities” and therefore it must be taken into account in the concept of the reasonable person representing “a particular group of persons who are in the same circumstances as he is, with the same ability and knowledge”.

The Defence has submitted further that to deny disability in determining reasonableness, would mean that disability is unreasonable.

The Defence submitted that the following factors which found application in persons with disability, must be taken into account as being relevant to the reasonable person with a similar disability:

The slow burn effect of the disability leaves a person in a vulnerable, fearful and anxious state.

ii. The reaction of a person to a threat or perceived threat is limited as generally he/she does not have the privilege of flight;

iii. A person with disability has an increased startle response.

Finally, the Defence submitted that the Court ought to analyse the conduct of the Accused, measured against the reasonable person, in the same circumstances as the Accused, with the same disability.

During the early hours of the morning the Accused woke up and saw that the sliding door was still open, with the fans positioned at the sliding door.

Before he got up to bring the fans in and close the sliding door, he spoke to the Deceased.

After he had brought the fans in, he heard a noise which resembled the noise of the bathroom window sliding open. It is common cause that the bathroom window was found by the police to be open.

The noise caused a freezing startle, and evoked a fight response.

The fight response was a consequence of his disability in the absence of a real flight option.

Snyman submits that “there is no duty on the attacked party to flee. To recognise a duty to flee is to deny the very essence of the present defence (of private defence). Private defence deals with the defence of the legal order, that is, the upholding of justice. Fleeing is no defence; it is a capitulation to injustice. Why must justice yield to injustice?”

Burchell says: “Likewise, the inhabitants of dwellings are not expected to flee from their homes rather than resist the intrusion of a burglar or thief.”

Moreover, when a person’s ability to flee is compromised by disability, it would be even more unjust to deny him the right to protect himself and the person he loves.

Accordingly, the Defence submits that it was not unreasonable to arm himself and approach the bathroom so as to confront the intruder/s.

The Defence also suggests that it was also not unreasonable to point his firearm at the toilet door, where the perceived danger was and from which he had to protect himself in the event of an attack on him.

The question is whether or not the Accused was negligent (as per the test to be applied for negligence) by discharging the firearm.

The Defence submitted that in considering the above, the disability and the effects of disability on the Accused, must be considered as the conduct of the Accused must be measured against that of the reasonable person with the same ability or disability and the effects of the disability on the reasonable disabled person may also not be discounted.

The Defence also suggests that the test the reflexive response of the Accused by discharging the firearm against the expected response of the reasonable disabled person in the same circumstances. This means one must place the reasonable disabled person, who would be vulnerable and be very anxious, at the entrance to the bathroom.

The Defence submits that one must also take into account that the reasonable disabled person could have an increased startle reflex.

The Defence concludes by submitting that consequently, the question is whether or not the Accused was negligent in his reflexive reaction to the noise of movement in the toilet, bearing in mind that the startle is controlled by primal instinct and not a considered thought process.

The Defence submitted that the Accused, in the peculiar circumstances and having regard to his disability and the effects of such disability, did not act negligently. The dire consequences of the shooting should not be taken into account in considering whether negligence has been established.

The wisdom in S v Bohris Investments 1988 (1) SA 861 (A) at 866 J – 867 B is a reminder that a Court must be cautious to judge negligence ex post facto with perfect hindsight in a position of an armchair critic. Nicholas AJA said the following:

"In considering this question (what was reasonably foreseeable) one must guard against what Williamson JA called the 'insidious subconscious influence of ex post facto knowledge' (in S v Mini 1963(3) SA 188 (A) at 196E-F.). Negligence is not established by showing merely that the occurrence happened (unless the case is one where res ipsa locitur applies) or by showing after it happened how it should have been prevented. The diligens pater familias does not have prophetic foresight (S v Burger supra at 879D). In Overseas Tankship (UK) Limited v Morts Dock & Engineering Co Limited (the Wagon Mount) [1961] AC 388 (PC) [1961] 1 All ER 404 Viscount Simonds said at 424 (AC) and at 414 G-H (in All ER) 'after the event, even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility'."

The Court accepts the Defence’s submission that it should analyse the conduct of the Accused, measured against the reasonable person, in the same circumstances as the Accused, with the same disability.

For the reasons canvassed earlier, the Court does not accept that the Defence has proved that the accused suffered from a “freezing startle” when he heard the noise in the bathroom.

Nothing turns on this, because the Court does, however, accept that the Accused’s disability prevented him from having any viable option to flee from the suspected intruder.

In the premises, the Court does not find that the Accused’s decision to arm himself and to approach the source of the noise, the so-called fight response, as being unreasonable in the circumstances which prevailed.

That said, whilst the Court accepts that the Accused genuinely believed that the Deceased was still in bed, this does not mean that the Court finds that belief to necessarily be reasonable.

A reasonable person in the position of the accused, whether disabled or not, ought to have eliminated the more likely or equally likely possibility that the source of the noise which he had heard had been caused by his house guest, and not by an intruder.

As he reached for his firearm, the Accused could have whispered to the Deceased to ascertain her whereabouts and to warn her to be prepared for a possible incident. In the absence of a response he could have reached out in the dark as he passed the foot of her bed to feel whether she was still in bed.

If the Accused were to have whispered to the Deceased and failing any response from her, if he were to have reached out to establish is she was still in bed, it would surely not have cost him more than a split second or two of additional reaction time at most. But any such time lost would surely be more than made up for by exchanging the suspicion that one is dealing with an intruder for the virtual certainty that the noise is almost certainly likely to be an intruder.

If the Accused were to have spotted or ascertained that the Deceased was not in bed, he would surely have approached the bathroom with the knowledge that he would have to take care to avoid shooting at her.

It is difficult to escape the conclusion that, in the absence of having excluded his house guest as the source of the noise, the accused ought to have made an allowance for the fact that the source of the noise might have been his girlfriend.  

Finally, the Court turns to deal with the discharge of the fire-arm at the bathroom door. The Court is mindful of the accused’s fear that his life was in danger, that he was disabled, that he accordingly feared being a victim of crime to a greater than normal extent, and also that it was dark. Yet, it cannot be that the Court, in the given circumstances, can condone the accused’s decision to fire as being reasonable.

This would give a licence to all fearful disabled persons who own firearms and who find themselves confronted with possible intruders in the dark, to ignore the rules pertaining to when one is lawfully entitled to use lethal force and when one is not, and it would allow them instead to fire indiscriminately at all unidentified suspicious noises in the dark.

The Accused’s conduct in all the circumstances, falls short of that which one would have expected from a reasonable person, even if disabled, in the same circumstances, and this Court accordingly finds him guilty of the crime of culpable homicide.

END

**A small minority of his fans however, have taken exception to some of the observations or comments I made in regard Oscar's character and in regard to his performance on the witness stand. I don't mind this at all. I understand that feelings and loyalties on both sides of the divide run high.


**If I dare to weigh in with my views, I have to be prepared "to cop some flak" and I understand and accept this.




** May I simply re-state what I said in the foreword of the Verdict, however. I did not undertake the exercise with a view to support Oscar Pistorius or any of his detractors. In regard to the accused, I called it, as I saw it. I bear none of the parties to what I believe is a tragedy any malice whatsoever,


**Since this was an exercise with an end in mind and not a real judgment, if I am guilty of anything, I perhaps rushed a little, and perhaps I may have expressed some views about the accused and perhaps also the State a little less elegantly than I would have done if I carried the burden of being the actual Honourable Judge. If I ever run into anyone involved one day, and if anyone complains about the tone of anything I wrote, I will tender any apologies which may be due...


**Instead, my intention was to attempt to defend a legal system, which, although not perfect, is one I believe in. And to this end I simply called the facts as I saw it. (I accept that some fans will say I was to harsh about OP and some detractors will condemn my views in the same way the Court's verdict was condemned.


**That too is fine. Court's judgements may be criticised, although this should be done respectfully. My opinion can be condemned, with or without respect.


**At the end of the day, however, two things remain. My verdict and that of the Honourable Trial Judge is roughly the same although some reasons differ. To that end, I believe I have demonstrated that our Criminal Justice system works and that it is not arbitrary.   (Of course, both "judgments may yet be shown on appeal to contain the same error in regard to dolus eventualis etc. )


**Secondly, and even if both verdicts are found to be wrong in part, I hope that the fact that anyone who is interested in learning about our legal system will at least be able to compare the two judgments and perhaps learn something about our system of criminal justice. Instead of being chaotic, it follows a certain and predictable order! I find beauty, and comfort in that!!

Chapter i: About the Author

 

Siegfried Walther lives in Cape Town, South Africa where he has been practising law as an Advocate (Barrister) as a member of the Cape Bar since 1999. Prior to that he practiced as an Attorney at a Cape Town law firm and also served in the South African Defence Force as a Military Law Officer.

He studied Politics and Law at the University of Cape Town. He graduated with a degree in Political Science in 1987 and obtained his Bachelor of Laws there in 1989. He regularly writes articles on legal and political issues on BlogSpot.

Siegfried Walther has been appointed as an Arbitrator in legal disputes following recommendations by his Peers or by practising attorneys.

As a child Siegfried Walther entertained three dreams. Becoming a trial lawyer. To be a professional DJ (Disc Jockey). And finally, to become an airline pilot with a view to flying one aircraft he admired more than any other: a Boeing 747-400 or the Jumbo Jet as it is more commonly known.

Siegfried Walther started his career as a DJ at school in Cape Town in 1982. He has since performed at weddings, fashion shows, Night clubs, School and university functions, house parties and New Year’s Eve functions across South Africa. He is still performs as a DJ on occasion and keeps up to date with the latest music and dance tracks.

He continues to publish his chart of current favourite tracks on his BlogSpot blog

He has also written a free guide book about iTunes and iTunes playlists. It includes advice about how to get started. Volume levelling between different tracks, all the way through to using Smart Playlists to create a virtual Radio Station which will play your chosen favourites from various playlists as often or as little as you’d like to hear them.

His choice to pursue a career in law instead of aviation was informed by the belief that being a trial lawyer would offer him with a constant series of new challenges. He feared that the life of a long haul airline pilot, which involves long hours of flying on auto-pilot, could become repetitive or boring.

In 2001 he discovered Microsoft’s Flight Simulator Programme’s and using this, and other resources, he now not only flies a variety of airliners, including the 747-400 on his simulator at home, but he now also writes extensively on aviation matters, particularly air crash investigations on his blog. On more than one occasion he has published views contradicting initial reports relating to some air crashes and in which he has offered contrary view of his own. In early 2014 he published a report on his blog criticising the conclusions of the initial French investigation into the cause of the Air France 447 of 2008 and in which he offered a contrary view. In mid-2014 five aviation experts came to the same conclusion he did.

Although he has flown and landed a small aircraft on two-occasions, he has no real interest in acquiring a Private Pilot’s licence or in VFR flight involving light aircraft. His belief that he could, if necessary, safely fly and land a 747-400 is part of a theme of another one of his books.

As a child he made various attempts to write fiction of some form or another. All these early attempts failed due when he found himself bogged down with constant editing and re-editing of early chapters and this would always reach a point where he felt unable to produce anything new until he felt that that which he had already produced was perfect.

He published his first novel In Guards we Trust in June 2013 and followed this up with another, Air Crash SA 252 at the end of that same year.

He also wrote a full written verdict as he would have delivered it in the Oscar Pistorius Trial if he had been the Judge. Not being a Judge, however, he wrote under it under the name of Judge Knott. This eBook’s publication pre-dated the actual judgment by more than two weeks. He reached the same conclusion as did the actual Judge The Foreword of that book explains his reasons for writing the Judgment and deals with numerous other aspects of interest.

Chapter ii: Other titles by the same author

 

The Powder of One (Release date 27 March 2015)

A madcap crime comedy - A tale so strange and amusing it has to be read not to         be believed.

Simon Sayer’s society wedding to the daughter of Cape Town millionaire, Sander Castle was always going to be spoken of for some time. Abby Castle’s mother, Brigitte Castle spared no expense to her endeavour to ensure it.

 

However, whenever the wedding came up in conversation, it always evoked the same question. Did they catch the scoundrel who committed that unforgivable misdeed?  Nay, let’s call it a crime, for ultimately, this is what it was. Brigitte’s hopes that that people would tire of the story were dashed when a local newspaper revealed that a meeting held between the banqueting manager of the Mount Nelson Hotel and Sander Castle had degenerated into a fierce shouting match. Sander Castle persisted in his refusal to settle an outstanding amount due to the Hotel citing his belief that the perpetrator was a member of the Hotel’s staff. The Banqueting Manager, however, remained defiant in his view that the villain had to be one of the guests.   The truth, however, would be revealed shortly after the couple returned from their Honeymoon.

 

Simon Sayer comes across a blue plastic drum floating in the surf near a deserted section of beach. He dives and shepherds the drum safely to shore. It contains thirty bricks of high quality cocaine, each weighing one kilogram. Simon impulsively decides to keep half. It’s a decision which runs counter to Simon’s law abiding nature. But the knowledge that fifteen kilograms of pure cocaine might be worth anything between four to eight million Rand. Simon hopes to dispose of the cocaine he has taken at a bargain price to one buyer in the hope of netting himself a quick one million or two million Rand.

 

To ease his conscience, he makes an anonymous call to the police informing them of a suspicious blue drum which he had spotted on the beach through his binoculars. As soon as Simon terminates this call, he realises that the correct choice was to keep some or all of the drugs, or to leave all the drugs where he found them. A call to tip-off the police could only ever be a sensible option if he chose the latter.

 

It’s too late however. Simon has invited disaster into his life and disaster comes in the form of a series of wacky characters:

 

Chief Inspector Walter Geiss and Giraffe McCloud of the Special branch suspect that Simon knows more than he is saying about the missing drugs and they keep him under constant surveillance. It’s the last thing anyone wishing to dispose of fifteen kilograms of cocaine in a discrete deal needs.

 

Sue More is an attorney who was once in partnership with her father, Robert More, Rob for short, in his firm, More & More. Now on her own, Sue offers her services as a defence attorney to Simon. However, her services aren’t all necessarily restricted to those provided by an attorney.

 

Simon suspects the police might be behind the leaked newspaper report naming him as the person who came across the blue drum containing fifteen kilograms of cocaine.

 

The report comes to the attention of the Drug Cartel who lost the drum of cocaine. Of particular interest to them is that only fifteen kilograms were in the drum which was reported to the police. Suspecting that Simon Sayer may be able to shed some light on the missing portion of that consignment they send two heavy hitters, Father Spider Biti and Brother Maximilian Payne, the two “clergymen” to Mariner’s Cove to investigate. Their mission is to persuade Simon that the sacrament of confession involves considerably less unpleasantness than the alternative of the last rites.

 

Completing a cast of larger than life characters are Spencer Fortune, Iona Fortune, Rosie Parker, Dusty Parker, Grace Eyre, Justin Blower, Willy Seymour and the “Godfather” himself Guido de Luca. (But be warned. Don’t call him the Godfather to his face!)

 

Air Crash SA 252 (December 2012)

It is around a year since a Boeing 777, Flight SA252 crashed into a township near Cape Town which is inhabited exclusively by poor black people. Media reports suggest that the delays in finalising the Air Crash Report are linked in some way to a high level-cover up. But of what? And by whom?

Bella Omondi’s husband was killed in that crash. She requires the assistance of an aviation lawyer to file a loss of support claim for herself & her three children. She’s heard of a man the media call “The Flying Lawyer.” But will he be willing to represent her on a success-fee only basis? And what if he instead accepts the lucrative monthly retainer Air South Africa are reported to be dangling in front of him?

A British Airways 747-400 has entered South African airspace heading to its destination, Cape Town International Airport. South African ATC have however been informed that an incident on board has left it without any pilots who aren’t either critically injured or dead.

To boot, the 747’s auto-land & auto-pilot functions have either been destroyed or deliberately disabled. On board, however, is a cheery fellow who claims to be flying the 747 using knowledge he acquired solely from a computer simulation game. He says the 747 is handling well manually and he believes he will be able to fly to Cape Town International Airport and land the 747 there.

Can the South African Government take the risk of allowing this man to fly over built-up areas and to land at Cape Town less than a year after the SA Flight 252 crash? If they decide to grant the requested clearance to the airliner, they have yet to tell the would-be hero that the weather in Cape Town is rainy, with a low cloud base presently at around fourteen to nineteen hundred feet above sea-level. In addition the North Westerly wind is gusting with a not insignificant cross-wind component. This requires the pilot to be able to handle the aircraft on instruments during the last third or so of the descent in addition to being familiar with flying an ILS approach on instruments and without visibility until close to the actual landing.

 

 In Guards We Trust (June 2013)

A historical adventure set in a fictitious kingdom similar to Monaco. In France the Republicans are threatening to overthrow the French monarchy and to turn France into a Republic. The predicament facing the Montugan king is that if these Republicans come to power in France, it remains unclear whether they will honour the Treaty of Montuga, concluded between the French and Montugan royal monarchs two hundred years earlier?

 

Creating your own Itunes Radio Station (February 2015)

 

A free a free guide book about iTunes and iTunes playlists. It includes advice about how to get started. Volume levelling between different tracks, all the way through to using Smart Playlists to create a virtual Radio Station which will play your chosen favourites from various playlists as often or as little as you’d like to hear them. The result should be a “radio station” playlist which ought never to repeat the same playlist anytime throughout your lifetime.

 

 

 

FIN

 

 

https://www.smashwords.com/books/view/467833 
 

 Comment: The actual Judgment is on Appeal on a narrow point of law, whether the Court could, on the Accused's version, have held that he is guilty of Murder, Dolus Eventualis (Legal intent).

How can a lawyer defend someone he suspects may be guilty? Answer below:

 

http://siegfriedwalther.blogspot.com/2014/01/defending-guilty.html


Dewani Trial Comment!
http://siegfriedwalther.blogspot.com/2014/12/dewanitrial-to-after-blasts-case.html

Music Charts

http://siegfriedwalther.blogspot.com/2015/08/dj-sg-walth-er-cape-town-top-125-09.html

Books by this writer
https://www.smashwords.com/books/view/467833