Gerrie Nel refuses to say if Barry Roux told him he would lose

NOVEMBER 3, 2015

State prosecutor Gerrie Nel said on Tuesday he could not comment on the context in which Oscar Pistorius’s advocate Barry Roux had told him that he, Roux, was going to "lose".

"No, I can’t. You should speak to Roux about it," Nel told News24, smiling as he wheeled his briefcase across the Supreme Court of Appeal courtyard to the exit.

Roux did not answer his phone or respond to a text message for clarification.

After court adjourned on Tuesday afternoon, pool microphones for the broadcast picked up Roux and Nel chatting after proceedings, which had been broadcast live.

Roux and Nel can be heard talking but what they are saying is not clear, but then Roux can clearly be heard saying: "...maar dat ek gaan verloor is feite." [But that I am going to lose is a fact.]

Nel said the microphones should have been switched off.

Brian Webber, Pistorius’s attorney, also could not comment immediately.

"I can’t comment until I have seen the whole recording. I am driving now," he said.

According to an SCA practice note on media coverage, there is an "absolute bar" on audio recordings of legal representatives. Those who failed to comply could be held in contempt of court.

The SCA reserved judgment on Tuesday afternoon after hearing arguments from both sides in the State’s application to appeal Pistorius’s conviction of culpable homicide. 

The State wants his conviction to be replaced with that of murder.

On October 21 last year Pistorius was sentenced to five years in prison for shooting Reeva Steenkamp dead on Valentine's Day in 2013.

He fired four shots through the locked door of the toilet in his Pretoria home, apparently thinking an intruder was hiding behind it.

The double-amputee track star was sentenced to a further three years, suspended for five years, for firing a shot at Tasha’s restaurant in Johannesburg in January 2013.

Should the SCA court uphold the appeal, it is unlikely that there will be a retrial.