Judge Thokozile Masipa made errors in law: Gerrie Nel

NOVEMBER 3, 2015

Questions were on Tuesday raised in the Supreme Court of Appeal over how Pretoria High Court Judge Thokozile Masipa dealt with the evidence in Oscar Pistorius’s trial.

Gerrie Nel, for the State, argued she had not looked at the circumstantial evidence holistically and had instead paid “lip service” in her judgment.

“The court never went back to discuss the circumstantial evidence of what happened in the bedroom,” he said.

“The court failed to take into account what happened just before [the shooting] and that is the most important aspect of this trial.”

Five SCA judges were hearing the State’s appeal of his culpable homicide conviction.

Judge Steven Majiedt raised a concern.

“What I find more troubling is how she dealt with [police ballistics expert Chris] Mangena’s evidence. You don’t understand how she gets to where she does in that she basically accepts what the accused says: if he wanted to kill, he would have shot higher. That is completely contradictory to his evidence.”

‘On facts, the conviction is murder’

Nel said the court accepted what Pistorius had testified about his thinking, actions and motives at the time.

This was not in line with the trial court’s finding of his credibility, he said.

He believed the court had allowed multiple defences.

“The one [defence] he elected to use, the court rejected that and gave him another one.”

“The court should have rejected his evidence because he was a poor witness. All that remains is the objective facts. On the objective facts, the accused cannot escape the conviction of murder.”

The prosecutor acknowledged at the start that he was not happy with the trial court’s factual findings.

However, he aimed to be “very cautious” not to attack the factual findings but to deal with errors in law.

He also made out a case for the validity of the appeal in light of the court making a conviction on a "competent verdict".