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Paralympian Oscar Pistorius (left) will today know his fate when judge Thokozile Masipa (middle) delivers her verdict in the 2013 Valentine’s Day shooting death of his model girlfriend Reeva Steenkamp (right)

Dr Tapiwa Mashakada Correspondent

The court is likely to impose a long jail sentence as a warning to other would-be offenders. The court will find his disability and the fact that he is a paraplegic who made South Africa proud in sport, as extenuating circumstances.

Today, the trial judge in Pistorius’ murder case is expected to hand down her much awaited judgment. Many legal scholars are pontificating on the judgment because the trial was long and very complex. In this opinion piece, I argue that Pistorius will be found guilty of culpable homicide, not murder.

My reasoning is that one has to appreciate that for the charge of murder to be sustained, the state has to prove beyond reasonable doubt that the unlawful taking of someone’s life was intentional.

Moreover, the court must first satisfy itself that there was conduct which can be a positive (act) or an omission on the part of Pistorius.
Moreover, does the act comply with all the definitional elements of murder?

And finally on a point of law, the court must ascertain the culpability of Pistorius. In other words, was there a simultaneous existence of intention and criminal capacity on the part of Pistorius.

In other words, the court has to understand what was going on in the mind of Pistorius at the time he committed the offence.
Throughout the trial, Pistorius maintained his innocence. The summation of his defence was that he acted erroneously under the mistaken belief that he was shooting at an intruder. In other words, he did not have the intention to kill Reeva (error in abberatio).

The court will find that Pistorius acted negligently by not checking where Reeva was before pumping bullets into the toilet door. Intention or dolus can either be direct (dolus directus), indirect (dolus indirectus) or consequential (dolus eventualis).

Dolus directus means that Pistorius shot with a direct intention to kill Reeva. Dolus indirectus means that Pistorius knew very well that by shooting through the door, he was likely to kill Reeva indirectly.

Dolus eventualis means that Pistorius knew that the eventual effect of his actions would result in the death of Reeva.
Whichever way one looks at the facts, clearly there was dolus which is, however, mitigated by his state of mind at the time the offence was committed.

The judge is likely to take into consideration the expert report of clinical psychologists who examined Pistorius for a month which concluded that he suffered from some anxiety disorder.

In other words, the court will find that Pistorius was not insane at the time he committed the offence. However, the court will find that based on the report of the psychiatrist, Pistorius suffered from non-pathological criminal incapacity not automatism. Non- pathological criminal incapacity means that Pistorius suffered a temporary loss of self-control.

He temporarily lost his cognitive and connative faculties. Therefore, he did not act intentionally in that he lacked criminal capacity.
The court will therefore find Pistorius guilty of negligently killing Reeva, which amounts to culpable homicide, not murder. Pistorius’ action was the causal and legal cause of Reeva’s death.

Pistorius will escape the verdict of murder with actual intent because of the defence of non-pathological criminal incapacity.
What about the sentence? In criminal law, punishment must be deterrent or preventive or retributive. The whole idea of punishment is to balance three things: namely (a), the crime, (b) the criminal and (c) the interests of the community.

This is the so-called triad of Zinn (1969).
The court is likely to impose a long jail sentence as a warning to other would-be offenders. The court will find his disability and the fact that he is a paraplegic who made South Africa proud in sport, as extenuating circumstances.

Even if Pistorius is found guilty of murder with actual intent, he is not going to face capital punishment. The new democratic constitution of South Africa outlaws capital punishment as inhuman and degrading.

Therefore, it is unconstitutional. The court may cite the famous case of S v Makwanyane to advance the constitutional position that every human being has the right to life.

This right cannot be taken away. It is non-derogable.
I hope my opinion piece will provoke many legal scholars and practitioners alike so they can start to research and write scholarly legal opinions on jurisprudence and the law not only for the benefit of the legal fraternity, but for society as a whole. Let the debate begin.

Dr Tapiwa Mashakada is acting secretary-general of MDC-T, and MP Hatfield