Leach said Masipa found OP to be a shocking and unreliable witness, but then went on to accept his claim that he honestly believed his life was in danger, without evidence to support it. Leach said, He was armed with a firearm and went to confront the noise". Roux asks, Do we think he is lying?
Roux insisted there was a factual finding by the trial court that OP genuinely believed his life was in danger. Show me, says Judge Leach. Roux frantically looked through his notes to find the reference. Leach said it does not support the defence argument that Masipa made a factual finding that OP genuinely believed there was an intruder. Leach said that OP didnt know if it was a 12-year-old child or a man with a submachine gun. Roux replied that the fact that OP was wrong is something else. Leach asked if OP believed that he was entitled to shoot in those circumstances. Roux insisted that he thought his life was in danger. He was vulnerable and on his stumps.
Roux said Masipa determined that Pistorius was wrong this is why she found him guilty of culpable homicide, but Masipa did accept that he genuinely thought he was in danger and that he believed Reeva was in the bedroom. He argued that is a factual finding, and given that, Why would he just want to murder someone in the toilet, knowing shes in the bedroom?. He argued that in that context, Masipas finding on dolus eventualis was correct. Leach pushed Roux to concede that Masipas findings on the identity issue were wrong. Roux would not concede. He said, Once you accept that factual finding, you cannot find OP guilty of murder. Leach asked, Do you accept this was an incorrect finding? Roux said, I can't make that concession. Leach replied, We're here to argue, not concede.
Leach asked Roux another question about Seekoei which covers the States right to appeal to the supreme court. Roux said its not part of the defence case and that there was general agreement earlier that it is no longer a useful law. However, he raised the question of double jeopardy is this appeal giving the state a second chance after it failed to get the verdict it wanted?
Majiedt asked Roux why the defence submits that if the appeal court finds the law was misapplied this court cannot substitute its own verdict. Why
in the interest of justice can this court not give the judgment that ought to have been given? Roux said the defence argument is that there would need to be a retrial. Majiedt said a retrial is not an ideal option, given all that has gone before. The judge said he doesnt understand Rouxs argument that this court could not reach its own verdict.
Majiedt said the court has heard all the evidence. If it finds for the state, why would it be in anyones interest including the accused to have a retrial? "Why shouldnt this court substitute its own verdict?" Judge Mhlantla weighed in with more legal precedent on when and why the appeal court can substitute its own verdict. Leach too. Roux was being pressed very hard.
Roux wanted to talk about the two Oscars one the famous athlete, the other an anxious, vulnerable person, and referred to a report by a clinical psychologist, following a 30-day mental health evaluation. Roux said OPs state of mind is key. He should not have fired four shots. He should not have fired shots at all. But case law tells us we cannot isolate the actions from who the person is. Baartman said, We cant simply give everyone with an anxiety disorder the right to shoot. Roux agrees and said OP is being punished. OP was scared, really scared. Why would he have fired the shots? There is no reason unless he is genuinely afraid for his life.
Roux has concluded his argument.
Leach asked Nel if Masipas finding that OP believed there was an intruder binds the current court. Nel said that the finding was wrongly made.
Leach asked was there a genuine threat, and what was the alternative action. Nel said that the trial court did not ask or answer these questions.
