I'll go on the record and say that there is no doubt that this case will be heard by the ConCourt. Even if the ConCourt denies this application, Oscar has already said he will go to the Chief Justice of this court, so look forward to some more legal arguments.
It would be interesting to hear your reason as to why you think there is ‘no doubt' the ConCourt will entertain this appeal as in contrast I can’t see this happening.
Currently there appears to be two views from the Pistorius legal team for approaching the ConCourt. Firstly ‘the SCA should not have heard the appeal’ and secondly they are arguing the SCA wrongly overturned Masipa factual findings that Pistorius acted out of fear.
The first argument is in my opinion perverse. There may have been some merit in this approach if the trial judge had refused leave to appeal and the SCA had been petitioned directly but this was not the case. Masipa granted leave to appeal in respect of questions of law that had arisen in her court which in her opinion needed consideration by the SCA. It is then incumbent on the SCA to consider these questions of law reserved; to simply refuse such a request would fly in the face of the purpose of having an appellate court.
Secondly to argue that the SCA overturned Masipa’s finding of fact that Pistorius was ‘fearful’ is incorrect in my opinion.
During the appeal Justice Baartman noted that a person can’t simply use ‘anxiety’ as an excuse for firing four times through a closed door, but she did not dispute the trial court finding that Pistorius was fearful or anxious.
During the reading of the judgement Justice Leach was at pains to point out several times the limitations of the SCA in this case in respect of not interfering with Masipa’s findings of facts. Therefore it would be perverse for experienced SCA justices to then do exactly the opposite.
I would imagine the Pistorius defence team are hanging their hat on the single phrase in para 54 of the judgement where Justice Leach says ‘he fired without having a rationale or genuine fear his life was in danger’ which the defence may well consider overturns Masipa’s finding that Pistorius was indeed fearful. If this is the case they really are clutching at straws because previous to this statement Justice Leach accepts the accused may well have been frightened when he armed himself but then goes on to say there was no genuine reason for this ‘fear’ nor was it the product of rational thought. In essence Justice Leach is merely questioning the reason for this ‘fear’ but most importantly he does not question its existence because should he have done so then he would be overturning Masipa’s finding that Pistorius was ‘fearful.’ This he was careful not to do.
So, bearing in mind that before granting leave to appeal the ConCourt has to be of the opinion there is a reasonable prospect of the appeal succeeding then I cannot imagine for one moment an appeal being entertained on such flimsy grounds
