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17.9 The two forms of dolus and, with respect, the correct and accepted definition of dolus eventualis were dealt with at paras [26]—[27]. Although this will receive further elucidation, it is perhaps apposite at this point to question the Applicant’s contention that there exists a so-called, or purported, “second component’ for dolus eventualis, namely that of knowledge of unlawfulness. The Applicant eschews any possible support that this definition for dolus eventualis has received in case-law and even in recognized and respected legal writing.
http://www.scribd.com/doc/296591638/Oscar-Cc-Final-Papers-Aj-Monday-25-Jan-Respondent
As a trained firearms owner, he knew from his training that you cannot shoot in that situation.
Yes this is a critical point.
Knowledge of unlawfulness is not some extra, special ingredient for Dolus E. Rather it is wrapped up in the concept of PPD.
In other words, if one acts legitimately in PPD, then one did not know one was acting unlawfully - indeed one (mistakenly) believes one is acting with lawful justification.
So Justice Leach has in fact addressed this question in finding that PPD was not made out.
The obvious sanity check on all this is simply to ask did OP know he was acting unlawfully?
The answer is clearly yes.
As a trained firearms owner, he knew from his training that you cannot shoot in that situation.
BIB - why did he arm himself with a gun then if he had no intention of using it? It certainly wasn't to fire a warning shot, as we all know. And the fact is he did shoot when it was 'confirmed' someone was in the toilet, so I'm not sure what you're debating.Surely the court were supposed to look at things subjectively from OP's perspective and in the moment. I can't see how the SCA made any effort to do that at all. It makes no sense to argue that someone who correctly answers a question in a test would have time to think in a potentially dangerous situation. The court seems to have just dismissed all consideration that he was just acting on the spur of the moment even saying that he approached the bathroom knowing that someone was in there and when this was confirmed shot them dead, as though there was an intention to shoot before entering the bathroom. It's a very odd interpretation of OP's version of events.
Surely the court were supposed to look at things subjectively from OP's perspective and in the moment. I can't see how the SCA made any effort to do that at all. It makes no sense to argue that someone who correctly answers a question in a test would have time to think in a potentially dangerous situation. The court seems to have just dismissed all consideration that he was just acting on the spur of the moment even saying that he approached the bathroom knowing that someone was in there and when this was confirmed shot them dead, as though there was an intention to shoot before entering the bathroom. It's a very odd interpretation of OP's version of events.
Surely the court were supposed to look at things subjectively from OP's perspective and in the moment. I can't see how the SCA made any effort to do that at all. It makes no sense to argue that someone who correctly answers a question in a test would have time to think in a potentially dangerous situation. The court seems to have just dismissed all consideration that he was just acting on the spur of the moment even saying that he approached the bathroom knowing that someone was in there and when this was confirmed shot them dead, as though there was an intention to shoot before entering the bathroom. It's a very odd interpretation of OP's version of events.
Now which version of events would that be. That he didnt intend to shoot anyone but if the court found he did then he had that covered by saying he fired at intruders who were coming out to attack him in which case he realised he needed a noise to give him the necessary fright and so the infamous wood moving was born.
In fact it is well accepted that to this day no one really knows what is version was or the reason why he opened fire, as encapsulated by Justice Leach who said .
His evidence is so contradictory that one simply does not know his true explanation for firing his weapon.
To play devil's advocate for a moment, if, in fact, Oscar Pistorius had shot a burglar who had broken into his home one night while he lay sleeping, I would be fairly sympathetic to a self-defense claim EVEN IF his actions fell somewhat short of the threshold for a legally justifiable killing. IMO, once an intruder is in your home, it is reasonable to treat that person as a deadly threat and not wait to give him a sporting chance. So, in that respect, I agree with GR Turner.
However, for me, all of this is a moot point, because there isn't a scintilla of an iota of a reason for OP to have assumed that the person in the bathroom wasn't, you know, the other person actually sleeping in his home that night. This was Dolus Directus. I don't believe Oscar ever made a conscious decision to kill Reeva, and I believe he was horrified when it hit him that she was actually dead, but it seems clear to me that he shot through the door in a rage knowing full well that Reeva was behind it. Unfortunately, there was no mistake in fact to give grounds for appeal on DD, so the best the courts can do is reverse the call on Dolus Eventualis, even if I'm not sure they would apply precisely the same reasoning to a case in which a person had, in fact, killed a burglar.
BIB - why did he arm himself with a gun then if he had no intention of using it? It certainly wasn't to fire a warning shot, as we all know. And the fact is he did shoot when it was 'confirmed' someone was in the toilet, so I'm not sure what you're debating.
Op made it clear that he shot believing someone was coming out of the toilet, not just because he thought someone was there. There's a huge difference between grabbing a gun planning to kill an intruder up front, and taking the gun for self defence and then reacting strongly when thinking an attack was imminent. I can't see why this is such a difficult distinction to understand.
....totally agree.....the problem now is that the whole situation is a right mess, how can he now come out with the scenario that he shot knowing it was Reeva but without having the intention to kill ....
As the DPP says in its opposition to the appeal, at point 25 http://www.scribd.com/doc/296591638/Oscar-Cc-Final-Papers-Aj-Monday-25-Jan-Respondent
"the Applicant has himself to blame for the Court a quo and the SCA's negative comments about his credibility. The end result is that there exists no credible explanation by the Applicant for the killing of the deceased..."
He made nothing clear, as you state. Lest we forget his testimony it was laid out neatly by Greater Than in the previous thread at post #459 here http://www.websleuths.com/forums/sh...d-68-*Appeal-Verdict*&p=12240029#post12240029
The Constitutional Court sits to hear cases during 4 terms a year, the next one being 1st Feb to 31st March.