“The question is 1) did the accused subjectively foresee that it could be the deceased behind the toilet door and 2) notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet? The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that from the onset, the accused believed that at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet.” ...
“He did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.” ...
“The accused cannot be guilty of murder dolus eventualis … on the basis that, from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted the possibility, or brought that possibility into the bargain.” ...
“It follows that the accused’s erroneous belief that his life was in danger excludes dolus.”
- Judge Masipa
If one asks the WRONG legal question(s), one gets the WRONG legal “fact”(s).
Any verdict based on WRONG “fact”(s) must be WRONG.
Masipa grossly erred in making any distinction between the “intruder” and Reeva. The law makes no such distinction in the identity of the deceased. Murder doesn’t hinge on ID. That the “intruder” did not exist is 100% irrelevant - OP’s entire story and every action flowed from his claimed belief in this “intruder”. More crucially, had there been an actual intruder, he’d be just as DEAD as Reeva. It’s clear OP didn’t value the “intruder’s” life (he blatantly ignored the gun laws and his training) and neither did Masipa. By drawing a distinction based on victim ID, she created her own law to fit her verdict.
As for subjective foresight, it’s virtually impossible to crawl inside a killer’s head ... but his words and actions (of lack thereof) ratted him out. Logical inference drawn from all evidence is the key tool of the courtroom (counsel, judge, juries). If it wasn’t, few murder cases would ever be solved or judged (absent rare direct evidence). Oscar’s own actions condemn him.
If one loads a 9mm with Black Talons, deliberately walks into unseen danger (ignoring escape route a few feet away), aims at a closed door and pulls the trigger four times - KNOWING a human stands behind that door (posing zero threat) - one is explicitly assumed to accept any and all consequences.
If this was not a legal certainty, all any murderer would need to plead is that he never foresaw any lethal possibilities whatsoever (Oopsie, an accident! I thought it was A, not B. I just wanted them out of my house! My bad!) Dead person B just becomes unfortunate collateral damage - like Reeva ... her life valued at 10 months prison. (How many people with murder in their hearts will gladly pay that price?) The Oscar Defense is easy: just plead ignorance from beginning to end and wail in “remorse” - a license to kill with near total impunity.
This is why Masipa’s verdict sets such a dangerous precedent.
Masipa erred again and again by not strictly applying the reasonable man test - she consistently applied the Oscar Pistorius test - what would Oscar do based on terror/GAD/disability/vulnerability/remorse/Reeva’s “location” at any given second?
If the SCA judges read nothing else but this passage from Masipa’s judgement, they will no doubt swiftly dismantle her twisted logic as judicial garbage and bring down the hammer on OP.