One Tragic Night (37 page)

The only distinction between culpable homicide and murder is what the accused was thinking at the time of the crime. The legal definition of culpable homicide is the ‘unlawful and negligent killing of another human being'. So, murder requires ‘intention' whereas culpable homicide requires ‘negligence'.

Maseko explains: ‘The test that is applied by our courts to determine whether negligence existed on the part of the accused is to measure their conduct against the standard of care that society expects of fellow human beings to preserve the life of another or, conversely, not to act in a manner that may result in the endangering of another human being's life and possibly causing their death albeit unintentionally.'

To prove culpable homicide, the state's case would have to pass all three legs of the test:

If all three questions are answered in the positive, then Oscar's conduct could be regarded as negligent and he could be convicted of culpable homicide.

‘If the fictional reasonable person would have foreseen the death and would have taken steps to guard against it, and the accused failed to take such steps, then the accused is held to be negligent. Like intention, it is not sufficient that the accused meets the definition of negligence; the accused must also have
knowledge of unlawfulness. For a putative defence to remove negligence, the accused's mistaken belief that he was acting in self-defence must not only be genuine (to exclude intention) but also a reasonable mistake in the circumstances (to exclude negligence),' says Phelps.

For the court to decide whether or not Oscar should be convicted of ‘culpable homicide', it has to apply what is known as the ‘reasonable man' or ‘reasonable person' test. If the action the accused took or the mistake he made was one that reasonable people would make in the same circumstances, and they didn't know something at the time that they know now, then their actions would be held to the same standard as this ‘reasonable man'.

Negligence is determined by referring to the standard of the reasonable person in the circumstances of the accused, explains Professor Grant. ‘If an accused acted in a manner contrary to what the reasonable person, in the same circumstances, would have done, the accused was negligent. At its core, this is a test that compares the conduct of the accused with what is to be expected of a reasonable person in the same circumstances as the accused. Any “gap” between what the accused did and what the reasonable person, in the circumstances of the accused, would have done represents negligence on the part of the accused.

‘Immediately one may recognise that the identity of the “reasonable person” is all-important. The reasonable person is a hypothetical person, constructed by a court to judge whether an accused acted with sufficient care. The more like the accused the reasonable person is “constructed” to be, the less any “gap” between the conduct of the accused and that of the reasonable person will be. The accused will argue that all of the characteristics and attributes of the accused must be attributed to the reasonable person, including, of course, an impediment or disability that the accused has.'

But this reasonable person test is a vexed and convoluted question in law. How do you define the reasonable person to allow the test to be applied across the board? And could Oscar be held to the same standard as this ‘reasonable person', with his disability and life experience?

‘In applying this test to the facts before the court, the court needs to determine who this reasonable person is, what qualities they possess,' says Phelps. ‘Both the defence and the prosecution will need to assist the judge in closing arguments in determining what qualities this reasonable person should possess
in this case. In order to do this, they will rely on settled case law as well as areas of the law that are less settled and open to interpretation. The reasonable person as envisaged in South African law is not a bastion of perfection or a quivering wreck sitting on the couch wrapped in cotton wool lest anything bad should happen as a result of his or her actions.'

The notional reasonable person was clearly described in the well-known delict case
Herschel v Mrupe
: ‘[the reasonable person is] not … a timorous faint-heart always in trepidation lest he or others suffer some injury; on the contrary, he ventures out in the world, engages in affairs and takes reasonable chances'. In other words, the test is not calibrated to eliminate all risk-taking, only unreasonable risk-taking.

The reasonable person test was actually featured in a South African movie called
A Reasonable Man
, based on the classic case testing this notion. In the 1930s, Mbombela, a young man of around 20, lived in a rural village in the former South African homeland of the Transkei. He wasn't educated, and believed in the existence of evil spirits called ‘tokoloshes'. It was widely believed then, and still is today, that a tokoloshe could take the form of a little old man with small feet. Mbombela also believed that to look the evil spirit in the face would be fatal.

One day a group of children who had been playing outside a village hut they believed was empty came running in terror to Mbombela to report that they had seen a figure that had two small feet, like those of a human, inside the hut. Mbombela concluded that this must be a tokoloshe and went off to fetch his hatchet.

In the dim light of the hut's interior, he lashed out at what he believed to be the tokoloshe, striking it several times with the hatchet. But moments later when he investigated ‘the victim', he discovered it was in fact his nine-year-old nephew.

Mbombela was convicted of murder and sentenced to death. The court took a purely objective test to the construction of the reasonable man, refusing to take Mbombela's belief in the tokoloshe into account. The Appeal Court, however, dismissed the charge of murder, but convicted him of culpable homicide and sentenced him to 12 months' hard labour.

‘In other words, the court found the accused lacked intention for a murder charge but possessed negligence for the culpable homicide charge. The court refused to take into account in the determination of reasonableness the “race or the idiosyncrasies, or the superstitions, or the intelligence of the person of the accused”, despite the recognition by the court that belief in the fatal powers of the tokoloshe was widespread amongst the community of which the accused was a
part. This case has been heavily criticised over the years for leading to unfairness in the context of a multicultural society like South Africa,' says Phelps.

While it might seem fair that the law should take each individual's attributes including religious and superstitious and traditional beliefs as well as disabilities and vulnerabilities – into account, if that were to happen it would effectively result in the collapse of any standard. There would be no point to the reasonable person test.

That is why in Oscar's case, technically, the test cannot be ‘lowered' to take into account his disability, as Professor Grant explains. ‘For this reason, the law has, to date, refused to take account of any characteristic, attribute, impediment or disability of an accused. To use the conventional language, the law is not prepared to “lower” the standard by taking account of personal attributes of an accused. Our courts are only prepared to “lower” the standard by taking account of the immediate external circumstances in which he, the accused, acted – such as, for instance, driving a car where the brakes have failed, or being in the dark at night. By doing this, the law is “lowering” the standard to take account of the context in which the accused acted. On the contrary, though, our courts do “raise” the standard to take account of a special skill that a person ought to have if he or she engages in an activity that requires that skill. Thus, any person who performs a surgical procedure on another person will be judged against a standard of the reasonable surgeon. Our courts are likely to regard using a firearm as requiring special skill. Therefore, on a charge of culpable homicide, and on the law as it stands, Oscar Pistorius can expect the court to compare his conduct to that of a reasonable gun-owner, in the circumstances that prevailed at the time, without taking any account of any impediment, disorder, or disability on his part.'

Phelps considers whether Oscar's disability should be taken into account by the judge: ‘Arguably, it must be taken into account – that is, the reasonable double amputee – as it would be absurd to expect a man with no legs to have the physical ability of a man with legs. So if the disability is taken to be “the circumstances of the accused” then where does the court draw the line? Surely it goes without saying that a severe physical disability has a significant impact on a person's personality and emotional and/or psychological make-up. Such factors are internal characteristics and routinely not considered by the court. But then surely the court is treating a disabled person as if they didn't have that disability, which would render the law artificial and potentially unfair. This is the sort of debate that the legal teams will need to engage in with the judge.'

Antonio de Oliveira – a businessman and white, illiterate, immigrant from Madeira – lived in the Johannesburg suburb of Rewlatch with his partner, Mrs Cordeiro. An employee, Vusi Nyandeni, also lived on his property. Robberies and housebreakings in Rewlatch were common and, as a result, De Oliveira armed himself.

One Sunday afternoon in 1988, the couple were asleep in their bedroom when Cordeiro was awoken by dogs barking. She saw black men she didn't recognise outside and heard glass breaking. She screamed at Antonio, who calmed her down, took his gun and fired six shots at the ‘intruders'.

In his statement to the police, De Oliveira explained what had happened: ‘I told my wife not to worry. I would sort it out. I then took my pistol from the table next to my bed and I fired six or seven shots and these blacks ran away. I saw afterward that two black males were lying on the ground. I was not thinking about anything at the time as I was half asleep when I shot these shots.'

The men he had shot at were not intruders. They were his long-time employee Vusi Nyandeni, his brother Paul and two friends. The shots killed Nyandeni's brother, wounded Nyandeni himself and just missed one of his friends.

Nyandeni testified against his employer in court, stating that when they had arrived at the property, the door to the servants' quarters was locked and so he rang the front door bell. He claimed that De Oliveira and Cordeiro appeared at the bedroom window demanding to know what was going on. According to Nyandeni, De Oliveira threatened him that if he ever brought strangers to the house he would shoot them. De Oliveira went off, fetched his gun and began shooting.

In his trial, De Oliveira used a defence called ‘putative private defence' – although he was not entitled to fire at the victims, he mistakenly believed he was.

Private defence is the technical name for self-defence – and it is wider in definition than self-defence. Private defence includes one's right to resort to reasonable force in defence of any legally protected interest, such as your body, your life or those of another person.

‘So society accepts that while killing another human being is wrong, undesirable and therefore unlawful, it also accepts that there are limited circumstances under which it is acceptable to kill another. One of those circumstances is when another person wants or attempts to take your life, then you are allowed to choose your life over his or hers; that is self-defence, and if you raise the defence successfully then your actions are not unlawful in those circumstances.
So, self-defence negates unlawfulness because it makes your actions lawful,' describes Maseko.

For this defence to work, a person needs to actually be under attack. De Oliveira, like Oscar Pistorius, was not in reality under attack so the argument of self-defence would not be open to them. The question then is, how does the law deal with this ‘honest' mistake? Should you go to jail because you believed that you were entitled to act in self-defence but later learn that you were actually grossly mistaken?

‘Putative' means ‘mistaken'. So putative private defence means a supposed or mistaken defence, where the accused relies on his or her mistake that he or she was entitled to act in private defence.

‘Colloquially, this means “mistaken belief in self-defence”,' says Phelps. ‘In other words, he mistakenly believed that he was acting in self-defence. Self-defence is a defence that eliminates the unlawfulness of a killing. A putative defence eliminates the
mens rea
(intention or negligence) of the killing, in that he lacked knowledge of the unlawfulness of his conduct.

‘The putative defence works as follows: in order to successfully defend a charge of murder, the mistaken belief must be a genuine one. In other words, the court must determine what he was actually thinking, not what he should have been thinking. Did he genuinely, though wrongly, believe he was acting in self-defence? If the answer is “yes”, he is acquitted on murder for lacking intention to kill. Next, to successfully defend the culpable homicide charge, the genuine mistaken belief must also be reasonable in the circumstances. If the mistake is considered reasonable in the circumstances, he will be acquitted for culpable homicide too,' says Phelps.

Professor Grant illustrates how this works in reality: ‘So, if X runs at you with a knife with the intention of stabbing you to death, if you have no alternative you may resort to lethal force in response. Private defence is judged objectively, by reference to reality. If you resort to lethal force against someone who is not, in objective reality, attacking you, you may not rely on this defence of private defence. However, if you are not actually under attack, but you mistakenly think you are, and you do resort to lethal force and kill the perceived attacker, you may rely upon the defence of “putative private defence” if you also believe that you had no alternatives and that you are entitled to use lethal force.'