Nel: The wrong legal question was applied

The State says the conviction and sentence handed down are inappropriately lenient.

FILE: Oscar Pistorius leaves the High Court in Pretoria after the reading of judgment in his murder trial on 12 September 2014. Picture: Christa Eybers/EWN.

JOHANNESBURG - State prosecutor Gerrie Nel has argued the incorrect legal question was applied to the facts in the Oscar Pistorius case, which is why he was not convicted of murder.

Nel says that in this regard the court erred, and that if it had applied the dolus eventualis principle correctly, Pistorius would be guilty of murder.

In September Pistorius was sentenced to five years in prison for shooting and killing his girlfriend Reeva Steenkamp.

Judge Thokozile Masipa is today hearing arguments on the State's application for leave to appeal the athlete's conviction on a charge of culpable homicide and the five-year sentence handed down.

The State announced after the athlete was sentenced that it would launch the appeal of his conviction as well as his sentence, which it believes is inappropriately lenient.

Nel has reiterated today that the sentence does not fit the crime.

He says that the court asked the incorrect question of whether Pistorius subjectively foresaw killing Steenkamp and should have asked whether he foresaw killing any person.

He has further argued that the court did not take into account the circumstantial evidence that rendered the athlete's version impossible.

"There was a misdirection in that the court did not take account of the fact that in terms of section 2761i that the accused would only serve an incarceration period of 10 months and that is shockingly inappropriate for what the accused has done."

Nel began by explaining to Masipa how difficult it is for him to bring an application such as this, and insists, he's doing it with respect to the court.

Nel asserts that the blade runner didn't fire blindly.

"He knew where the person was. This was a person trained in the use of firearms."

Nel emphasised that an innocent woman was shot and killed in the most horrendous circumstances, caused by gross negligence of the respondent.

"If found that the court incorrectly applied the principle of dolus eventualis, the accused is guilty of murder."

He further argued that the state's appeal bid centres on a question of law. The defence team is later expected to argue that findings of fact cannot be appealed.

"If there was an appeal by the accused against his sentence, or his conviction, the legislature would never have intended the state to appeal an acquittal. My lady firstly, I don't think it's convincing, with the utmost respect, or applicable in this particular instance."

Nel explained it is not for him to convince the court the sentence is low, but rather to convince the court to reach a different decision.

Meanwhile, defence lawyer Barry Roux says they have shown in their heads of argument that the state is incorrect to argue that the High Court made mistakes in its judgment.

"In every single paragraph, where the State alleged there was a failure by the court, we in fact give the paragraph numbers to show that it is not correct what the state is saying."

For the latest on the Oscar Pistorius appeal, follow the live blog.