Pistorius verdict based on 'findings of fact'

Barry Roux said the athlete didn't foresee that he would kill and that is a factual finding.

FILE: Oscar Pistorius arrives at the High Court in Pretoria ahead of his sentencing on 17 October 2014. Picture: Christa Eybers/EWN.

PRETORIA - Oscar Pistorius's defence team has argued that Judge Thokozile Masipa's application of the law in the conviction of the athlete was correct and that the state's application to appeal her ruling should be dismissed.

The state has launched its application to have the athlete's culpable homicide conviction and sentence appealed in the Supreme Court of Appeal in Bloemfontein.

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

The state failed to convince Masipa that he intended to kill when he fired shots through a locked toilet door at his luxury Pretoria home and he was found guilty of culpable homicide.

Defence advocate Barry Roux says the court's findings on the double amputee's state of mind were findings of fact which the state may not appeal.

"He didn't foresee that he would kill and that is a factual finding, whether that's right or wrong. I say it's right, but it doesn't matter."

But prosecutor Gerrie Nel said the court asked the incorrect question of whether Pistorius subjectively foresaw killing Steenkamp as opposed to whether he foresaw killing any person.

Nel argued this then is a matter of law, which permits the state to ask the Supreme Court of Appeal to review the conviction.

Earlier, the prosecutor claimed that the judge had incorrectly applied the legal principle of _ dolus eventualis._

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

Judgment will be handed down tomorrow.

Video: Pistorius appeal day 1.