Pistorius could yet be convicted of murder

While the National Prosecuting Authority (NPA) might not be calling it a victory outright, there must have been sighs of relief in the NPA corridors on Wednesday. Fresh from the shock of the Dewani case discharge, the state has now been given leave to appeal against Oscar Pistorius's acquittal on the charge of murder. To the Supreme Court of Appeal (SCA) in Bloemfontein we go - though likely not with any great speed.

Oscar Pistorius's troubles are by no means over. If the athlete was banking on a ten-month stint behind bars, followed by serving out the rest of his five-year sentence as house arrest, Wednesday's events may have caused him to adjust his expectations. If the SCA finds that Judge Thokozile Masipa erred in failing to convict Pistorius of murder in the shooting of Reeva Steenkamp, he faces a new minimum sentence of 15 years.

We saw the power of the SCA in action earlier this month, when convicted fraudster J Arthur Brown had his R150,000 fine and a suspended sentence converted into a 15-year jail term.

The NPA will be hoping for a similar outcome from the Pistorius appeal, though spokesperson Nathi Mncube was careful to play down any sense of triumph after Judge Masipa's ruling on Wednesday.

"It's not about winning," he told journalists. "It's always about justice, and I think justice has been served."

To laypeople, there's something a bit strange about the appeal process: the fact that the same judge who initially ruled on a legal matter is then asked for permission to let another court consider whether she got it wrong.

Opinion before Tuesday's hearing began seemed to be that it would be extremely unlikely for Judge Masipa not to grant permission for the matter to proceed to the SCA, given the controversy around her ruling in October and the amount of ambiguity surrounding the legal concept of dolus eventualis.

But Judge Masipa has repeatedly revealed herself to be a tough nut. On Wednesday she explicitly said that she rejected the argument put forward by state prosecutor Gerrie Nel that the "huge public interest" in the Pistorius matter constituted special circumstances to grant leave to appeal.

"In my view, the degree of public interest in a matter is not relevant," the judge said. "In terms of our Constitution, everyone is equal before the law."

Pistorius's defence also earned a smackdown for claiming that the fact that Reeva Steenkamp's family had expressed acceptance of Pistorius's sentence should be considered as evidence that the sentence was appropriate. The Steenkamps' views on the matter, Judge Masipa said, were irrelevant.

Describing the issue at hand as "not an easy question", Judge Masipa nonetheless concluded that there were points of law - rather than fact - on which the SCA could consider Pistorius's conviction.

"I cannot conclude that the prospect of the application's success at the SCA is remote," Judge Masipa said.

The NPA didn't have it all their way on Wednesday. Judge Masipa denied permission to appeal the sentence she handed down to the athlete in October, saying that she was not satisfied that there was any "material misdirection" in this regard, and denying that the sentence was "shockingly low" - as Gerrie Nel repeatedly asserted.

Judge Masipa also denied permission to appeal the acquittal of the athlete on the charge of illegally possessing ammunition. This is not necessarily the end of the road for the state: Mncube indicated that the NPA would be considering whether to petition the SCA directly on these matters, as is their right.

The issue of appealing Pistorius's current sentence of five years would effectively be moot, however, if the SCA overturns the culpable homicide conviction and replaces it with a murder conviction, as the state is asking.

Mncube explained what would happen if the SCA were to uphold the state's appeal.

"Automatically, once a person has been convicted of murder, the court would then have to consider an appropriate sentence," he said. "Our argument is that an appropriate sentence for murder can definitely not be the sentence that has been imposed here. So it would have to be a minimum sentence, in terms of the Minimum Sentence Act, which is 15 years' imprisonment."

One issue is that by the time the SCA rules on the matter, Pistorius could have already been released from jail - in terms of the regulation which permits him to spend only one-sixth of his current sentence behind bars. That means that if the SCA convicts him of murder, he might have to return to jail after a period at home.

Mncube said that the NPA could not speculate on the timeline that would be involved. But the SCA doesn't sit all year round, and the amount of paperwork and preparation that will be required render it unlikely that the Pistorius appeal will be heard for the best part of 2015.

The NPA has also been at pains to stress that the impetus to see the Pistorius matter considered by the SCA stemmed not just from a desire to see the athlete go down for murder, but also a need to have the relevant legal matters clarified by the higher court.

The proceedings of the SCA will be most unlike the original Pistorius trial. Pistorius himself does not have to be present. There will be no witnesses: only written and oral arguments presented by both sides. The bench - which will consist of three to five judges - will also have to read the full record of what happened in the North Gauteng High Court.

The SCA's proceedings are open to the public, though it's highly unlikely that the matter will attract as much interest as the original trial. It's also unclear whether any broadcasters will apply for permission to televise the hearings - or whether it would be worth their while financially.

One thing is certain: we'll be dragging the ongoing drama of Oscar Pistorius with us deep into 2015, and maybe even beyond.

Mncube acknowledged that there were humanitarian reasons for wanting to see the process concluded swiftly.

"I think everybody understands that somebody's life is going to be hanging now," Mncube told eNCA. "I think it will be in Mr Pistorius's interests to know the outcome of the Supreme Court of Appeal as soon as possible".

But he was clear that the SCA should not be expected to count the public interest in the matter as justification for hastening its outcome.

"I don't think that the court will budge and try and expedite the matter on the basis of public pressure and so on," he said.

This column first appeared on Daily Maverick.