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Masipa rules against Pistorius's legal team

Judge Thokozile Masipa ruled that the defence team's application should be struck off the roll.

FILE: Judge Thokozile Masipa. Picture: Pool.

PRETORIA - Judge Thokozile Masipa has ruled that the application by Oscar Pistorius's lawyers seeking leave to appeal the state's application should be struck off the roll.

Judge Masipa said she feels procedurally it would be wrong to grant or refuse the application.

"Accordingly, the order that I give in this matter is to strike off the application."

Defence advocate Barry Roux argued that the state had not been granted leave to appeal the culpable homicide conviction and instead had only been allowed to make a substantive application against it.

"Nowhere does the court say, therefore I grant you leave to go to Bloemfontein on appeal. It is not an appeal it's a substantive application in terms of 319."

But prosecutor Gerrie Nel said that the High Court in Pretoria had no authority to hear the matter.

"It's clear and I say it with the outmost respect. But this court has no inherent jurisdiction at all, even the Constitution Court has no inherent jurisdiction. So therefore my lady as the creature of statute, this court has no right to hear this application."

Roux also argued that the points raised by the state are questions of law.

"The state is wrong. It is not an application for leave to appeal the legal point, the reservation. It's a substantive application. The sentence was an application for leave to appeal; of course you can't appeal that."

Roux particularly argued that he cannot argue in the Supreme Court of Appeal unless Masipa granted leave to appeal.

The judge said she agreed with the state and that she was not satisfied that the High Court was the correct court to hear the application.

"I'm not satisfied that this is the correct court to hear this application. For one thing, there is nothing new in the submissions by counsel.

"In my view to entertain this application would be tantamount to reviewing my own decision."

National Prosecuting Authority (NPA) spokesperson Velekhaya Mgobhozi says the defence was trying its luck.

"The counsels had the opportunity to raise the issues. So we feel like the defence is getting the second bite of the cherry. And we know, procedurally, they supposed to raise these issues if they feel like raising them in the High Court or Supreme Court of Appeal. "

The appeal will now be heard in the Supreme Court of Appeal, but the date has not yet been set.

WATCH: The NPA responds to Judge Masipa's ruling.