Nel: Masipa asked the wrong questions

Nel says Masipa incorrectly applied the principle of dolus eventualis and asked the wrong questions.

FILE: State prosecutor, Gerrie Nel, sits in court during hearing as the state pleads its case in trying to challenge Oscar Pistorius's culpable homicide conviction on 3 November 2015. Picture: Pool.

BLOEMFONTEIN - Prosecutor Gerrie Nel has argued that the question Judge Thokozile Masipa should have asked when considering the Oscar Pistorius case was not whether he knew Reeva Steenkamp was behind the door, but whether a person was behind the door when he opened fire.

This was heard in the Supreme Court of Appeal (SCA) in Bloemfontein where the State has asked that the athlete be convicted of murder.

Pistorius was convicted of culpable homicide for killing his girlfriend two years ago.

Nel says Masipa incorrectly applied the principle of dolus eventualis to the facts in that she asked the wrong questions.

Judge Eric Leach sought clarity from Nel on the exact question they must consider.

"All we've got to call upon to decide is whether there was any misdirection in that the finding should have been there was a person in this tiny cubicle when he fired four shots and that that constituted murder."

Defence advocate Barry Roux argued that Masipa correctly applied the principle and that his client genuinely feared for his life when he opened fire.

WATCH: Behind the door: Reeva flushed the toilet

At the same time, the SCA has interrogated Roux about whether the High Court correctly interpreted dolus eventualis in the trial.

Leach has indicated that Masipa's analysis of dolus eventualis is incorrect.

"The whole definition of dolus eventualis is defined solely with reference to Reeva; whether he knew she was in the toilet at the time he fired the shots and is that not a misdirection of law?"

But Roux has argued that there are two facts that Masipa considered when making this finding.

"The one factual finding that she made is that he genuinely believed that he was in danger and was acting in danger. The second factual finding is that he genuinely believed that the deceased was, at the time of the firing of the shots, in the bedroom and that can't be ignored."

Roux says Pistorius' fear, state of mind, anxiety and vulnerability must also be considered, because the State's version that he wanted to kill Steenkamp has already been tested and rejected.

But Leach had a different opinion.

"In the light of that finding her analysis of dolus eventualis seems to me it's wrong. Because the issue was not whether he knew Reeva was in the cubicle, the issue was he knew a person was in the cubicle."


Nel has argued that allowing Pistorius to have multiple defences and the court further choosing a defence for him was a clear error in law.

He has argued that Pistorius presented several conflicting defences among them that he opened fired because he believed his life was in danger saying he fired in reaction to a noise.

But as Judge Nonkosi Mhlantla noted, these are mutually exclusive.

Judgment has been reserved.

To learn more about Reeva's story, _ click here._

To read similar cases, click here.