The state is appealing the trial court's dismissal of the murder charge against him. The defense asked the trial court to throw out the state's appeal, but the judge refused today, saying it's not for her to decide any longer, it's in the hands of the appeals court.
In my view to entertain this application will be tantamount to reviewing my own decision.
"And I also think that procedurally it would be wrong to grant or refuse this application. "Accordingly, the order that I grant in this matter, is to strike off the application."
Appeals can only be on matters of law, not fact. Oscar's lawyer's said the state was really trying to appeal the judge's factual ruling. The judge, having previously granted the state the right to appeal her decision on the application of the legal concept of dolus evenutalis, but not the sentence, said today she can't review her own ruling, a higher court will have to do that.
The defense motion was made to preserve the record on appeal and be able to show to the higher court it had exhausted all remedies in the lower court. It wants to argue in the appeals court that it should not decide the matter because its an appeal of the facts, disguised as an appeal of the law, and the trial court did not grant the state's request to appeal its factual rulings, nor could it. If it did not raise this issue before the trial court, it might be blocked from arguing it in the appeals court.
Barry Roux, for Pistorius, had argued that the culpable homicide verdict was reached on matters of fact, which cannot be the basis for an appeal. Masipa had previously given the state leave to appeal after she agreed that a different court might reach a different verdict on a point of law – namely the interpretation of the principle of dolus eventualis.
Roux argued today that it was his legal obligation to raise this argument to ensure he would be able to make these points at the supreme court at a later date.
The judge refused to allow the state to appeal the sentence several months ago. She said only her legal interpretation of "dolus eventualis" is subject to appeal.
Today's ruling does not bring the state any closer to winning an appeal. It just doesn't end Oscar's appeal before it reaches the higher court. Today's ruling just ensures he can make the same argument in the higher court.
Also this week, the prison authorities apologized for someone having leaked a video of Oscar during exercise time in the prison yard. Some papers reported it meant he was receiving special treatment, and were especially offended that he laughed at one point. Every inmate gets an hour a day of recreational time. It's not special treatment. There's no requirement inmates be miserable every minute of the day. They are allowed to laugh. The public thirst for retribution reaches the absurd at times, and this is a good example.
