WHEN Oscar Pistorius says his nightly ‘thank you’ prayers there’s one that might have escaped his attention: He should be devoutly and eternally grateful for the tardiness of the Department of Justice and its Minister.
If it wasn’t for their slackness, Pistorius could be in a far more precarious position.
Remember when the high court found Pistorius not guilty of murder? Remember the outcry from people who believed him guilty? One reason for their outrage was that the law as it now stands allows an appeal against a judge’s finding on the law only and not on fact. The problem with this law in the Pistorius case is that the prosecution might well be in a position to appeal both legal and factual findings by the court. Yet if there is an appeal the prosecution may raise only legal issues.
In the furious flurry that followed his acquittal of murder the justice department is quoted as having ‘set in motion a process’ that will widen the scope of the prosecuting authorities to appeal court findings.
A justice department spokesperson says a Bill ‘has been prepared’ and is ‘in the process of being submitted’ to the justice minister that would give the prosecution the right to appeal against an acquittal based on questions of fact as well as law.
And this is where Pistorius should be down on his knees, giving thanks. Because a full 14 years ago, in the year 2000, the South African Law Reform Commission completed a detailed report on exactly this issue, recommended changes that would allow appeals on fact as well as law, and prepared and submitted a draft Bill to the justice minister.
If the authorities had acted promptly the law could long have been changed and the state would be free to appeal on both legal and factual grounds.
In 1997 the Attorney General of the Western Cape, now the provincial Director of Public Prosecutions, asked the minister of justice to change this very law so the state could appeal on questions of fact.
In response the minister asked for investigation of this specific issue because of the general perception that the state was hampered by the law as it stands: people could go free who should not be acquitted, merely because of the artificial curb on the grounds of an appeal.
Ironically, since the SA law reform commission handed its report and draft Bill to the minister all those years ago, the report has been used round the world as the basis for other countries to make precisely the changes that the department of justice is only now starting to ‘set in motion’.
Why have the changes not been attended to all this time – especially since there have been several appeal decisions referring to the problems created by the existing law and the anomalies and injustices that resulted?
As far back as 1993 Namibia changed its criminal procedure laws to allow the Attorney General to appeal on questions of fact. And the 2000 SA law reform paper made it clear that there is no international human rights document that denies the state the right to appeal in criminal cases and appeals against acquittals regardless of whether on law or on fact have become a worldwide trend in countries with respected legal systems.
When a Bill was introduced in Mauritius allowing the prosecution to appeal on matters of law as well as on fact, the South African report was extensively quoted including words that could have the Pistorius case in mind, though in fact it was written at least 14 years before: ‘Judicial officers are fallible with regard to the findings of fact and of law. A court once removed from the heat of a trial is often better able to judge the rationality of factual conclusions, the correct finding of the law and the fairness of the proceedings. Through appeal … consistency and uniformity in the application of the law may be achieved. It furthers equality before the law.’
At the time the right to appeal an acquittal whether on legal or factual grounds was introduced in Mauritius, a key reason for the change was said to be ‘fairness’ both to an accused and to victims of crime: ‘The families of a murdered person suffer too. They too have rights.’
Perhaps there’s one more prayer that Pistorius might consider, namely that if the law is finally changed in South Africa we don’t follow the example of Mauritius, where the new law on appeals applies even where the accused was convicted or acquitted before the law was changed.