home News Canvassing legal considerations in sentencing Oscar Pistorius for murder

Canvassing legal considerations in sentencing Oscar Pistorius for murder

By BO Staff Writer

Oscar Pistorius was initially convicted by Judge Thokozile Masipa in the Pretoria High Court, of culpable homicide for killing his girlfriend Reeva Steenkamp on February 14, 2013. He was sentenced to 5 years imprisonment.

The State subsequently appealed to the Supreme Court of Appeal (SCA) against the culpable homicide finding for which Pistorius had served a one year sentence of correctional supervision. The SCA overturned the culpable homicide conviction and convicted Pistorius of murder. The case was consequently remitted to Judge Masipa for sentencing on a conviction of murder.

Pistorius then sought leave to appeal his conviction of murder to the Constitutional Court on the basis that the SCA denied him the right to a fair trial. His leave to appeal was denied by the Constitutional Court. Judge Masipa thereafter sentenced Pistorius to a 6 year term of imprisonment for murder.

The State today (26 August 2016) sought leave to appeal to the SCA from Judge Masipa. It was argued that the sentence imposed by Judge Masipa is not proportionate to the crime of murder committed by Pistorius and in this regard the SCA will arrive at a different conclusion. The application was dismissed with costs. It is now up to the National Prosecuting Authority to consider taking the case directly to the SCA.

Section 51 of the Criminal Law Amendment Act prescribes minimum sentences for “certain serious offences” including murder. To this end for murder dolus eventualis – the accused being aware of the outcome of a particular action – a “(f)irst-time offense is subject to at least fifteen years’ imprisonment, second conviction results in at least twenty years’ imprisonment, and third or subsequent conviction entails at least twenty-five years’ imprisonment”. Pistorius is a first time offender, hence the mandatory minimum sentence of15 years imprisonment is applicable in his case.

When the case came before Judge Masipa on a conviction of murder, she was compelled to work within the confines of the minimum sentence of 15 years imprisonment prescribed by law. To this end the discretion that Judge Masipa had (when considering sentence on the conviction of murder) to reduce the period of imprisonment from the mandatory period in the event that she finds compelling and substantial evidence is not an unfettered one. It must be pointed out that in terms of the culpable homicide conviction, Pistorius was effectively sentenced to 5 years correctional supervision and that the subsequent sentence of 6 years imprisonment for murder is one of direct imprisonment. In this context, the fact that the one year that Pistorius had served for his conviction of culpable homicide was not direct imprisonment but correctional supervision means that this should not automatically translate into a reduction by one year of the mandatory period of 15 years imprisonment for murder.

In meting out an “appropriate” sentence Judge Masipa took into account the various objectives and factors of punishment as well as the factors in mitigation and aggravation of sentencing the accused.

Judge Masipa, in deviating from the minimum sentence of 15 years prescribed by law, effectively found that the mitigating factors far outweighed the aggravating factors and that a sentence that served more as a rehabilitative than a deterrent measure is an appropriate one in the circumstances. To this end she intimated that Pistorius is a suitable candidate for rehabilitation. She accordingly sentenced him to a period of imprisonment that deviated from the mandatory minimum sentence by 9 years. This is an extremely wide deviation from the said prescribed period of imprisonment.

The sentence imposed on Pistorius (a white man) on the conviction of murder is as mild as the sentence previously imposed by Judge Masipa on the conviction of culpable homicide. Moreover, it smacks of racial disparity in sentencing. One case in point is that of the recent case of hip-hop artist Molemo “Jub Jub” Maarohanye and Themba Tshabalala (black men) who were convicted of culpable homicide in that they had negligently (and not intentionally as was the case with Pistorius) caused death. They were both sentenced to10 years imprisonment for a lesser offence than murder. The prevailing neo colonial and neo liberal dispensation in terms of which white supremacy operates automatically via its agents (black judges included) in service of white interests, is most instructive here.

The sentence imposed on Pistorius for murder is disturbingly lenient and inappropriate and as such not in kilter with real and substantial justice. A Court of Appeal is by law guided by the principle that sentencing is “pre-eminently a matter for the discretion of the trial court” and to this end can only vary the sentence of a trial court if the said discretion hasn’t been “judicially and properly exercised”. Quite clearly the sentence in the Pistorius case invokes a deep sense of shock. In the circumstances, a variation of the sentence to that of 12 to 13 years direct imprisonment would certainly be most appropriate.


1. Criminal Law Amendment Act 105 OF 1997. See link: http://www.justice.gov.za/legislation/acts/1997-105.pdf

2. S v. Rabie 1975 (4) SA 855, 857; S v. Sadler [2000] 2 All SA 121 (A), see link: http://www.saflii.org/za/cases/ ZASCA /2000/13.pdf.

3. The guide to sentencing in South Africa, SS Terblanche, Durban : Butterworths ; Charlottesville, Va. : LEXIS Law Pub., ©1999

4. Jub Jub’s murder conviction overturned. See link: http://mg.co.za/article/2014-10-08-jub-jubs-murder-conviction-overturned/

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