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article imagePistorius lawyers battle to avoid murder charges

By Stephanie Findlay (AFP)     Nov 2, 2015 in Crime

Oscar Pistorius' lawyers on Tuesday fought to keep him from returning to jail as state prosecutors argued for a murder conviction in a combative appeal hearing a fortnight after he was released.

The Paralympic sprinter was found guilty last year of culpable homicide -- a charge equivalent to manslaughter -- after shooting dead his girlfriend Reeva Steenkamp on Valentine's Day in 2013.

During sharp exchanges between his lawyer and the five judges at the Supreme Court of Appeal in Bloemfontein, the killing was again re-lived in front of a packed courthouse that included Steenkamp's mother June.

At the crux of the appeal was how trial judge Thokozile Masipa interpreted the principle of dolus eventualis -- awareness of the likely outcome of an action -- under which she acquitted Pistorius of murder.

Reeva Steenkamp's mother  June Steekamp (C)  is pictured before an appeal by state prosecutors ...
Reeva Steenkamp's mother, June Steekamp (C), is pictured before an appeal by state prosecutors against South African Paralympian Oscar Pistorius' conviction last year, in Bloemfontein on November 3, 2015
Siphiwe Sibeko, POOL/AFP

"(Judge Thokozile Masipa's) analysis of dolus eventualis seems to me to be wrong," Judge Eric Leach said.

"When he fired the bullets, did he know there was somebody behind the door?

"We're talking about intent."

Pistorius' lawyer Barry Roux fought back, arguing that the original trial verdict could not be challenged on its factual findings.

"(The judge) was saying... 'my factual finding is that when he fired the shots thinking it was an intruder, he genuinely believed the deceased was in the bedroom'.

State prosecutor Gerry Nel speaks at the Johannesburg High Court  in March 2015
State prosecutor Gerry Nel speaks at the Johannesburg High Court, in March 2015
Kim Ludbrook, Pool/AFP/File

"He genuinely believed he was in danger and that's why he fired."

State prosecutor Gerrie Nel argued that Pistorius should be convicted of murder as he intended to kill whoever was behind the toilet door through which he fired four bullets.

"Firing through the door at torso level into a small cubicle… the foresight must be that someone would die," Nel said.

The court reserved judgement on the case, and is expected to take some weeks before announcing its decision.

- 'Stop abusing women' -

The National Prosecution Authority appeared confident of overturning the culpable homicide verdict.

"We firmly believe that the prosecution team presented very persuasive and compelling arguments, and therefore we have reasonable prospects of a successful appeal," NPA spokesman Luvuyo Mfaku told AFP.

Pistorius, 28, was released on October 19 -- just one year into his five-year jail term -- to spend the remainder of his sentence under house arrest at his uncle's mansion in Pretoria.

If he was found guilty of murder, he would face a minimum of 15 years in prison.

Members of the women's league of the South African ruling party  the African National Congress ...
Members of the women's league of the South African ruling party, the African National Congress, sing and dance in protest against Oscar Pistorius outside the appeals court in Bloemfontein on November 3, 2015
Gianluigi Guercia, AFP

Pistorius, who has not been seen in public since his release, did not attend the hearing.

"I'm here to support Gerrie Nel and the team," Reeva's mother June Steenkamp told AFP.

"We are saying he must stay in jail," said Khosi Mojapi, a 33-year-old member of the African National Congress Women's League, outside the court building.

"We say stop abusing women."

A lone Pistorius supporter held a sign reading "Hands off Oscar Pistorius, Give Oscar Pistorius a break."

- Difficult to call

Legal experts said it was difficult to predict the outcome of the appeal given the unexpected -- and sometimes unprecedented -- legal twists and turns that have characterised the high-profile case.

The appeal judges could alter the original trial verdict and send the case back to the high court for a new sentence.

Pistorius may also make his own appeal to South Africa's Constitutional Court -- the country's highest court.

But defence lawyers say Pistorius could not afford further legal battles, having already paid huge legal bills.

Pistorius shot Steenkamp, a model and law graduate, at the peak of his fame, following his historic performance in 2012 when he became the first double-amputee to race at Olympic level.

In the shooting's aftermath, he lost his glittering sports career, lucrative contracts and status as a global role model for the disabled.

His release on house arrest after serving one-sixth of his sentence was in line with normal treatment of South African convicts, but was criticised by women's rights groups and many others in the country.

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