If the Supreme Court of Appeal (SCA) replaces Oscar Pistorius‘s culpable homicide conviction with murder on Thursday, it could order that he be taken back to prison pending a possible high court hearing on his sentencing, an expert has said.
Marius du Toit, a defence lawyer and former prosecutor, told News24 that if the SCA rules that Pistorius is guilty of murder, it could say the matter must be referred back to the high court to deal with the sentencing.
“It would be referred back to Judge [Thokozile] Masipa if she is available, and if not, another judge would familiarise themselves with the case.”
Du Toit said if it was referred back to the high court, “realistically speaking” Pistorius was already serving his sentence for the culpable homicide conviction.
“He is not out on bail, presently he is under correctional supervision.”
Because of this, he could remain under correctional supervision unless the SCA gives a directive.
“It could give a directive that he be incarcerated pending the outcome of the sentencing proceedings. For murder, you don’t get correctional supervision.”
Du Toit said that with a possible murder sentence, the minimum is a 15-year sentence, unless Pistorius’s lawyers could show the court specific reasons why that should be dropped.
“The defence would argue for a lower sentence and the State would argue for a higher sentence.”
He said that if it comes to a point where Masipa has to sentence Pistorius for murder, it’s possible that his lawyers could eventually approach the Constitutional Court.
“I don’t think we have seen the end of this case,” Du Toit said.
The SCA was expected to hand down judgment at 09:45 on Thursday.
Pistorius shot dead his girlfriend Reeva Steenkamp in 2013, later stating he mistook her for an intruder.
He fired four shots into the bathroom door of his Pretoria home on Valentine’s Day.
The High Court in Pretoria found him guilty of culpable homicide and not murder.
Masipa ruled that Pistorius could not have foreseen that “either the deceased or anyone else for that matter” might have been killed when he fired shots at the door.
The State appealed his conviction, arguing that Pistorius was guilty of murder with indirect intent.
Pistorius did not attend the one-day SCA hearing in Bloemfontein in November as he was under correctional supervision at his uncle’s Pretoria home.