When I first heard Advocate Botha’s arguments in his bid to win leave to appeal I was very underwhelmed. I didn’t get a sense that Botha was volunteering anything new on behalf of his notorious client. There were no game-changers. There was nothing that stopped one in one’s tracks and went, wow, I never thought of that, this could change everything.

After further analysis Botha’s arguments do have a little merit. He starts off challenging the state and the court a quo on the “premeditation” findings.  In the first three minutes of the hearing Botha emphasised precisely this aspect.

Let’s review the transcript.

BOTHA: Even if the court confirms the guilty finding, on counts 1 to 3, there’s a reasonable prospect the court of appeal may find that the state failed to prove beyond reasonable doubt that the applicant planned the murders, or that the murders were premeditated. Of course in that premise [clears throat], in that event, the charges – if a court of appeal agrees with us on that aspect – the mandatory life sentences fall away. And the court will then consider [correcting himself] will then be free to consider afresh, a sentence without the uh-uh…provisions of section 51 B…the Criminal Law Amendment Act being applicable. 

In theory this is a reasonable argument. It worked in the Oscar Pistorius case. Premeditation is often very difficult to prove, especially in circumstantial evidence cases.

In the Oscar Pistorius case, had Oscar shot Reeva with his prosthetic limbs on, the court would have had a strong case for premeditated murder. Why? How? Because in Oscar’s own version he was asleep with his legs off. If he had the presence of mind to put on his prosthetic limbs and arm himself [an activity that took time, perhaps half a minute] and rather than flee the scene, approach the danger and shoot, well that creates a mosaic of premeditated action doesn’t it? When Oscar was putting his limbs on, had he formed an intention in his mind?

As it turned out, Oscar wasn’t on this prosthetic limbs when he fired the shots, which was a huge early miscalculation and embarrassment to the state and the state’s case.

Personally I believe Oscar was guilty of premeditated murder, because he heard Reeva screaming [I believe], because he approached the screaming cubicle, because he fired four shots into it, and because each shot’s trajectory differed markedly from the other, which means he was tracking his target who was unsighted,  using sound. Using her screams to see her.

3 of the 4 shots were on target, despite the fact that Reeva was moving behind the door, and the last shot was a head shot. The sound she made when she received this wound, was falling on the wooden magazine rack. This sound would have told the shooter exactly where Reeva was.

I covered a lot of this in my book Justice Eventualis, cross-referencing expert testimony with ballistics angles and measurements. I even reconstructed a to-scale scene in my garage with a real door.

Ultimately though, despite a fairly good palette of evidence, the state failed to prove premeditated murder, and ultimately failed to prove that Oscar murdered Reeva.

In the end Oscar was only found guilty [Dolus Eventualis] of indirect intent, in the sense that he murdered an unarmed intruder, not Reeva. Indirect intent, such as throwing a hand grenade into a crowd may be an indirect way of killing specific people, but it’s intent nevertheless. You might not know who you’re killing, but you clearly intend to kill nonetheless. I cover this intention in detail in Slaughter, my book on mass murderers.

Morning light reflects off the Mandalay Bay hotel and the broken windows where shooter Stephen Paddock conducted his shooting spree from the 32nd floor in Las Vegas, Nevada, U.S., October 3, 2017. REUTERS/Mike Blake

It’s difficult to see more premeditation and a clearer motive in mass murderers, and yet the media and even the FBI often are unable to say why these mass murders happen. They can’t say why the Vegas shooter Stephen Paddock killed a record number of Americans. Ditto Newtown’s Adam Lanza, Virginia Tech’s Seung Hui Cho or the JThe Dark Knight cinema shooting in Aurora by James Holmes.

Because of the state’s failure to prove premeditation and direct intent, technically and legally, Oscar is only guilty of murdering someone, not of murdering Reeva. Wherever Reeva is right now, I’m sure she’s not happy with that. If you were murdered, would you be?

In any event, not all cases are born equal, and the Van Breda case – in terms of intent –  is a lot simpler than the Pistorius case. Obviously where there are four victims, three of whom are bludgeoned to death, and the fourth also bludgeoned but miraculously survived, you have clear premeditation. Just in the act of successively murdering one, then another, then another, and then attempting to murder a fourth, you have an assailant who has a very clear intention. In an axe murder death isn’t instantaneous. It requires several blows to the head and neck, and in this case, all four received blows to the head and neck. Henri is the only family member who didn’t.

One sees this intent reinforced by the fact that Henri also didn’t come to the aid of any of his family members after they were attacked.

Even though he knew his brother and sister were alive, struggling to stay alive for at least two hours, he didn’t come to the aid of either of his siblings, or even comfort them. In fact, there’s some reason to believe Henri laughed while he massacred his family. In his own version he described the axe murderer laughing while hacking his father to death. This isn’t premeditation, but it suggests if he wanted his family dead, after killing two family members, he was prepared to still let nature take its course.

In my books on Van Breda I’ve gone into some detail why the second axe murder – of his father – is clearly premeditated. Galloway skillfully avoids getting her hands dirty in these arguments by simply stating that if the family members were all upstairs, and the axe was downstairs, it required Henri [who claimed he was also upstairs], to go downstairs in the middle of the night when everyone was asleep, collect the axe and then head upstairs and carry out the slaughter he had in mind.

I agree that this implies premeditation, just as the fact that the crime occurred when it did, at about 03:00, about three hours after a neighbour heard the sounds of raised male voices arguing.

I also feel this ought to be sufficient, except we see a mirror image of this scenario in the Oscar case. It’s not a 100% reflection, but it is similar. In Oscar’s story he got out of bed, went to the balcony door to close the curtains, heard a sound, went to retrieve his gun from under the bed [right where Reeva was supposed to be sleeping, but blanketed in impenetrable darkness].

Oscar claimed he either spoke to Reeva in a low tone, or whispered to her. In this schema he spoke to her too softly for her to hear, that’s why she didn’t answer, but in the reality of the story, Reeva wasn’t there to begin with, she was already in the toilet, and had locked the door.

The point is, like Van Breda, Oscar also had to retrieve his weapon from somewhere else, and then approach his target. Instead of a stairway, he went along a hallway, was presented with an empty bathroom, and someone inside a locked room. Oscar’s story that he’d communicated with Reeva throughout waves the flag that he’d warned her he was armed, and this was in a sense a warning shot. In Oscar’ version, Reeva’s failure to acknowledge herself cost her her life. Oscar was justified in being afraid and trigger happy, and Reeva died because she failed to raise her voice and identify herself. That’s his explanation.

I don’t wish to conflate the two cases more than that, other than to point out Henri’s girlfriend invoked Oscar’s testimony and how Oscar was blamed when he showed emotion, and blamed when he didn’t. Danielle said in her exclusive interview with 60 Minutes that Henri was trying very hard not to fall into the same trap. But what she seems to have missed is that Oscar was found guilty of murder. It’s not as if he was innocent and his emotions were wrongly found to be inappropriate by the media. He was guilty and thus his inappropriate emotions made sense. The same applies to Henri, doesn’t it?

At face value then, Botha’s argument that the premeditation narrative is a little shaky holds some water. But for anyone familiar with this case, and applying the logic that premeditation is implicit in multiple serial killings, then Botha’s arguments are very shaky indeed. The Van Breda axe murders are almost at the scale to meet the classification for mass murder. If Marli had died, Henri would officially be regarded as a mass murderer. Even worse, a mass murderer exclusively of his own family members.

In terms of Judge Desai, he was combative and interrupting throughout Botha’s arguments. He was also scornful straight off the bat when Botha said this was merely a “circumstantial evidence” case.

The Judge is correct that most criminal cases are circumstantial evidence cases. In criminal cases, direct evidence tends to be lacking, often because the perpetrators conduct their crimes in secret, and tend to remove the direct evidence implicating them.

Examples of direct evidence are eye witnesses. A fingerprint isn’t direct evidence. In a circumstantial evidence case, a court must draw inferences based on the mosaic of information provided.

My favorite moment during the 28-minute hearing was when Galloway accused Botha of nit-picking the circumstantial evidence, causing him to miss the wood for the trees. That’s exactly what he’s done.

If I had to bet, I’d say the Judge won’t grant an appeal, because this would be little more than giving further opportunity for further fruitless nit-picking. If that happens, Botha can apply to the Supreme Court of Appeal [SCA] directly, just as Gerrie Nel did when Judge Masipa denied him leave to appeal her “shockingly light” sentence.

If the SCA refuse to grant an appeal, and they tend to be very strict in the cases they do grant leave to, Botha can apply to the Constitutional Court. Oscar did this when the SCA ruled against him. The Constitutional Court rarely rule on criminal matters, and it’s virtually inconceivable that they’d want to hear this case.

We have seen that Judge Desai has been somewhat sympathetic towards Henri. That said, he has been exceedingly patient hearing Botha’s case, even when it’s been hours and hours of much ado about nothing. Prior to sentencing, Desai repeatedly offered Botha the chance to provide evidence in mitigation of sentence. Botha and his client spurned this offer, a decision both may rue for the foreseeable future.

If Desai refuses leave, it’s also possible that in future another application may be lodged, fielding a new set of evidence. The Drugs Narrative, in my opinion, may yet be out there, but I wouldn’t count on those chickens before they hatch.