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But he has definitely bought himself some time.
While Pistorius can base his appeal only on the judgment by the Supreme Court of Appeal (SCA) that turned his culpable homicide conviction into murder, he cannot base it on the earlier High Court judgment, Marius du Toit, a defence lawyer and former prosecutor, told News24.
“I would love to see their application [to the Constitutional Court]. Some people are saying they will focus on his right to a fair trial, but they are bound by the judgment handed down by [SCA justice Eric] Leach,” said Du Toit.
“You have to look for constitutional grounds in that judgment. Not [High Court Judge Thokozile] Masipa’s.”
He said the Constitutional Court will look at the application and then decide whether to hear it, or dismiss it.
“I somehow think the Constitutional Court is not going to willy nilly grant leave to appeal. They could say ‘Sorry guys, we are not interested’.”
The possibility for the Constitutional Court deciding to hear the matter is there, and if it does so, Pistorius’s sentencing proceedings might be postponed from April 18.
“You can’t put the cart before the horse,” Du Toit said.
He said it was difficult to “guesstimate” when the Constitutional Court would make a decision.
“It sometimes takes months, or weeks. But not years.”
Du Toit said Pistorius’s legal team will have 15 days to apply for leave to appeal. However it was not “the end of world” if the application was slightly delayed.
“He will have to file an affidavit saying why it was delayed, and he could say it was because of finances, or they were getting the record ready.”
He said “a lot of paper” is used in a Constitutional Court application.
“Whatever you file, you have to do it 22-fold. That’s for the 11 justices and their clerks.”
The High Court in Pretoria granted Pistorius bail of R10 000 on Tuesday.
Deputy Judge President Aubrey Ledwaba said Pistorius must be electronically monitored. He would also only be allowed to travel within a radius of 20km around his uncle’s Waterkloof home, where he was previously under correctional supervision for his original sentence of culpable homicide.
He will be allowed to leave the home between 07:00 and midday, and will need written permission from the investigating officer to leave the house outside of those hours.
Pistorius’s lawyer Barry Roux earlier told Ledwaba that an application for leave to appeal would be brought to the Constitutional Court, and if that was unsuccessful he would return to the high court for sentencing.
Prosecutor Gerrie Nel said: “We acknowledge he has the right to bring that application… We’re not convinced that the accused has made out a good case and that his application to the Constitutional Court will be successful.”
Pistorius’s culpable homicide conviction was overturned for a stronger conviction of murder by the SCA last week in Bloemfontein.
He faces a minimum of 15 years for the murder, unless he provides substantial and compelling reasons to the high court to deviate from that.
The SCA’s ruling came almost three years after Pistorius shot and killed Reeva Steenkamp, later stating he mistook her for an intruder. He fired four shots into the door of a toilet cubicle in his Pretoria home on Valentine’s Day in 2013.
He served one-sixth of his five-year sentence in prison and was released in October to serve the remainder under correctional supervision.
