JOHANNESBURG (AFP) - A judge on Friday dismissed an attempt by Oscar Pistorius' lawyers to stop an appeal, in a move that could see the fallen Paralympian hero spend significantly more time behind bars for killing his model girlfriend. "I strike off the application," said Judge Thokozile Masipa at the South Gauteng High Court in Johannesburg.
Pistorius' defence argued in court that the state's appeal of a judge's decision finding the champion sprinter not guilty of murder was unsubstantiated.
But Judge Masipa, who presided over Pistorius’s trial, criticised the athlete’s lawyers and rejected their application. She said Pistorius’ lawyers should argue their point in the appeals court itself, adding there was “nothing new” in their application.
“Before I gave my finding in December, both counsel had an opportunity to argue whether the points raised at the time were points of fact or points of law,” Judge Masipa told the court. “Procedurally it would be wrong to grant or refuse this application.”
Judge Masipa’s decision paves the way for the prosecution’s appeal to go ahead.
The 28-year-old Paralympian was found guilty of culpable homicide last year - a charge akin to manslaughter - and sentenced to five years in prison for shooting his girlfriend Reeva Steenkamp on Valentine's Day 2013.
State prosecutors were in December granted permission to appeal the trial verdict, arguing that Judge Thokozile Masipa misinterpreted the law when she ruled Pistorius did not intentionally kill his girlfriend when he shot four times at a locked toilet door.
But Pistorius' legal team say his conviction was based on facts presented during the trial, not on an interpretation of law, and therefore cannot be appealed.
It's a move legal experts described as unorthodox.
"The whole thing is highly unusual," said Ms Kelly Phelps, a senior law lecturer at the University of Cape Town. "This is uncharted territory."
Despite the unusual tactic, Ms Phelps said that the defence may have a strong argument in favour of getting the Pistorius appeal tossed out, paving the way for the athlete to be released from jail this year.
"I think they have a fifty-fifty chance of winning this," she said. "The defence's papers were very well drafted, very well reasoned, and backed up with authority. In that sense, I think they probably feel that they do have quite strong grounds for this."
During the trial, Pistorius testified that he shot Steenkamp believing she was an intruder, while the state argued he deliberately killed the 29-year-old law graduate, model and reality television star after an argument.
If an appeals court found him guilty of murder, the athlete - known as the "Blade Runner" for his prosthetic legs he wears on the track - could face at least 15 years in jail.