Experienced criminal defender advocate Piet Pistorius said Judge Thokozile Masipa had to, instead, make a ruling in terms of the law.
The state, in its heads of argument, contended there were special circumstances for the court to grant leave to appeal, namely the huge public interest and the “far-reaching precedent it would set in our legal system”.
The defence argued no far- reaching precedent relevant to existing legal principles had been introduced and the judge had correctly applied the law to the facts.
Judge Masipa in October sentenced Pistorius to five years’ imprisonment in terms of Section 276(1)(i) of the Criminal Procedure Act on a charge of culpable homicide.
She found he had negligently caused the death of his girlfriend Reeva Steenkamp when he, in February 2013, fired four shots into a locked toilet door, believing there was an intruder in his house.
Reeva died in his arms.
The sentence means Pistorius will have to serve a sixth, or 10 months, of his prison term before he can be considered for the conversion of his sentence to correctional supervision, or house arrest.
Legal experts differed on the outcome of the appeal bid.
Advocate Pistorius said the state had a reasonable prospect of success on appeal, but former Acting Judge Johann Engelbrecht SC said he believed there was no legal point to be raised on the merits and the state was trying to convert a factual issue into a legal one.
Engelbrecht believed the state’s chances of getting leave to appeal were zero if the case law was correctly applied.
“The bottom line is did the court apply the facts correctly? I also don’t think they will succeed on the sentence, because that is the prerogative of the trial judge.
“We all agree Oscar deserves a period in jail, but having regard to all the circumstances of the case a lengthy period of incarceration is not required.
“The court found his fall from grace to the prison floor was already a severe punishment.
“He was a world idol in sport. Now he’s been reduced to nothing. I disagree with the state that the court attached too much weight
to his personal circumstances,” he said.
The appeal hearing is set to be heard today.