Unclear what Barry Roux was referring to in comments made after appeal hearing where prosecutors called for murder conviction

Oscar Pistorius’s defence lawyer has been inadvertently recorded telling his opposite number “I am going to lose” after prosecutors at an appeal hearing called for the athlete to be convicted of murder for shooting his girlfriend, Reeva Steenkamp.

Oscar Pistorius appeal: judge says Reeva Steenkamp 'had nowhere to hide' – live Read more

The context of the quotes or whether Barry Roux was referring to a point of law, the appeal as a whole or an unrelated matter was not immediately clear. The South African news site News24 said the exchange happened after the court adjourned when microphones in place for broadcasters recorded Roux telling the state prosecutor, Gerrie Nel, in Afrikaans: “But that I am going to lose is a fact.”

Nel told the site he could not comment on the context in which the exchange took place. Roux has yet to speak.

Pistorius was convicted of culpable homicide last year and freed on parole to house arrest last month. If the appeal is successful, Pistorius will probably return to prison.

Arguments at the Bloemfontein appeal court centred on whether Pistorius had the intention necessary for a murder conviction and, if the court does find against the athlete, whether it can impose a new conviction or must order a retrial.

Facebook Twitter Pinterest Oscar Pistorius at a bail hearing in 2013. Prosecutors have called for him to be convicted of murder for shooting his girlfriend Reeva Steenkamp. Photograph: Themba Hadebe/AP

Neither prosecution nor defence are keen on a lengthy and expensive retrial. Nel was highly critical of the original trial judge, Thokozile Masipa. “The court ignored the most important circumstantial evidence,” he said, contending that this failure led to Masipa misconstruing Pistorius’s actions on the night in question.

Nel also argued that Masipa was inconsistent in relying on Pistorius’s evidence when she had already dismissed him as an unreliable witness.

Roux tried to argue that these issues were questions of fact, rather than law, and therefore not grounds for an appeal.

The judges interrupted him frequently: they were more interested in his interpretation of the concept of dolus eventualis – in this case the argument over whether Pistorius foresaw the possibility that he might kill someone when he shot four bullets into a tiny bathroom.

“Did he believe he was entitled to shoot in those circumstances?” asked Justice Eric Leach repeatedly, referring to the tiny dimensions of the bathroom in which Steenkamp died. “There was no place to hide.”

Roux told the court the question could not be separated from Pistorius’s mental state and his physical condition as a double leg amputee. “Bang bang bang bang. [Pistorius] fired shots in quick succession. He should have thought better. He should not have fired four shots. He should not have fired shots at all. But that does not explain what his mind is saying … Something must have happened in that man’s mind that forced him to fire and explains that … It’s unfair to see this through the prism of someone standing there with two legs,” he said in his closing statement.

The supreme court of appeal reserved judgment until a later date which was not specified, although it is expected to come before the court recesses on 1 December.

Legal analysts said the outcome was unpredictable. “A lot of people were focussing on how gruelling the interrogation on Roux was, and drawing an inference from that. But having one or two vocal judges doesn’t give you an indication into what the other three are thinking,” said Kelly Phelps, law professor at the University of Cape Town.

“Simply because they argue vociferously with one side, doesn’t mean they necessarily agree or disagree with that side. We can’t know where this stands right now.”

Pistorius did not attend the appeal; June Steenkamp, Reeva’s mother, was in the public gallery.

Hagen Engler, a close friend of Reeva’s, told the Guardian: “I believe in the SA justice system, overloaded and challenged as it is. So I have faith that judge Masipa applied her mind and reached the decision she felt was best. But however long Oscar serves doesn’t at all compensate for the loss of Reeva. Nothing really could.”

