“And earthly power doth then show likest God’s

When mercy seasons justice.”

– William Shakespeare, The Merchant of Venice

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Before Valentine’s Day 2013 the only way Oscar Pistorius made headline news was by winning medals. He was a well-known South African sportsman, and when he started dating a beautiful model and law graduate, the couple often featured as an item in entertainment news. But few would have known more about Oscar and Reeva than could be gleaned from magazine covers and television appearances. On that fatal February morning, though, the world was suddenly lured into the lives of one of South Africa’s “it” couples, in a way that rivalled Hollywood reality TV.

A year later, alongside Pistorius and Reeva, Barry Roux, Gerrie Nel and Thokozile Masipa became household names across South Africa and beyond. For about five months, a most talked about, watched and criticised legal proceeding played out in front of the camera, bringing courtroom drama into our living rooms, without the theatrics of TV editing. It was not only South Africa watching. Epic moments were televised from pole to pole, gripping the world in the most riveting legal drama since Perry Mason, Boston Legal … or even the Good Wife.

The Blade Runner on Trial

Throughout the trial, Gerrie Nel took on a ruthless role, as he sought to leave no stone unturned until he could reveal the accused as an enraged boyfriend who lost it and deliberately ended the life of the woman he professed to love. At the other end of the ring, Mr Roux strived to paint his client as an indirect victim of the South Africa we all hear about on the news – his better judgment paralysed with the fear of faceless intruders.

At the centre of it all in her red judicial robe, sat the pensive and astute referee – Justice Masipa. There is no doubt that the second black woman to be appointed judge in the High Court of South Africa had her job cut out for her. There she was, hearing a case involving some of the most heinous allegations that can be made against anyone, let alone a rich and famous white man.

Which hat was this judge expected to wear as she sat through gruesome submissions that sought on one side to condemn, and on the other to absolve? That of a woman who as a social worker in her previous life no doubt encountered hundreds of cases of women being abused and perhaps even killed at the hands of their domestic partners? Or of a black South African who for the majority of her life was not even considered an equal member of society? Even the judge was being judged.

I and other fellow legal geeks followed the Pistorius trial with keen interest. Admittedly, I failed rather shamelessly at maintaining an objective ‘innocent until proven guilty’ perspective. I sat captivated through most of the five-day cross-examination of Pistorius; playing armchair judge, trying to get a sense of how the chips would fall when her Lady Judge Masipa delivered her verdict.

The Guilt Assessment

SAFRICA-TRIAL-PISTORIUSListening to some of the judge’s observations and questions during the trial as well as Counsel’s submissions, this case was clearly not as much of the fait accompli that the ANC Women’s League and seemingly most of the social media world would have had you believe.

One can understand why so many hastened to pronounce Pistorius guilty: A beautiful, intelligent, young woman was brutally shot behind a locked door in the middle of the night by an apparently often jealous, temperamental and possessive boyfriend. No eyewitnesses; his word against her eternal silence.

Naturally, it is hard for people to swallow that this was all a horrible mistake. Seeing the raw anguish and pain on the faces of June and Barry Steenkamp as they sat through the trial of the man who killed their beloved daughter, people could not reconcile with Oscar’s story. More than ever, the law and its champions wanted the justice system to operate without fear or favour, and calls were rife for justice to wield its most punishing hand.

But what justice could there possibly be for Reeva?

Well, Judge Masipa had to weigh up volumes of evidence and testimony to make an attempt. She had to look past the sobbing, the puking and other theatrics that Pistorius threw her way in pleading his innocence. She had to consider whether suggestions of arguments and Pistorius’s well-known temper were stepping stones in a plot to kill.

Under ruthless cross-examination from Nel, Pistorius failed to convince the judge and the world that he had no intention to kill the ‘intruder’ behind the toilet door, and that he was acting on reflex to defend himself. Not surprisingly, her Lady found Pistorius to be an unreliable witness. But tough as it may be to understand, that did not make him guilty of premeditated murder.

Ultimately, it was not from Pistorius’s testimony that the judge needed to find evidence of premeditated murder. It was up to the State to prove beyond reasonable doubt that at some stage, Pistorius intended to kill Reeva.

But Gerrie Nel and team could not clear the circumstantial hurdles in their evidence. It does not matter that there were text messages where Reeva expressed fear and sadness about their relationship (every couple fights, her Lady observed) or that Pistorius was known for being trigger-happy (even deriving bizarre elation from shooting watermelons isn’t a sign of guilt). Judge Masipa recognized in her judgment that it was not a matter of whether or not the Court believed Pistorius – the State had to offer her more dirt upon which to found a murder conviction. It simply did not.

The Verdict: Not Guilty Enough

130314 Afritorial Article - Sifa 3During the reading of the verdict, Pistorius sat listening, visibly stressed. One wonders if he relaxed a little when it became clear from the judge that she would not find him guilty of premeditated murder. After all, that meant that a mandatory life imprisonment sentence was off the table.

Perhaps not, since a verdict of dolus eventualis (where a perpetrator objectively foresees the possibility of their act causing death and persists regardless of the consequences) would have him in jail for up to 25 years. In other words, if the judge accepted that Pistorius could objectively foresee that there was a chance that Reeva was the person behind the door, and he shot anyway, he could have been found guilty.

What thousands of people from Pretoria to Copenhagen seem to be struggling with is Justice Masipa’s finding that the “accused cannot be found guilty of dolus eventualis either, on the basis that from his belief and conduct, it cannot be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door”. The focus in the judge’s mind was whether it could be said that it was foreseeable that Oscar actually considered that the noises behind the door could have been coming from Reeva, and having considered that possibility, he shot anyway – once, twice, thrice and a fourth time, knowing that in doing so, there was a chance he could kill his girlfriend.

It is important to remember and understand that Pistorius was charged with the murder of Reeva, not the murder of Faceless Random Human. Therefore, to have found him guilty of this lesser charge of murder, her Lady would have had to find that at some point from the moment Pistorius was ‘startled’ to when he first pulled the trigger, it was conceivable that it could have been Reeva in that toilet cubicle.

Team Pistorius maintained that at all times, Pistorius held a genuine belief that there was an intruder (and not Reeva) behind the toilet door. Judge Masipa accepted this, found Pistorius could not be guilty of dolus eventualis murder.

Upon this declaration, Pistorius broke down, sobbing.

I confess I struggled with that one myself. I mean, he had a gun, it was loaded, he knew there was someone on the other side, he shot four times. Exactly what else could have been foreseeable at this point? This isn’t the Matrix, after all!

For those tussling like I did – let’s labour the point – Oscar was only on trial for Reeva’s murder. Contrary to the judge’s confusing finding quoted above, Oscar could not have been found guilty on a dolus eventualis charge if he thought he was shooting at an intruder, and that his girlfriend was in the bedroom.

On the basis of the evidence before her, and in particular the evidence of Pistorius’s actions after he discovered it was Reeva in the toilet, Judge Masipa did not accept that dolus eventualis had been made out. Her Lady accepted that at all times Pistorius believed the person behind the door to be an intruder and that all actions taken were in the context of that belief.

And so we were left with one last shot at Oscar (pardon the pun): Culpable homicide.

Under section 258 of the South African Criminal Procedure Act this fall-back verdict is available in circumstances where the intention to kill is not established. A person can be found guilty of culpable homicide under South African law where they have acted negligently in causing a death.

Roux tried to wriggle his client out of this one by arguing that Pistorius’s reaction to a “startle” was reflexive and that it resulted in him lacking criminal capacity as he shot involuntarily.

Right.

Mercifully, Justice Masipa did not buy this one, finally finding that Pistorius acted negligently when he fired into the toilet door, knowing there was someone behind the door, doing nothing to prevent the resultant death.

The Sentence: Justice Denied?

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Five weeks later, her Lady put the world through a couple more days of suspense, listening to submissions and expert opinion on what a suitable punishment should look like. Reweighing the evidence, Judge Masipa had the unenviable task of demonstrating to the Steemkamps, South Africa and the world how she proposed to strike a balance between a sentence that is fair and just to society and to the convicted criminal.

Her final pronouncement: 5 years imprisonment for the culpable homicide conviction.

There was public outrage (presumably from the ever optimistic souls in the Twittersphere who thought Oscar ought to have been hit with the maximum 15 years); personal acceptance (from the Steemkamps); and even some reproach (from various pro-Oscar camps worldwide).

Unless either the State or Pistorius file an appeal, it’s all over. At least until Oscar is released and most probably confined to the comforts of house arrest in about 10 months time for good behaviour. Maybe everyone will be over it at that stage, anyway.

It has been a long road to justice in this case, and many may argue that justice was not served. Some say because Oscar was a rich and famous white man, he was destined to benefit from centuries of white privilege. Others are disheartened by what they see as yet another example of a perpetrator of domestic violence getting away with murder.

But for the Steemkamps and all others who knew and loved Reeva, the inescapable truth is that there isn’t an apology or a conviction or a prison term that would bring back their beloved. Can there ever be justice and closure? June Steemkamp thinks not – unless someone can magically bring her daughter back to life. When all is said and done, therein is the reality of justice. It is at best a bandage, intended to prevent further rupture; it isn’t ever a vaccine against or a cure of society’s ailments.

 

About The Author

Sifa Mtango

Sifa is a Tanzanian nomad, who today calls Sydney, Australia home. A practising solicitor, Sifa has represented clients from various industries conducting legal disputes in New South Wales and the Federal Courts. Outside her day job, Sifa is passionate about international legal and social issues and as a student, she published articles on human rights topics. Today she continues to engage with community and professional groups on issues of significant social relevance, particularly concerning the African diaspora. As a mother of two, Sifa’s greatest joys are her family and friends. She enjoys music, theatre and reading – making time to indulge in these activities as often as the “real world” permits.

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