Wednesday 12 May 2021
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The Oscar Pistorius Trial of the Century

Judge Chris Greenland

Once again the world’s eyes are turned on South Africa in awe, bemusement and fascination as the wheel of justice in this trial slowly grinds to a conclusion that seems too long in its coming. It seems eons ago that we woke to the shocking news that Oscar Pistorius had taken the life of Reeva Steenkamp, a stunningly beautiful young woman on the brink of taking the world by storm. Pistorius is no ordinary human. His is a story of the almost legendary surmounting of really bad odds. As a toddler, he suffered amputation of both his legs and, at age 15, he lost his dear mother, who was acting as a single parent. He has never had a meaningful relationship with his father. Despite fate dealing him such bad cards, with incredible grit, determination, application and resilience, he rose to become the first double amputee to be pitted against able-bodied athletes in the ultimate arena of human competition. His is perhaps an unmatchable story of the indomitable human spirit that reposes in man and becomes gloriously manifest when severely challenged. The sight of Oscar winging along the track on his stumps, at the Olympics, beating able-bodied athletes, excited and thrilled one’s senses in a way that was indescribable and will certainly never be forgotten. Oscar was not disabled. He was bionic man, an icon. It was the stuff of fables.

So when the awful news broke that fateful morning, we were left stunned – numbed to the very core. Those feelings then simmered and bubbled along, as the subsequent trial was played out on Carte Blanche’s TV international coverage. Media experts produced daily graphs to prove that the whole world was gripped by the trial at unprecedented levels that exceeded the interest in the OJ Simpson trial by some way indeed. The facts were simple enough. Oscar admitted that he had fired four shots at Reeva from close range, killing her outright. What then seemingly confused, bemused and tripped up, even the court itself in the end, was that the shots had been fired through the closed door of a toilet in which Oscar claimed he believed there were intruders. There was much shedding of tears and vomiting/retching by Oscar in serving up this explanation for the killing.

In the end the world was once again stunned and somewhat numbed when the court made the incredible finding that Oscar had not intended to kill, and had not foreseen that he might kill, but was only guilty of unlawfully killing by mistake, as so many drivers do in their cars when they are momentarily inadvertent. So the verdict was culpable homicide, not murder. He was sentenced to a mere five years imprisonment of which he was to serve just ten months. The world was stunned. The verdict and sentence were wrong. Justice had not been done and seen to be done.

But why?
The reason was simple, that is,. human error. The court, comprising a Judge sitting with two admitted Advocates, made a simple mistake in concluding that when Oscar fired those four shots through that door “he did not foresee that he might kill”, because he did not know that it was Reeva behind the door, even though the law clearly makes the identity of the victim irrelevant. In my view, with respect, this error compounded another error in which all members of the court were complicit. The court had agreed that the test to be applied was whether or not Oscar had “foreseen that he might kill” (dolus eventualis) instead of “was there intention to kill when he fired” (dolus directus). With respect, the door confused everybody. Had the door not been there everyone would have understood that intention, not foreseeability was the issue. The door made no difference in that Oscar knew that the bullets would go through and find his human target. Had he fired above head height in order to only frighten the imagined intruders, then the question would have been “did he not foresee that, in that confined space of a toilet, the bullets would ricochet and kill?” – that is dolus eventualis. When you fire straight at another being it is always a matter of intention, that is, dolus directus. The Supreme Court of Appeal corrected the verdict to murder finding that he did indeed foresee death, sending the matter back to the trial court for sentence afresh. By this time Oscar had served the ten (10) months.

What will Judge Masipa do?
The law stipulates a minimum sentence of 15 years for murder, unless there are compelling circumstances justifying a lesser sentence. The State contends that there are no such circumstances and that minimum of 15 years must be imposed. The Defence contends that there are compelling circumstances, and that he should be sentenced to community service. The Defence has led the evidence of a clinical psychologist that Oscar deserves to be seen as a special case because of all the suffering he has endured, and is enduring as a human being, and the potential he has to do good if given a chance. State Counsel, Nel, has attacked the evidence of this witness in order to show bias and, especially that Oscar has never shown true remorse for the killing. Nel has also led the evidence of Reeva’s father, Barry Steenkamp, and Reeva’s cousin Kim Martin, to bring home to the Court the enormity of Oscar’s action in its effects. The wheel of justice is making its final turn. Will it stop as a wheel of fortune or roulette wheel does? If that is the case, justice will have been betrayed, as it can never be a matter of pure chance.
Justice will only have been done if, when the wheel stops, humanity feels a solemn exaltation that justice has been done and seen to be done.

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