I arrived early at the North Gauteng High Court in Pretoria on the 9/11/2014 where a huge crowd of both journalists and the public had gathered outside court in anticipation of the judgement in the case of Paralympic star Oscar Pistorius. I had been cautioned to expect protests outside of the court and that there may be disruptions in traffic flow around the court as a result thereof. There was an army of journalists setting up outside court doing camera, sound and equipment checks. It was a hive of activity with the public sporting tee shirts, banners and posters some in support of Pistorius and others baying for his blood. I would literally have to run the gauntlet to enter the building later in the day.
I did get the idea from social media that people were expecting the judgement to include the sentencing of Pistorius which is not the case. The judgement will conclude the second phase of the trial and one read we would learn on which charges Oscar Pistorius would be found guilty and on which charges he would be found not guilty.
THE VERDICT
When the Judge took her seat on the bench without any ado she began reading her judgement. It was clear to me from the outset that she was going to acquit Pistorius on the charge of Premeditated murder which a charge I have always felt the State failed to prove beyond a reasonable doubt. The surprise came when she acquitted Pistorius on the murder charge.
I could understand the reasoning she put forward on there being no direct intent to kill Reeva Steenkamp. Given that she indicated that she believed Oscar Pistorius version that he believed that an intruder had entered his home. However many legal experts have criticised the reasoning she employed in discharging Pistorius on the simplest form of intent known as Dolus Eventualis. In which she indicated that Pistorius could not have anticipated that he would kill Reeva Steenkapm as he believed that she was in bed. Also she believed him when he had told the court that he had no intention to kill anyone. He had supported this by adding that if he had wanted to kill the people/person in the toilet he would have aimed at chest height.
To convict on murder using intent in the form of “Dolus Eventualis” means that Oscar must have appreciated the fact that when he fired the shots, this could have killed the a person behind the door, especially as he was firing into such a confined space and using the calibre of weapon and type of ammunition that he was did. Additionally he would have had to have accepted this possibility and made a decision to fire despite his appreciation of the fact that he could kill Reeva rf any other person locked in the toilet.
She explained that the onus of proof rests with the State and that if the accused’s version is reasonably possibly true then the court has no option, but, to accept his version and give him the benefit of the doubt.
Judge Thokozile Masipa explained that she found the Accused, Oscar Pistorius to be a poor witness. She said that he was evasive and untruthful during the cross- examination, even though, he had been faultless under the examination in chief. She went so far as to say that she found him combative, argumentative and determined to place testimony on the record that in no way related to the questions he was asked and concluded that he did not listen to the questions posed by Prosecutor Gerrie Nel. However in the end she accepted his testimony, accepted that he believed there was an intruder in his home. She accepted that he was the only person alive that knew what had happened in his home on the night he had killed Steenkamp.
The Judge also relied heavily on the timeline advanced by the defense. She used the timeline to reject the testimony of the ear witnesses and the neighbours. Saying that she believed that they were honestly mistaken in what they had interpreted from what they thought they heard.
The murder charge was thus discharged, to the absolute shock and horror of much of South Africa and to the absolute delight of the Pistorius family, the Pistorians and the supporters of Oscar Pistorius. Of course this set the social media ablaze and Twitter went berserk. With opinions from lay persons and legal experts alike, both positive and negative. Many believed the law had been incorrectly applied opening the door to a possible appeal by the state.
The Judge moved quickly forward to tackle the composite verdict of Culpable Homicide. She concluded that Oscar Pistorius had not acted reasonably when he had killed his girlfriend. She explained that the reasonable man would have appreciated the fact that if he fired into the toilet door there was a possibility that he could kill a person on the other side. She went on to say that a reasonable man would have taken steps to prevent killing unlawfully. She said that he had acted impulsively and in haste not giving reasonable thought to the consequences of his act. She went on to say that she felt that he had used excessive force given the circumstances. She referred to the fact that he was well trained in the use of firearms and knew the law pertaining to the circumstances under which it would have been legal for him to fire. Judge Masipa found that Pistorius had acted unreasonably and negligently, in killing Reeva Steenkamp.
In the middle of reading through section pertaining to culpable homicide she abruptly adjourned court for the day indicating that she would continue the following morning. However she had already strongly indicated that a conviction on Culpable Homicide was on the cards.
On Friday the 12/09/2014 she ultimately convicted on the composite verdict of Culpable Homicide. This could carry a sentence of up to 15 years but there is no mandatory minimum sentence and he may even get correctional supervision and avoid incarceration completely.
On day two the Judge opened the day with her evaluation of the gun related charges. She kept mixing up charges two and three which caused some confusion for journalists reporting the story around the world.
To keep things simple I am going to deal first with charge 2. This was the charge that pertained to the discharge of the weapon out of the sunroof of the Mercedes Benz. She found that Fresco was not a credible witness and that his testimony should be approached with caution. She explained that due to the fact that Sam Taylor’s and Pistorius’ relationship ended poorly her evidence should similarly be approached with caution. She said that besides the fact that both Taylor and Fresco stories were similar pertaining to the fact that a weapon had been discharged, their accounts were completely inconsistent regarding the circumstances under which this had happened. This included where it had happened, how it had happened , why it happened and how the accused had reacted after discharging the gun. She found that the State had failed to prove its case relating to this charge and that both the witnesses were poor in her opinion. I must say that I had similar feelings and also felt that the State had not met its burden of proof on this charge. I was not at all surprised when she found Pistorius not Gulty and discharged him on this count.
With reference to the third charge or the incident where the firearm was discharged in Tasha’s restaurant. Judge Masipa fount the witnesses to be credible. She felt that Kevin Lerena was a good and believale witness and that he had shown no bias against Pistorius during his testimony. She also found Fresco’s evidence in regard to this count to be believable. Although she did point out a few instances where she did not believe certain conversation or exchanges had taken place. She felt that both Oscar Pistorius and Darren Fresco had behaved negligently in passing a loaded firarm between them in a busy restaurand. The felt that the State had met their burden of proof with reference to this charge and found Pistorius guilty on the second alternative charge which is the contravention of section 120 3b of the Firearms Control Act.
With reference to the fourth count which was the illegal possession of 38 rounds of Z38 calibre ammunition for which he held no licence. The judge found that the state failed to prove the required intent and as such did not prove its case beyond a reasonable doubt. On count four, Contravention of Section 90 of the Firearms Control Act 6c of 2000 he was found not guilty and discharged.
To be frank I was absolutely floored by the not guilty verdict handed down here. Pistorius was in possession of the ammunition, it was found in his safe, he had no licence to possess it and yet he was acquitted. If any of the charges were a slam dunk for the State, I felt it would be this one. But in the end court cases have a tendency to make fools of us all.
I think that should the State not be satisfied with the sentence imposed on Oscar we could well see the state appeal both the murder and the possession charge acquittals as I am not totally convinced that the judge has applied the law correctly on either count.
REACTION FROM THE FAMILY’S
Reeva Steenkamp’s friends and member of her family started crying uncontrollably as the verdict was read out. Kim Martins, Reeva’s cousin was visibly devastated by the verdict and sat looking at the floor, in shock, after the verdict was handed down while being consoled by her husband.
Steenkamp’s friend also Gina Myers started crying and was consoled by her mother Desi and sister Kim who was also visibly upset and seen shedding a tear.
With the judgement complete Pistorius sat down on the hard wooden bench, staring straight ahead. An aunt, seated in the front row, briefly closed her eyes and appeared to be praying as her lips moved silently.
A short while later Oscar’s uncle Arnold, who has bankrolled the case, made a short statement wherein he expressed his gratitude to the Judge. He added that there had been no winners in the case and acknowledged the pain of the Steenkamp family.
REACTION FROM THE PUBLIC
Reaction from the public ranges from complete shock and an overwhelming sadness that the justice system has once again failed abused women. There is also a lot of criticism aimed at the Judge. People are very negative about Judge Masipa in the social media with only one percent of people worldwide having anything positive to say about her.
There is also a sense that money buys justice, some people asking what the judge was paid by the Pistorius family for her verdict.
Conversely the supporters of Oscar Pistorius felt that he should have been acquitted on all counts and are equally unhappy.
There are a few commentators saying that the verdict was fair and that they felt the judge had properly applied her mind.
Sentencing is set down for the 13th to the 16th of October when I suspect we will all be back in court for evidence in mitigation and aggravation of sentence.
I am available to assist anyone who requires help. Expert Profiling is contactable on Tel: 390 9957 email – [email protected] or [email protected] or on Twitter @LauriePieters.
