Wednesday, January 19, 2022

Oscar trial: Common Law vs Bill of Rights enshrined in the Constitution

PRETORIA: The South African justice system is faced with the daunting task of striking a delicate balance between two competing interests of Common Law and a Constitution which enshrines the Bill of Rights in the sentencing of an international amputee athlete found guilty of culpable homicide. The Pretoria High Court last month found Oscar Pistorius (27) – famously known as Blade Runner – not guilty of murder but culpable homicide for killing his girlfriend of three months Reeva Steenkamp (29) at his Pretoria mansion on Valentine’s Day of 2013 after he mistook her for an intruder.

Between now and Monday Judge Thokozile Masipa will study the week-long aggravating and mitigating submissions by the State and the defence before sentencing Pistorius on Tuesday. State prosecutor advocate Gerrie Nel on Friday asked the Pretoria High Court to commit the habitual sobbing athlete to a custodial sentence of 10 years while the defence led by advocate Roux pleaded for a correctional supervision of three years. Pistorius’ lawyer in his plea for mitigation asked the court to exercise compassion which he deftly referred to as Ubuntu. He submitted that on account of his remorsefulness the athlete voluntarily offered to pay Reeva’s parents the sum of R375 000 ÔÇô an offer which was turned down by the family as “blood money”.

Pistorius’ defence submitted that the Blade Runner could not be committed to a custodial sentence due to his disability which needs constant medical attention and that he had endured pain and suffering for the past 18 months of his trial. He said that Pistorius has lost money through his legal fees including loss of four immovable properties and movable properties and sponsors. “He is not only broke but also broken from the ridicule, denigration and false allegations that he was a cold blooded murderer. He was absolutely exposed worldwide. No punishment can be worse than that of the last 18 months” said Roux. He said Pistorius had suffered moral punishment in that he lost someone he loved, lost reputation, friends and source of income.

He submitted that Pistorius was a vulnerable person. Nel said the financial offer by Oscar to Reeva’s parents was disingenuous in that it came between the judgement and sentencing. “The offer is not something positive. Why was the offer not made earlier during the trial or later? The offer was nothing but an attempt to influence sentence. It was made for purposes of the sentence” argued Nel. He said the correctional supervision of two days in a month for three years sought by the defence was “shockingly inappropriate”. Nel warned that anything other than a custodial sentence has the potential to encourage people to take the law into their own hands.

Independent lawyers told the Sunday Standard after court proceedings that the South African Justice system is sensitive when coming to apply the theories of retribution, deterrence and rehabilitation as punishment owing to the country’s apartheid past.

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