by John Carlin
When Alan Dershowitz, a celebrated American lawyer who served on the defense team in the O. J. Simpson case, said on CNN on the eve of the trial over which Judge Masipa would preside that South Africa was ‘a failed state’ and ‘a lawless country’, he was only displaying his ignorance. It was true that the ruling party that Mandela once headed had not been immune to the corrupting effects of twenty years of uninterrupted power, and the administration of the state was often incompetent and lax. Crime rates were high and burglaries were on the rise, yet police statistics showed that between 1994 and 2010 the annual number of homicides had dropped from 26,000 to 16,000. The economy grew year in year out and the poor, who now had far greater access to water and electricity than during the apartheid era, were getting less poor. The average increase in the income of black households between 2001 and 2011 was 169 per cent, compared with 88 per cent for white ones; and though whites still commanded a disproportionately high share of the national wealth, the richest person in the country was a black man. It was possible, by a careful selection of the facts and by setting the bar at Western European or American standards of prosperity, to make the case that the new South Africa had been a disappointment. But the truth was muddled and ambiguous. Things could have gone better but, as examples in the Middle East and elsewhere in Africa showed, they could have gone an awful lot worse.
Don Gips, US ambassador in South Africa between 2009 and 2013, observed that one’s view of South Africa depended on what side of the bed one got out of in the morning. Vestiges of racism remained, especially among older white people, and gross incidents of discrimination sometimes surfaced in the press, but Gips, who was appointed by Barack Obama, noted that ‘the everyday racial atmosphere between black and white is more relaxed in South Africa than in the US’. Afrikaner society was, in the main, more free-thinking than it had been when Mandela came to power and, in the big urban areas at least, black and white people mixed in bars and nightclubs with an ease that startled foreign visitors primed to think of the country in apartheid terms.
Baffling to outsiders who studied international politics was the fact that all the usual reasons for countries to fall apart abounded in South Africa. In addition to the racial and cultural fault lines, there were religious ones, too, with Christians, Jews, Hindus and Muslims living side by side. Inequality in terms of income and standards of education remained among the widest in the world. Yet South Africa was a stable, politically vociferous country, where there were no limits on freedom of speech, elections were free and fair, institutions such as parliament and the press were solid and, in terms of almost every democratic box worth ticking, ahead of most nations – not least another country that had abandoned tyranny about two decades earlier, Russia.
As to the generous-heartedness that provided the emotional fuel for the peaceful transition, that also derived from the poverty and the day-to-day disorder in which most black South Africans had always lived. They were more accustomed to tragedy, less expectant of tidy or happy endings than their relatively pampered white compatriots. But there was a cultural element to it, too, a disposition to empathize and to forgive, which black parents had been passing on to their children from generation to generation. A mystery, though not unique to South Africa, was how a country with so many people who had the milk of human kindness flowing through their veins could yield such a high incidence of rape and, despite the drop in the murder rate, so many horrific crimes, not just against women but often against children. The conundrum was as hard to decipher as the character of Oscar Pistorius himself.
South Africa was a country of extremes, of rich and poor, and good and evil, living side by side. Pistorius, a kind and considerate individual given to hair-trigger explosions of anger, exemplified the national schizophrenia. He mirrored South Africa in that he contained much of the best and the worst of the country within him. And he served to illustrate the bigger truth that individuals, like nations, are unfathomably varied and complex, eluding easy definition.
One thing that was certain, however, was that black South Africans displayed a capacity rarely found elsewhere for understanding and forgiving their enemies – helping to explain not only why they had made peace with the whites but also why the ANC had only turned to armed resistance as a last resort, fifty years after its foundation, and why even then the number of civilian victims over three decades was a tiny fraction of the toll exacted in parallel liberation struggles in Africa, the Middle East, Asia and Latin America.
This magnanimous disposition of black South Africans had a name, ‘Ubuntu’, described by one of its most enthusiastic advocates, Archbishop Tutu, as the custom of seeing that ‘a person is a person through other persons’, and that if you seek to diminish others, you diminish yourself. ‘Ubuntu’ was the reigning spirit of the Truth and Reconciliation Commission which Mandela appointed and over which Tutu presided from 1996 to 1998. It was a way to exercise justice that was in keeping with the political circumstances of South Africa at that time and the values that Mandela and Tutu embodied. Rather than pursue retribution, as in the Nuremberg Trials that followed the Second World War, a pact was sought whereby in return for the confession of crimes committed in the apartheid era – confessions made in the presence of the victims or their surviving relatives – the perpetrators would receive state-sanctioned amnesties from prosecution. Over the two years the commission ran Tutu chaired innumerable anguished encounters and ceremonies of forgiveness, as members of secret apartheid-era police units, but also individuals who had killed on behalf of the black liberation struggle, came forward and made their confessions.
In one especially memorable instance, a notorious assassin in the security police called Eugene de Kock appeared before the commission. De Kock, who had served as a colonel at the head of a state-sanctioned clandestine death squad, had already been convicted of eighty-nine charges, including six counts of murder, and sentenced by a regular law court to 212 years in a maximum-security prison in Pretoria. More killings had been carried out under his leadership that the court had failed to register. He chose to confess to them before the truth commission, even though he had no realistic hope of obtaining a reprieve from jail. His reputation had been such that his own security police colleagues used to call him ‘Prime Evil’. What he confessed to at the commission was his participation in the murders of four other activists, with which he had not been charged. In the presence of a horrified Archbishop Tutu, De Kock gave honest, vivid and gruesome accounts of how he had shot his victims and then incinerated their bodies. He also expressed remorse for his crimes and begged forgiveness of their relatives. They granted it.
De Kock duly went back to his cell to continue serving the sentence imposed by the law that Judge Masipa served, though Tutu might have wished for more leniency. In early 2014, around the time when Masipa was preparing for what was likely to be the biggest trial of her life, Tutu gave an interview in which he spelled out his views on what he regarded as the spiritual limitations of the state’s criminal justice system. ‘There is nothing that cannot be forgiven, and there is no one undeserving of forgiveness,’ Tutu said, adding, ‘We cannot ever say a person is a monster. We can say what they did is monstrous. But once you say someone is a monster you are actually letting them off because a monster does not have moral responsibility. You are also saying they do not have the capacity to become different. You are saying they are totally and completely lost and you cannot say that of a human being, ever.’
Those principles were harder to implement within the professional world that Judge Masipa inhabited, but as she herself would have noted prior to the Pistorius trial, there existed two significant and possibly relevant legal precedents for dispensing mercy, even when the identity of the killer was beyond dispute.
In one instance, in May 2004 a man called Rudi Visagie saw his car being driven out of the driveway of his home at five in the morning. He fired one shot at the car, killing the driver instantly. The driver was his nineteen-year-old daughter.
When the case came to be heard, the judge deemed that Visagie had suffered enough and set him free. Approached for comment by the press ten years later, after the shooting of Reeva Steenkamp, Visagie, who had once been a professional rugby player, sided with his country’s greatest sporting idol. ‘I can tell him, I feel for you,’ Visagie said. ‘You can’t take it back . . . you can’t take that bullet back.’
There was also the case of ‘Bees’ Roux, the rugby player who beat a black policeman to death but received a suspended sentence for culpable homicide, with the approval of the victim’s wife and brother, who hugged him in the prosecutor’s office after the deal was agreed.
It is possible that had the victim been a white South African his relatives would have displayed a similar willingness to understand and to forgive. The response to the killing of Reeva Steenkamp was similarly divided among those who had ‘Ubuntu’ in their ancestral culture and those who did not. And also between those who habitually used social media – who were disproportionately white, because whites had a disproportionately greater access to technology – and those who didn’t.
Random samples of opinion among South Africans in the year between the shooting incident and the trial indicated that the attitude of white people towards Pistorius was more vindictive than that of their black compatriots. ‘Pistorius intended to kill her. Let him rot in jail,’ was the majority white view. The ANC Women’s League, a predominantly black organization, had taken the same position after deciding to use the case in its campaign against gender violence. The Women’s League had a credibility problem, though. They had kept quiet when the country’s ANC deputy president Jacob Zuma was tried for rape in 2006 and then, after he was controversially acquitted, openly backed him in his successful bid for the presidency three years later, overlooking the fact that he was a polygynist with four wives.
But among ordinary black people of both sexes and all ages who were not professionally involved in politics, the prevailing response to Pistorius was more sympathetic than it was among whites, regardless of whether or not they were inclined to believe the prosecution charge that he knew who was behind the bathroom door when he fired the fatal shots.
Time and again in conversation with older black women one heard them saying, ‘I think of him and it breaks my heart,’ or, ‘He lost his mother when he was fifteen. I feel I am his mother now.’ Young black men would say, ‘Look how he is suffering. He must not go to jail,’ or, ‘Anyone can do something terrible in a moment when they lose control. It could happen to anybody. We must forgive him.’ Over and over, from Johannesburg to Pretoria to Cape Town, random encounters with black people revealed sentiments along these lines. It was ‘Ubuntu’, as Archbishop Tutu would have been quick to point out, but it also derived from the long history of poverty and curtailed freedom that black people in South Africa had endured. Before, but also after, the end of apartheid, white people entertained the illusion enjoyed by well-off people everywhere that they had control over their lives. Black people, even those whose lives had improved after apartheid, were more likely to carry with them a deeper knowledge, rooted in a keener experience of misfortune, that all individuals were subject to random forces over which they had little control. From this came a greater predisposition to put themselves in the shoes of others, even their enemies. Had blacks done to whites what whites did to blacks for centuries, whites would in all likelihood have shown far less mercy when the day of reckoning came.
Mandela said many times during the four-year transition between his release and 1994 when the terms of the handover of power were negotiated that he understood white fears of black rule. He understood that had he been born white in South Africa he would probably have assumed white racial prejudices. Having been born black, he shared most of his black compatriots’ readiness to judge people on their individual merits rather than on the color of their skin. Not all white South Africans understood that. A number chose to see Mandela as unique in his racial generosity. White South Africans came to venerate him as much as black South Africans did. When he died, three months before the start of the Pistorius trial, on December 5, 2013, his life was celebrated and his death mourned equally by South Africans of all races. But the truth was, as Mandela once said, that the ‘non-racial’ philosophy that had been the driving impulse of the organization he served for seventy years, the African National Congress, came from the people. It had not been imposed from the top down, but from the bottom up.
Judge Masipa was no exception to the general rule. She would be as fair-minded as any white judge in dealing with the white accused, and possibly more capable of imagining herself in his predicament. There was a particular reason to believe so. She, too, was, in practical terms, disabled. A diminutive woman, barely five-foot tall, she was now sixty-six years of age and her bones were riddled with severe arthritis. She walked slowly and haltingly, swaying so precariously that she needed to hold onto someone’s hand to keep her balance when she tried to cover anything but the shortest distances. Pistorius could move more nimbly on his stumps than she could on her feet. In a country where everybody was afraid of crime she would know first-hand that to have limited physical movement increased one’s feeling of vulnerability. The defense’s hope was that in listening to the evidence she might detect a ring of truth in Pistorius’s explanation of what happened that might have eluded a physically more robust, ordinarily able judge.
14
He was a man of a strange temperament, Of mild demeanour though of savage mood.
BYRON, DON JUAN
PISTORIUS HAD always dreaded the notion that people might be sniggering at him behind his back. Now it felt as if the whole world were laughing in his face. In theaters and on TV South African stand-up comics were milking his shame with relish. Nik Rabinowitz, a merciless mimic, who captured his voice perfectly, portrayed him as a moany, trigger-happy psychopath.
During the first three months after the shooting packed houses guffawed at Rabinowitz’s jokes, but one day he was presented with an unexpected dilemma. He ran into the very man he was so profitably ridiculing at a lunch party in Johannesburg, finding himself alone in a room with only Pistorius and one other person present. Rabinowitz had a choice to make. Greet Pistorius or flee the room. For half a minute Rabinowitz froze, pondering what to do. ‘I thought, What if I introduce myself and he says he enjoys my shows? What if I like him? What if I feel sorry for him?’ Rabinowitz said, recalling the absurdity of his predicament with self-mocking delight. ‘The possibilities were frightening. I wouldn’t have the heart to make any more jokes about his legs, about shooting people in toilets. It would ruin my act.’ Rabinowitz raced out of the room without saying hello.
Rabinowitz did not regret his choice. To portray Pistorius as a criminal buffoon, it helped not to know him. Rabinowitz traded on the fact that most of his audiences had only ever regarded Pistorius in caricature terms, as hero or villain. It would not have served his purposes to know that, in person, the famous Blade Runner could not just be likable, but he inspired loyalty. From Gemona, to Boston, to Reykjavik, to London, to Texas, to Pretoria, to Johannesburg, his friends stood by him, for the most part, and lamented his predicament.
It would not have been helpful to Rabinowitz to meet some of those friends, least of all one who was the exact opposite of Pistorius in almost every imaginable way.
Samkelo Radebe was black, Pistorius was white. Samkelo came from a poor background, Pistoris from an affluent one. Samkelo had been raised in a stable family and his mother remained ever present in his life, Pistorius came from a disrupted family and had been effectively orphaned at the age of fifteen. Samkelo had a law degree, Pistorius never completed his university studies. Samkelo had both arms cut off below the elbows, Pistorius had both legs cut off below the knees.
They first met at an athletics track when Samkelo was sixteen and Pistorius, already famous, nineteen. The one thing they had in common was that they were both fast runners.
‘I went up to Oscar, nervous
, thinking he might be arrogant or aloof and, most probably, not interested in talking to a guy he’d never seen or heard of, like me,’ Samkelo recalled, drinking from a straw in a Johannesburg restaurant shortly before the beginning of the murder trial. ‘But I plucked up my courage and I said to him, “You’ve done us very proud.” And he shook my arm and said, “Thank you, that means a lot to me,” and then he said, “I’ve seen you on the track. You’re really fast. Keep running. Work hard, and you’ll get far.” And I said to myself, “What the fuck? He’s seen me – me – and he says I must keep running?” It was crazy, unbelievable. I mean, he was so big. That made a huge impression on me. It changed my whole attitude. I did as he said. I worked hard, stopped playing and made it my aim to make the Paralympics team in 2008. After that meeting with Oscar I was on fire. On fire!’
Samkelo was a man who had every reason to have a complex, but betrayed no suggestion of one. He was short and wiry, chirpy in his manner, but walked with an athlete’s princely strut. He wore no prosthetics in public, went about in short sleeves, saw no need to hide his mutilated limbs from himself or other people. Betraying no self-consciousness on a first introduction, he would reach out his right stump, inviting one, with an impish smile and a wink, to wrap one’s fingers around it and give it a shake. He was good-humored, funny and clever, exuberantly determined to accept life on the terms he had received it. Hugh Herr, the MIT professor who had lost his legs in a climbing accident, had said that amputees like himself and Pistorius came out of their experiences ‘stronger than hell’. This seemed to be especially true of Samkelo, who had endured a loss far more punishingly restrictive than either Herr or Pistorius, and whose easy, impish nature disguised a big reservoir of moral courage.