by John Carlin
Roux did not move a muscle, though inside he was elated. Nel had remained impassive throughout the judgment, but not any longer. He shook his head vigorously.
As if responding to the prosecutor’s dismay, the judge analyzed her own finding. It rested to a significant degree on Pistorius’s reaction immediately after the shooting.
‘The evidence shows that from the outset the accused believed that, at the time he fired the shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident.’
Among these people, the first had been the Silver Woods estate manager, Johan Stander, at 3.19 a.m., five to seven minutes after Pistorius had fired the shots; Stander’s daughter, Clarice, three minutes later; a few minutes after that, Dr Johan Stipp; and at about 4 a.m., the police.
‘Counsel for the defense correctly argued that it was highly improbable that the accused would have made this up so quickly and been consistent in his version even at the bail application before he had access to the police docket and before he was privy to the evidence on behalf of the state at the bail application.
‘The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.
‘How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility, that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.
‘To find otherwise would be tantamount to saying that the accused’s reaction after he realized that he had shot the deceased was faked, that he was play-acting merely to delude the onlookers at the time.
‘Doctor Stipp, an independent witness who was at the accused’s house minutes after the incident had occurred, stated that the accused looked genuinely distraught, as he prayed to God and as he pleaded with him to help the deceased. There was nothing to gainsay that observation, and this court has not been given any reason to reject it, and we accept it as true and reliable.’
The lunch break came and the judge left the chamber. June Steenkamp shook her head. Barry Steenkamp revealed no emotion at all. A female cousin of Reeva’s broke into sobs, as did Reeva’s best friend, Gina Myers. Pistorius, sitting perfectly still, wept too. The tears he had been containing welled up, as if he were not quite ready to digest the enormity of the judge’s words. Aimée ran forward to his side, smiling as she had never done since the trial began, put her arms around him and kissed him.
Nel left the courtroom devastated, members of the prosecution team said. The supposition among observers in the public gallery was that in due course he would lodge an appeal, but meanwhile the irony could not have failed to strike him that a witness he had brought to the stand had turned out to be the best witness for the defense. Johan Stipp had not only undermined the state’s case when he testified about the sounds that he had heard, effectively confirming Pistorius’s version of the sequence of events, but he had drawn attention to Pistorius’s frantic pleas to try and save Reeva, barely fifteen minutes after shooting her
Roux, who had warned his legal team the night before the judgment to brace themselves for the possibility of a dolus eventualis verdict, was a picture of barely contained euphoria. ‘It’s going to be “culp”! It’s going to be “culp”!’ he smiled to his confidants.
Roux and Nel found themselves together in a back passage of the courtroom building, by the judge’s chamber, for fifteen minutes during the lunch break. They did not talk to each other.
Court resumed at 14.16.
‘I now deal with negligence in culpable homicide cases,’ Judge Masipa began. ‘In determining whether the accused was negligent in causing the death of the deceased, this court has to use the test of the reasonable man.’
The judge provided a hypothetical example of a possibly reasonable response to a perceived threat. ‘If the accused, for example, had awoken in the middle of the night and in darkness saw a silhouette hovering next to his bed and had in a panic grabbed his firearm and shot at that figure, only to find that it was the deceased, his conduct would have been understandable and perhaps excusable.’
Seeking excuses had been Roux’s purpose in providing ample evidence of Pistorius’s troubled childhood and, in particular, the influence his mother had had in shaping his perception of crime. The judge dispensed with this line of defense in less than a minute.
‘Growing up in a crime-ridden environment, and in a home where the mother was paranoid and always carried a firearm, placed the accused in a unique category of people. This would explain the conduct of the accused that morning, when he fired shots at what he thought was an intruder, it was argued.
‘I agree that the conduct of the accused may be better understood by looking at his background. However, the explanation of the conduct of the accused is just that: an explanation. It does not excuse the conduct of the accused. Many people in this country experience crime, or the effects thereof, directly or indirectly, at some time or another. Many have been victims of violent crime, but they have not resorted to sleeping with firearms under their pillows.’
Neither was the judge persuaded by the disability argument, noting that ‘millions’ of South Africans felt as vulnerable as Pistorius did in the face of crime.
‘The accused had reasonable time to reflect, to think and to conduct himself reasonably. On the facts of this case, I am not persuaded that a reasonable person with the accused’s disabilities in the same circumstances would have fired four shots into that small toilet cubicle. Having regard to the size of the toilet and the caliber of the ammunition used in the firearm, a reasonable person with the accused’s disability and in his position would have foreseen that if he fired shots at the door, the person inside the toilet might be struck and might die as a result.’
Inexorably, the judge’s findings were leading her to one conclusion, and it came in the last act of the day’s drama.
‘I now revert to the relevant questions.
‘First, would a reasonable person in the same circumstances as the accused have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door might be struck by a bullet and die as a result? The second question is: Would a reasonable person have taken steps to guard against that possibility?
‘The answer to both questions is, yes.
‘The last question is: Did the accused fail to take steps which he should reasonably have taken to guard against the consequence?
‘Again the answer is, yes. He failed to take any step to avoid the resultant death.
‘I am of the view that the accused acted too hastily and used excessive force. In the circumstances it is clear that his conduct was negligent.’
With that, Judge Masipa declared the day’s proceedings over. She would deliver the formal verdict the following morning, once she had completed her examination of the three firearms charges against Pistorius. But there was no room left for doubt as to the main charge. Culpable homicide would be the verdict.
Rarely would a man found guilty on a criminal charge, possibly liable to a jail sentence, have felt such satisfaction. Pistorius, no longer tearful, stood up for the judge’s departure from the room and remained standing as Aimée, Arnold, Carl and other family members took turns to hug him. The Steenkamp family left the courtroom saying nothing and revealing nothing, but Pistorius did have something to say to Barry Roux.
‘I don’t give a shit about the sentence,’ Pistorius told Roux. ‘I am not a murderer.’
Pistorius might find that he cared more about the sentence when the time came for Judge Masipa to pronounce it, still some weeks hence, but at that moment what he felt most was a sense of vindication. He had said from the very beginning, within seven minutes of shooting Reeva, that it had been
an accident, that he had not intended to kill her, and a high-court judge had determined that he had spoken the truth. A vast weight had been taken off his shoulders, and that night, at a barbecue with friends, it showed. There were moments during the evening when he withdrew into himself, a shadow fell over his features, but for the most part he chatted amiably, even taking it upon himself to turn over the meat on the fire, in a more carefree frame of mind than at any time over the previous nineteen months. He left early, with the party still underway, but before going he said that, at long last, he would be taking to his bed with some measure of peace.
Judge Masipa began proceedings at 9.35 on the morning of September 12, launching straight into count two, the charge concerning the shot Pistorius had allegedly fired through the sunroof of a car in September 2010. Here it had been one word against two: Pistorius on the one side, his former friend Darren Fresco and his ex-girlfriend, Samantha Taylor, on the other. He denied the charge; they said they had seen him fire the gun.
But the judge found Fresco’s evidence to be damningly unreliable. She described him as ‘not an impressive witness at all’, as a ‘dishonest’ witness who had told lies. She said that he had failed to point out convincingly the spot on the road where the alleged incident had happened, even though he, Fresco, had been driving, and she described as ‘an unlikely story’ his claim that Pistorius had fired a shot through the open sunroof without warning.
Fresco’s evidence having been discounted, the verdict now came down to Pistorius’s word against Taylor’s.
The judge did not accuse Taylor of dishonesty, but did say she saw some relevance in the fact that her relationship with Pistorius had not ended amicably. ‘It was clear from the evidence of Taylor that she had been hurt by the manner in which the relationship had terminated.’
This, the judge hastened to add, did not ‘necessarily mean that she was out to falsely implicate the accused’. But it did mean Taylor’s evidence should be approached ‘with a degree of caution’. While acknowledging that there was more of a ring of truth in her evidence than Fresco’s, providing the additional detail he had omitted that Pistorius had fired the alleged shot after first joking with Fresco that he wanted to shoot at a traffic light, the problem was that Taylor’s evidence was at odds with Fresco’s claim that the shot had come out of the blue. Yet she found Taylor to be ‘a poor witness’, which meant that – including Pistorius, whom she had already described in such terms – the court had been faced ‘with three poor witnesses’. But, as with the murder charge, the onus was not on Pistorius to prove his innocence, the judge said, but on the prosecution to prove his guilt. They had not done so.
‘The state witnesses contradicted each other on crucial aspects – namely, the circumstances under which the shot was fired, and when and where exactly the shot was fired. The evidence placed before the court falls short of the required standard for a conviction in a criminal matter. This court’s conclusion is that the state has failed to establish that the accused is guilty beyond reasonable doubt on this count, and has to be acquitted.’
Count three concerned the pistol Pistorius had accidentally fired in a crowded restaurant, Tasha’s, in Johannesburg, in January 2013. The judge noted that no one had contended that Pistorius had fired the bullet intentionally. This, she said, did not matter. The question was whether the accused had acted negligently.
‘What is relevant,’ the judge said, ‘is that the accused asked for a firearm in a restaurant full of patrons and that while it was in his possession, it discharged. He may not have intentionally pulled the trigger. However, that in itself does not absolve him of the crime of negligently handling a firearm in circumstances where it created a risk to the safety of people and property, and not taking reasonable precautions to avoid the danger.’
The judge did not absolve him. She ruled that the prosecution had proved beyond reasonable doubt that Pistorius had contravened the relevant firearms law in asking for the pistol in a crowded place, as he admitted he had, and then handling it under a restaurant table.
Count four was the most innocuous of the charges Pistorius faced – namely, that he had had bullets in his possession at his home for which he did not have a lawful permit, but which he claimed he had been holding in safekeeping for his father. The judge recalled that Pistorius had said he had had no intention of ‘possessing’ the ammunition, a claim that was not corroborated. But neither did the state come up with evidence to the contrary. The judge swiftly reached her conclusion.
‘The state has failed to prove that the accused had the necessary animus to possess the ammunition. He therefore cannot be found guilty on this count.’
At 10.19, forty-four minutes after the morning session had begun, Judge Masipa turned towards Pistorius.
‘Mr Pistorius, please stand up,’ she said. He did so, with his hands folded in front of him, his eyes on the judge. ‘The unanimous decision of this court,’ she said, ‘is the following.’
By ‘unanimous decision’ she meant that the two assessors who had sat silently by her side during the whole of the trial, Janet Henzen-du Toit and Themba Mazibuko, both agreed with her verdicts.
On count one, the judge said: ‘Murder, read with Section 51(1) of the Criminal Law Amendment Act, 105 of 1997, the accused is found not guilty and is discharged. Instead, he is found guilty of culpable homicide.’
On count two, Pistorius was found ‘not guilty and discharged’; on count three, ‘guilty’; on count four, ‘not guilty and discharged’.
*
While the judge remained in her chair, the solemn protocols of the court allowed for no manifestations of the triumph and disappointment the defense and prosecution teams felt. The climax of the trial delivered the most anticlimactic of responses. Barry Roux stood up and said, almost matter-of-factly, ‘As the court pleases.’ Gerrie Nel, subdued, echoed Roux’s words.
21
One’s personality is only a ridiculous and aimless masquerade of something hopelessly unknown.
JOSEPH CONRAD, FROM A LETTER TO A FRIEND
THE VERDICT was not quite the end of the matter. After delivering it, Judge Masipa did not stand up and exit the courtroom. Pistorius had been found guilty of a serious crime and sentence still had to be passed. That would not be done today. But an urgent question remained and it had to be attended to straightaway – would Pistorius be ordered to spend the time between the verdict and sentencing behind bars? Gerrie Nel had no doubt as to what the answer to that question should be. He gave the judge a number of reasons why she should rescind Pistorius’s bail.
The first was that ‘a lengthy imprisonment was probable’. The second reason, more unexpected, offered a glimpse of the kind of evidence Nel might have wished to introduce earlier in the trial but could not, because it had not been strictly germane to the case. It concerned an incident two months earlier, after the end of the defense case but before closing arguments, when Pistorius appeared to have revealed how short his temper was – a side of his personality of which the court had heard relatively little. It had happened at a night club called The VIP Room, in the affluent Johannesburg suburb of Sandton, where he had gone late at night on Saturday, July 12, with a cousin. According to various press reports, Pistorius, ‘drunk and aggressive’, had got into an altercation with a South African racing driver, whom he had not previously met, called Jared Mortimer. Mortimer said there had been an argument and Pistorius had poked him in the chest and pulled him around the neck, causing bouncers to intervene. Mortimer also said Pistorius had insulted the South African president, Jacob Zuma. According to Nel in his statement to Judge Masipa, Pistorius was asked to leave the nightclub.
Once more, though, the truth of what had happened in an incident involving Pistorius was to remain hazy. The nightclub’s manager was quoted in the press as saying that everything had been blown out of proportion and that Pistorius had left, ‘like any other normal patron’, of his own free will.
But evidence that an altercation of so
me sort had occurred, that Pistorius was worried about the consequences and that he felt the need to exercise some damage control, came the next day when he broke what had been a five-month silence on Twitter with three posts in quick succession. The first was a passage from the Bible that read, ‘The Lord is close to the broken-hearted’. The second, against the background of a photograph of Pistorius with disabled children, read, ‘You have the ability to make a difference in someone’s life. Sometimes it’s the simple things you say or do that can make someone feel better or inspire them.’ The third tweet was an extract from a book called Man’s Search for Meaning by Victor Frankl, a survivor of the Holocaust. It read, ‘I understood how a man who has nothing left in this world still may know bliss, be it only for a brief moment, in the contemplation of his beloved.’
Two days later, the Pistorius family had issued a statement that gave further credence to the allegation that there had been an altercation of some kind at The VIP Room. ‘Whilst Oscar, venturing out in a public space with his cousin in the current climate and whilst his court case is still underway, was unwise, those of us closest to him have been witnesses to his escalating sense of loneliness and alienation,’ the family statement read. ‘This, we believe, is underlying some of his self-harming behavior. As a family we are counselling Oscar to find ways of dealing with his feelings of isolation.’
Now, at the trial, with Nel’s latest application to rescind bail underway, the Pistorius family regretted their choice of language. Nel had seized on the term ‘self-harming’ to suggest to the judge that unless Pistorius were kept in custody he might attempt suicide. It also offered Nel an opportunity he did not wish to let pass by of depicting Pistorius in a reckless light.
Roux’s response to Nel was, first, that he disputed the facts of the nightclub incident as presented by Nel, but would not enter that debate now. The term ‘self-harming’, as used by the family, had not had a physical connotation, Roux said, but referred more to their awareness that for Pistorius to go out in public was to invite potential problems. Roux’s main reply to Nel, however, concerned not the nightclub incident but the fact that Pistorius had been released on bail a year and a half earlier, when charged with murder, ‘a far more serious allegation than culpable homicide’, and that he had complied with the bail terms. Judge Masipa withdrew from the chamber for two hours to decide her ruling, during which time, at Nel’s insistence, Pistorius was kept in a holding cell in the court building, where he sat with his lawyer, Kenny Oldwadge, for company.