by Mandy Wiener
Nel then raised a crucial legal principle – that even according to Oscar’s own version to the court, he had planned to kill a person. He suggested that if the court accepts the applicant’s version of events, then all that would remain is that Oscar planned to kill an intruder. ‘Everything he did up until the time he shot was planned. So on his version, “I didn’t plan to shoot Reeva, but I planned to shoot that intruder”, it’s planned,’ he exclaimed. Nel argued that no court would accept that Oscar had acted in self-defence on the version that he had provided. There were two people in the house, and only one survived to provide a version.
Nel stated that it was highly improbable that Oscar felt vulnerable, considering he stormed at the supposed intruder in the bathroom. He said that it was also highly improbable that Oscar would have fired the shots without first establishing whether there was indeed a threat.
Nel explained that even in Oscar’s own version of events, he had the intention to kill. He asked rhetorically, for effect, why Oscar would have wanted to shoot.
‘There’s a question that we ask, why did he shoot? Did he want to kill the intruder, not Reeva? Let us give him the benefit of the doubt. “I’ve never wanted to kill Reeva but I wanted to kill the intruder” on his own version. It’s not my version. He must say that otherwise why did he fire? Did he just fire to scare? He fired four shots through a door 1.4x1.14. “I know, it’s my house”, just to scare someone, at a height that can hit you or could he fire into the bath or anywhere? He must say: “I fired to kill” because I struggle to see if it’s not murder preplanned or with dolus directus then it must at least be murder dolus eventualis. “I fired, I thought there might be somebody in, there was a risk but I took the risk and I fired,” I don’t think so. It cannot be his version. His version must be: I wanted to kill someone in that cubicle because that’s why, I felt threatened.’
Nel was at the climax of his closing argument. He argued that there was only one person who could provide insight into the incident and he was sitting in court – but he had elected to give an affidavit and not take the stand. It would have been so much better for Oscar to take the court into his confidence, concluded Nel.
Judgment in the Bail Hearing
By the last day of the bail hearing the Justice Department finally appeared to have come up with an access system that worked. The media interest had been unprecedented. Even when the country’s President Jacob Zuma and National Police Commissioner Jackie Selebi had made appearances in court, there had not been the same number of reporters attempting to gain access to a courtroom. For the Oscar Pistorius case reporters had arrived from across the globe and, in the corridors outside the courtroom, journalists could be heard filing stories in a variety of languages.
That Friday morning Oscar’s coach Ampie Louw was passing the time chatting to journalists in his relaxed, down-to-earth manner. He said it was heartbreaking seeing the youngster whom he’d trained for nine years standing in the dock. ‘If he gets bail I want him back on the track as soon as possible,’ he said. Louw confirmed that all Oscar’s competition commitments had been cancelled, but he still wanted him back on a training plan.
The day’s proceedings began with Nel making a few final arguments against bail being granted. He was unemotional and ruthless as he contended that Oscar’s tears throughout the week’s proceedings were likely the result of his realising that his career was in tatters after the shooting. The athlete’s sister Aimee raised her hand to her mouth, visibly shocked at the way Nel was referring to her brother, whose head was again bowed.
The prosecutor referred to President Zuma’s recent state of the nation address during which he made a call for crimes against women to be prioritised. ‘The degree of violence present in this case is horrific. You’re stuck in a cubicle where someone fires blindly into it, not one, not two, but four shots,’ he emphasised.
The magistrate enquired as to what kind of life the accused would lead if he were to flee – after all, he was recognisable throughout the world.
‘A life of freedom,’ insisted Nel.
But Nair went further, asking how his prostheses would affect his life on the run. Nel argued that the athlete could not be treated any differently as an accused simply because he was physically disabled.
Nair had heard enough, and retired to his chambers to prepare his ruling. Judgment would be delivered at 2:30pm.
For the duration of the third week in February 2013, South Africa endured what Editor-in-Chief of Eyewitness News Katy Katopodis described as the five stages of grief outlined by the Kübler-Ross model: Denial, Anger, Bargaining, Depression and Acceptance in varying orders.
The Valentine’s Day shooting and the deep emotion that accompanied the tragedy shocked the country to its core. Oscar Pistorius had been South Africa’s ‘good thing’, a celebration of achievement in the face of adversity, a unifying character proudly paraded on the world stage. For there to have been such a dramatic fall from grace, a collapse of Shakespearean proportions, was simply incomprehensible.
The nation was raw and the tragedy was virtually the only thing that anyone could talk about. It was as if every individual took personal ownership of the incident. From each hairdressing salon to coffee shop to corner café and water cooler, the merits of the case were debated and versions dissected. The upshot was that regular laypeople became better educated about the criminal justice system and processes that were followed. But the downside was that every citizen was now a ‘legal expert’ and believed their understanding to be the correct one.
As information emerged from the Pretoria courtroom, emotions and attitudes shifted. The pendulum of public opinion swung. When Hilton Botha was on song, being led through his evidence by Gerrie Nel, popular consensus was that Oscar Pistorius was absolutely, without doubt, guilty. Later in the day, as the captain was forced into several awkward concessions and it was then revealed that he too was facing criminal charges, there was an about-turn on Twitter and on radio talk shows. The overwhelming view was that the police were incompetent and it was all just a terrible, unfortunate accident. Emotions vacillated from one end of the spectrum to the other.
The full attention of the country was focused on the courtroom in central Pretoria and the decision of the Chief Magistrate.
By the time Barry Roux and Gerrie Nel had finished presenting their closing arguments to the court, Magistrate Desmond Nair already knew that he was going to grant Oscar Pistorius bail. The lawyers had presumed that Nair would want the weekend to prepare his judgment and Nel suggested they look at Monday morning to set a time for it to be delivered. But Nair assured them that it would be delivered that afternoon. The magistrate took the view that if he was going to fix bail, it would have been another 48 hours of unnecessary detention for the accused.
Nair returned to his office and took refuge in his vices of caffeine and nicotine as he prepared his ‘extemporary’ judgment. His assistants busied themselves around him, acting on requests for case law and varying authorities on matters such as exceptional circumstances and the weight of affidavits.
The Chief Magistrate had made copious handwritten notes while sitting on the bench, which he handed over to them to type during the tea and lunch breaks, and they helped him slot these various pieces of paper and case law into the correct order. The result was that there was no comprehensive typed-up judgment that went from paragraph one to the end, but rather that Nair would compose the wording of his ruling as he went along.
Long, fat, black cables slithered across the carpeted floor of the courtroom between laptops, discarded bags, crouching reporters and the other detritus of four days of bail application. The judgment would be transmitted live by all the major international news outlets and technicians were making sure everything worked. Magistrate Nair had agreed that the audio of the judgment could be broadcast, but live visuals would not be allowed. Space in the stuffy room was at a premium. An American doing a stand-up to camera told his audience: ‘You thought Superbowl seats were hard to fi
nd; try this courtroom!’
Across town, Oscar’s uncle Arnold had designated two of his sons-in-law to draw R1 million in cash to pay for bail if it were to be granted. In a country where it is not uncommon for citizens to be followed from a bank teller or a bank machine, held up at gunpoint and robbed, this was no easy feat. Several banks declined the request from the young men and they knew they would be under pressure to deliver. The world was watching and it was likely that judgment would only come through late in the afternoon when the cashier at the court could be closed for business.
Eventually, the men found a sympathetic bank manager and emerged with a bag full of banknotes. Although they were relieved that their mission had been accomplished, they still faced several hours of hanging on to the money, waiting for the magistrate to deliver his ruling. Much to their frustration – and to those watching blank screens on television while listening to the judgment – Nair took far longer than anticipated. The men drove round and round the court for hours as Nair spoke on and on.
Nair opened with a summary of the evidence put before him, including the affidavits presented by the defence and the testimony of Hilton Botha. He referred to vast case law around the purpose of bail and background on how it is governed by the South African legal system.
In ruling on the decision to view the case as a Schedule 5 or 6 offence, Nair said he was not as convinced then as he was before of the state’s contention that this was a case of premeditated murder.
‘At this point I have to look at the facts the state has to give me. I must rely on the bona fides of the senior counsel who is presenting the state’s case, and what he has in his possession at this point is nothing more than circumstantial evidence. But that does not prevent the matter falling under the category of Schedule 6 and I’m going to approach in that vein from here onwards,’ he said.
Nair had chosen to treat the offence as a Schedule 6 crime – this meant the bar would be far higher for Oscar to be granted bail. Nair explained that if the defence had succeeded in showing that the state had a weak case, then that would be considered an exceptional circumstance, which would permit release on bail.
Nair zoomed in on the performance of Hilton Botha on the stand. He found that the policeman had made several concessions and errors during his cross-examination and the magistrate made his way through a litany of these. Nair said that while there were many concessions made by Botha, he alone did not constitute the state’s case.
Nair appeared to be favouring the defence’s case, but then in an instant, he shifted position. He had found numerous improbabilities in Oscar’s version of events: ‘I have difficulty in appreciating why the accused did not ascertain the whereabouts of his girlfriend when he got out of bed. I have difficulty in also coming to terms with the fact that the accused did not seek to verify who exactly was in the toilet when he could have asked. I also have difficulty in appreciating why the deceased would not have screamed back from the toilet. I have difficulty understanding why the deceased and the accused would not of like mind in those circumstances have escaped through the bedroom door than venture into the toilet. I have a problem also, as to why the accused would further venture into danger knowing full well that the intruder was in the toilet, leaving himself open to being attacked even before he shot.’
Nair said these improbabilities needed to be explored and would probably only be determined if the accused gave evidence under oath and submitted himself to cross-examination. He stated that it was on these points that the defence had failed to show that the state did indeed have a weak case – at least to the point that it could constitute an exceptional circumstance to their benefit.
Despite all this, he found that the state had been unable to show that it had such a watertight case that it would compel the accused to attempt to flee his trial.
‘The issue before me is whether this accused, being who he is, and with the assets he has in the country, would possibly seek to duck and dive all over the world when, even by the state’s own concession, he may at the worst case scenario face culpable homicide. I cannot find that it has been established that the accused is a flight risk.’
The magistrate spoke for over two hours. During this time, international networks had been displaying images of black screens while carrying the audio of Nair’s ruling. Reporters tweeted every minute detail of colour and atmosphere from inside the room in order to portray some picture to accompany the audio.
The tension was tangible as Nair crept ever so slowly towards finality. Some journalists had two typed-out versions of tweets ready to copy and paste into their profiles and hit ‘send’. Oscar’s cousins circled the block for the umpteenth time with his bail money.
After a long pause, Nair continued: ‘I have come to the conclusion that the accused has made a case to be released on bail.’
A shout of ‘Yes!’ boomed out from the public gallery as celebrity businessman and self-proclaimed ‘friend’ Kenny Kunene punched the air. Smiles rushed over the faces of the Pistorius family, while Oscar dropped his head in relief.
Nel quickly rose. ‘As the court pleases,’ he said, before moving onto discussions on the bail conditions.
Nair said he was grateful for the time counsel had taken to discuss the terms of bail, but made it clear that the decisions surrounding bail would be up to the court.
‘Bail is fixed at an amount of one million rand,’ he announced.
Nair went on to list a slew of travel and movement restrictions, and also imposed the condition of a correctional officer who would be able to monitor Oscar at any time of the day.
Usually, in matters of this nature, the prosecution and defence would agree on the conditions and the amount at which bail would be set. One of the two parties would write up an order for the court to approve. This had happened in this case and the state and Oscar’s lawyers were satisfied with the agreed terms and conditions. However, Nair surprised both sides when he dismissed their agreement and took it upon himself to impose stringent, little-heard-of conditions that would be roundly dismissed by an appeal judge a month later.
After a week in jail, the Blade Runner would be released from custody. The bag men made their way into the court building in a rush to pay the cash bond before officials knocked off for the weekend. And eventually a silver Land Rover was allowed into the court precinct through the tunnel that leads to the holding cell entrance.
The Sophie de Bruyn driveway was jammed with a pack of camera operators, some on motorbikes ready to give chase as the vehicle made its way towards Waterkloof. The 4-metre-high brown gates opened as the 4x4 approached it. The vehicle passed through as lenses pressed up against the glass windows. As photographers hastily downloaded their images showing the international superstar seated in the middle of the back seat of the car, the vehicle sped away.
Oscar was free, for now.
Magistrate Nair drove out the court complex through the phalanx of video cameras just as dusk was beginning to set late on the Friday afternoon. As he made his way down Schoeman Street out of the city centre, he felt a great sense of relief that the weight of the week and the case had been lifted. He had spent most of the preceding nights awake, working through his notes on the application. The magistrate had always believed that the easiest mistake a presiding officer can make is to not review the arguments put before him before returning to court the following day. He was exhausted.
But his relief was short-lived. That Sunday his family was struck by a tragedy of enormous magnitude. The bodies of his first cousin and her two sons were found at their Johannesburg home by her ex-husband. It was believed she had poisoned her children before taking her own life. At the end of a week so overwhelmingly dominated by death, Nair felt the desolation of the loss. This wasn’t a case to be assessed by stark facts and finite law, but rather to be mourned on a human level. A reminder of the true value of life and loss.
Meet the Magistrate
Magistrate Desmond Nair loves the law. He speaks with gr
eat passion and conviction of the peculiarities and nuances of legal proceedings, more so when he’s delving into his favoured field of bail. It is for this reason that he agreed to a rare interview about a matter that he has presided over. It is highly unusual in the South African legal system for a magistrate or judge to sit down with a journalist to discuss a case that has come before them. It’s February 2014 and the country is gearing up for Oscar Pistorius’s trial to get underway. Technically, Nair is allowed to speak about the case because he has disposed of the matter. It has been moved from the Magistrate’s Court to the High Court and a trial judge has been appointed.
Nair was central to the Olympian’s initial court proceedings as it was his voice that was carried live on global news networks while delivering his judgment in the bail application. While he downplays the so-called fame he achieved, it is no secret in Pretoria’s legal circles that Nair has a tendency for pageantry and would have enjoyed the show of the event playing out on the world’s stage.
Nair began his career as a magistrate in the small town of Dundee in KwaZulu-Natal on South Africa’s eastern flank. He had grown up in the province – he was born in Dannhauser near Newcastle and studied at the University of Durban-Westville (now a campus of the University of KwaZulu-Natal) for his BA Law and LLB. He prosecuted in Dundee for two years before taking up a post on the bench. In 1995 he was appointed as a magistrate in Johannesburg before spending time in the Specialised Commercial Crimes Court (SCCC) in Pretoria. He is now the Chief Magistrate in Pretoria.
As a boy, his was a disciplined home and while he can’t profess to having been a victim of apartheid or having been heavily involved in the struggle for liberation, he was certainly aware of the principles of justice and equality. While at school, young Desmond discovered an ability to debate and speak publicly. ‘The teachers at school saw the potential when it came to public speaking and then I would be debating all the time. I was chosen to represent the school at what was known as the Jan Hofmeyr Speech Contest, and that was with all the schools, across the colour line, in Dundee. I spoke about justice and fairness and equity. I think that is where some of the teachers realised, you know what? This guy is a talker.’