One Tragic Night

by Mandy Wiener

  Accused: At that point, My Lady I was standing in the bathroom with my firearm pointed at the door. My eyes were going between the open window and the door and I heard a noise from inside the toilet.

  Nel: What noise?

  Accused: It sounded like wood, My Lady, like wood moving.

  Nel: Wood moving?

  Accused: That is correct, My Lady.

  Nel: Is that all you heard? Wood moving?

  Accused: I thought I heard the door opening, My Lady.

  […]

  Nel: Is that what you heard? Is that a wood moving sound?

  Accused: Well, it is a wood abrasion noise or sounded … I did not … M’Lady, I heard a noise come from the toilet which I perceived as being the door opening. So …

  Nel: Sir, I am not … I am not interested in your perceptions now or what you perceived. I am interested in what you heard, please. What did you hear?

  Accused: I guess in retrospect, M’Lady, I probably heard the magazine rack moving.

  The problem with Oscar’s version here was that the magazine rack was found next to the toilet against the back wall. According to Mangena’s reconstruction of what took place behind the door, Reeva fell on top of the magazine rack – it did not move before the shots. Both the defence experts – Dixon and Wolmarans – confirmed the location of the rack by highlighting a clean area where there was no blood present caused by one of the legs of the rack pressing against the floor around which blood had pooled. In other words, if you lifted the rack, there would be no blood where its foot had rested on the floor, indicating that it had not been moved prior to the gunshots and the victim bleeding.

  Pointing at a photograph of the scene, Oscar said he found Reeva where the magazine rack was in the picture, indicating that that rack itself was to the far right of the cubicle, positioned close to the wall, when he broke through the door.

  While Oscar could merely explain what he experienced and how he perceived certain events on the morning of the shooting, it was going to be up to his defence experts to explain his thinking and what led him to that point when he pulled the trigger. It was the introduction of evidence related to a possible psychiatric disorder that took the proceedings in an unexpected new direction.

  Generalised Anxiety Disorder (GAD)

  State social worker Yvette van Schalkwyk was never part of the defence strategy. But when she came knocking on their door on the eve of election day, they resolved to put her in the witness box a mere two days later. This took many observers by surprise. Van Schalkwyk in fact asked to testify after she had heard negative things said about Oscar in the media and she wanted to correct the impression. At the time, there had been speculation in the press that he had gone for acting lessons – a claim slammed by his PR agent. Roux explained he called the witness because the state questioned the sincerity of the accused.

  Van Schalkwyk, a social worker and probation officer, was the state employee assigned by the Magistrate’s Court to monitor Oscar’s behaviour during his bail application and offer him emotional support. She told the court she was ‘upset’ by what she had read about the accused and wanted to tell her version of what she had observed a year earlier in the days after the shooting. ‘What upset me was the fact that they said he had acting training, he just put on a show, started crying when it was needed. That upset me,’ she said.

  The social worker described the accused as she observed him in the holding cells at the Pretoria Magistrate’s Court as a man who was ‘heartbroken about the loss. He cried; he was in mourning; he suffered emotionally. He was very sorry about the loss, especially for her parents. The suffering they are going through.’

  The court appointed Van Schalkwyk as Oscar’s probation officer when he was released and ordered her to compile weekly reports on his well-being, more specifically on his mental health and emotional state. She compiled four such reports until the bail conditions were successfully appealed.

  Van Schalkwyk reported that Oscar was undergoing intensive therapy with psychologist Lore Hartzenberg to help him deal with trauma and anxiety. She concluded: ‘The accused is very heartbroken and he still has a lot of emotions and stress. But this are all in context with the incident that happened. His emotional stress are dealt with by the psychologist.’

  By week four she reported that Oscar was slowly improving and coping with the situation, and meeting regularly with Hartzenberg. But, by Van Schalkwyk’s own admission, her reliability as a witness in this case was called into question.

  Van Schalkwyk: M’Lady, I just want to explain … when I saw an accused, I usually saw accused for a probation officers report, for a pre-sentence report or a pre-trial report. Never directly after arrest.

  Nel: So you have never seen any other accused in a family murder matter just after arrest?

  Van Schalkwyk: That is correct, M’Lady.

  Nel: So the answer to the question is, you have not seen any adult accused after arrest, shortly after arrest.

  Van Schalkwyk: That is correct, M’Lady.

  Nel: You have seen one and that is accused before court.

  Van Schalkwyk: That is correct, M’Lady.

  Nel argued that the extreme emotional state the social worker observed was consistent with someone who had been traumatised by the killing and then being arrested and hauled off to court. She did not have the experience to dispute the prosecutor’s claim. Nel focused on what the accused did not say in those holding cells – he did not say, ‘I’m sorry, I did it.’

  Professor Merryll Vorster sports short brown hair with hints of grey and sharp facial features. As a registered forensic psychiatrist, she has worked for decades at state mental institutions and at the time of the trial was associate professor in the Department of Psychiatry at the University of the Witwatersrand. She is no stranger to the courtroom and is regularly called to testify in cases through her private medico-legal practice. She is known to most in the legal fraternity, who all have a ‘Merryll story’ to offer. Vorster’s evidence and diagnosis of Oscar set the trial in an unexpected direction that had not been anticipated by the defence.

  When, at the request of the defence, Vorster evaluated Oscar in May 2014, she consulted not only the report of psychologist Richard Holmes dated 18 February 2014, but also the Milpark Hospital medical records following the 2009 boat accident and the affidavits from his friend Justin Divaris and Divaris’s girlfriend Samantha Greyvenstein, as well as that of Oscar’s cousin Graham Binge. Vorster also interviewed Oscar’s brother Carl, sister Aimee, his manager Peet van Zyl and coach Ampie Louw, as well as his maternal aunt – his mother’s sister – Dianne Binge.

  Vorster said the amputation of Oscar’s limbs when he was just 11 months old, at a pre-language stage of his life, would have been interpreted by the child as traumatic assault – because he was too young to communicate, he would not have been able to comprehend and understand the type of procedure and the associated pain.

  The accused was then fitted with prosthetic limbs and was encouraged to live a normal life and was supported by his family, but Vorster said this meant Oscar was never able to allow himself to be seen as disabled and was encouraged to see himself as normal.

  Oscar’s mother Sheila became his primary attachment figure, but when Oscar was six she divorced Oscar’s father Henke.

  Vorster stated that growing up and going through school Oscar appeared to lead a relatively normal life; although he was teased on occasion, he was able to stand up for himself or alternatively had Carl there to defend him. At the age of 15, the death of Oscar’s mother led to an increase in his anxiety levels, and what he described as a very stressful period in his life.

  The psychiatrist found that from about a year later the young athlete’s career took off, until the age of 21 when he cut ties with his father Henke. That divide was still clearly evident during the bail application and later during the trial – Henke remained absent from court right until closing arguments.

  Vorster said Oscar started spendin
g significant amounts of time overseas, but became anxious about reports of the high levels of crime back home in South Africa, so he bought a firearm for his own protection.

  She believed that Oscar had developed an anxiety disorder, which he worked hard to try to control by managing external factors such as his environment and being well-prepared for events. ‘In a way, his strict training regime and his diet helped him to alleviate his levels of anxiety. On the other hand, as he became more and more exposed to being famous and having media attention, he would have had to prepare more and more to not embarrass himself in any way and in that way, to manage his levels of anxiety,’ she said.

  Vorster said Oscar exhibited many features of anxiety and there was a clear history of anxiety in his mother, brother and sister. She said that the encouragement to behave as a normal child while he was growing up had a significant detrimental impact on his development:

  He became increasingly unwilling to reveal his stumps publicly and this gradually extended to family members and friends. He would keep on his prostheses during the day, only removing them at night when he went to bed. He gradually developed a poor self image, feelings of inadequacy about his amputations.

  By concealing his disability, this rendered him less able to access the emotional support he required to manage his vulnerability and self-esteem issues.

  Vorster explained how living this life only compounded the problem. Day after day, it became more difficult to keep his anxiety under control, and as the levels of anxiety increased so would his insecurities about his personal safety. She said this led Oscar to improve security at his house as reports of break-ins and other crime heightened his fear; he was hyper-vigilant, suffered sleep disturbances and would wake up believing there was someone in the house. Oscar constantly looked around, scanning his surroundings for any potential threat, with Vorster describing him as a distrustful and guarded person.

  Vorster stated that during their consultation Oscar was asked to take off his prosthetic legs and, while he was embarrassed to do so, he complied. She said his ability to walk and balance on his stumps was poor and that his physical vulnerability was immediately apparent. These physical limitations fed into Oscar’s mental well-being. ‘His physical vulnerability makes him more anxious. His anxiety makes him want to conceal his physical vulnerability,’ she said.

  It was at this stage that crucial evidence was introduced – and no one saw it coming. Vorster said she had diagnosed the accused with a Generalised Anxiety Disorder (GAD), adding that he had a long history of this disorder and it had probably commenced with the amputation of his limbs at the age of 11 months.

  These factors were all operating at the time of the offence under discussion and would have been compounded by Mr Pistorius’s psychical vulnerability and the additional pressure of perceiving his environment as hostile and unsafe.

  When exposed to a threat, Mr Pistorius is more likely to respond with a fight response rather than a flight response as his psychical capacity for flight is limited.

  An aspect of Oscar’s defence was taking shape. Roux was trying to explain why his client behaved the way he did on Valentine’s morning – Oscar does not possess a flight response because his physical limitations make that impossible. Vorster said the court should consider Oscar’s incapacity as an amputee together with his GAD condition, which would have been present at the time of the shooting.

  What exactly did Vorster mean when she requested the court to take into account Oscar’s diagnosis of GAD on the morning in question? Did this affect his ability to distinguish between right and wrong or his ability to act in accordance with his understanding of right and wrong? Vorster said she merely suggested that the court takes into account these factors when considering the conduct of the accused on the morning.

  Nel, however, had appeared in a previous case in which a similar set of circumstances around a finding of GAD had taken place. This meant he was able to think on his feet and react, and he promptly referred the professor to section 78 of the Criminal Procedure Act that deals with ‘mental illness or mental defect and criminal responsibility’. With her vast court experience, Vorster knew where Nel was headed.

  ‘Do you say it is possible that he had diminished responsibility at the time?’ the prosecutor asked.

  Vorster was reluctant to give a straight answer; instead she skirted the simple yes or no response Nel was seeking. ‘I am not saying that this constitutes a mental illness,’ she said.

  Then what was she saying? The accused doesn’t suffer from a mental illness and his ability to determine right from wrong was not affected. So why was Vorster called, Nel wanted to establish.

  She couldn’t have it both ways.

  The prosecutor called the defence’s bluff, arguing that if Vorster said there was just the mere possibility that Oscar suffered from diminished capacity, then in terms of section 78 he should be referred for mental observation. The witness was reluctant to commit, saying instead that that would be a decision for the court to make.

  The court would indeed have to make a decision, as Nel launched an application to have Oscar sent for 30-day psychiatric evaluation.

  Nel based his application on his interpretation of the section 78(2) of the Criminal Procedure Act:

  If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or mental defect, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.

  Section 79, the next section in the Act, to which Nel refers, sets the guidelines and basis for a panel to be established to conduct a psychiatric evaluation of an accused. By this time Roux and the attorneys were flipping through their thick legal textbooks and case law to establish whether Nel’s argument had merit. It was the defence team’s decision to introduce mental health as a possible defence, so Nel felt that the law then compelled him to act on it.

  It was an interesting strategy by both sides. Nel was shutting down a possible defence for Oscar and closing a potential hole for an appeal down the line. But the other side of the coin was an acquittal based on mental incapacity. Not to mention that Roux ran the very high risk of his client becoming a ‘state patient’ for the rest of his life, committed to a medical facility without the option of ever leaving.

  Nel argued that the court was compelled to refer the accused to the Weskoppies Psychiatric Hospital for observation. Oscar remarked to a journalist during a tea break that Nel’s application was ‘a joke’. The possibility of Oscar being an ‘outpatient’ and only undergoing evaluation during the day was mooted but commentators thought it an unlikely scenario because it was so unusual.

  Tension filled the gallery the next morning as Oscar and his family waited for Masipa to deliver her ruling. Proceedings still hadn’t started by the usual 9:30am as counsel was called to the judge’s chambers. Roux emerged several minutes later and walked directly to Oscar who was standing in the dock. He appeared resigned; with terse lips he was shaking his head. Arnold shuffled past the tightly packed bodies in the gallery to join the conversation. When he returned to his spot, he released a long sigh before speaking to his wife Lois and Aimee. Like a game of broken telephone, whispered conversations made their way down the row of Pistorius supporters.

  Despite Roux’s rigorous attempt to oppose the application, Judge Masipa agreed with the state’s interpretation of the law and that the court had no discretion in this regard. The judge said the basis for the application was the evidence of the defence’s own witness.

  ‘The accused may not have raised the issue that he was not criminally responsible at the time of the incident in so many words, but evidence led on his behalf clearly raises the issue and therefo
re cannot be ignored,’ said Masipa. ‘Not only that, but the allegations have been properly substantiated by the evidence of Dr Vorster.’

  Masipa chose the unlikely ‘outpatient’ option for Oscar and ordered that he report to Weskoppies every weekday, starting 26 May, for no more than 30 days. A panel of three psychiatrists – doctors Leon Fine, Herman Pretorius and Carla Kotze – and a psychologist – Jonathan Scholtz – was given the task of establishing whether Oscar ‘by reason of mental illness or mental defect, was at the time of the commission of the offence, criminally responsible for the offences charged, whether he was capable of appreciating the wrongfulness of his act, or of acting in accordance with an appreciation of the wrongfulness of his act’.

  The ‘Two Oscars’

  Reporters, camera operators and outside broadcast vans lined the road leading to the entrance of Weskoppies Psychiatric Hospital. Established in 1892, and originally called the Krankzinnigengesticht te Pretoria (Pretoria Lunatic Asylum), its main Edwardian-styled building is tucked away behind a forest of pine trees along a ridge west of Pretoria. The state facility has hosted some of the country’s most notorious criminals, including the so-called ‘Modimolle Monster’ Johan Kotze – convicted of orchestrating the gang rape of his ex-wife and murdering her son – and convicted child molester ‘Advocate Barbie’ Cezanne Visser. Police officers were called in to assist with security at the entrance to the hospital. Oscar arrived shortly before 9am in a black compact sedan, far less conspicuous than the usual SUV in which he arrived at court. He would spend the next four weeks reporting to the facility as and when required, where he was put through dozens of tests and interviewed numerous times by the panel of experts.