by Mandy Wiener
The extended Pistorius family filed in: all the uncles, Theo, Leo and Arnold, with their spouses, as well as several cousins. Oscar’s father Henke arrived and shook the hands of the male relatives and greeted the women with a hug and a kiss. He and Arnold did not appear to acknowledge one another, a testament to the strained relationship Henke has with his family. However, Aimee did give her father a warm embrace and seemed emotional to see him arrive. Oscar did greet his dad, but only later during a break. When Henke thrust his arms around his son, Oscar didn’t budge, cementing his hands to the wooden dock as he was awkwardly hugged.
The one notable absence was Oscar’s brother Carl. He had been seriously injured in a car accident in Limpopo just days before. He had spent several days in the Intensive Care Unit of a Pretoria hospital with multiple broken bones and was unable to attend.
By the time Oscar took his seat in the dock of the courtroom, in a dark suit and dark-framed eyeglasses, both the defence and the prosecution were set to present closing arguments. The timeframe had been set down for two days. Each side had handed in its ‘Heads of Argument’, written summaries of their cases, but this was an opportunity for the senior counsel of each party to argue before Judge Masipa and the two assessors. It was inevitable that Gerrie Nel and Barry Roux would play to the public, that their arguments would be theatrical, that the legal proceedings had the potential to deteriorate into a pageant. In closing argument, often the man with the best oratory ability will appear more convincing, particularly in this arena, which was the first South African trial to be broadcast live.
Nel went first and he opened by setting the scene with a quote from his favourite defence advocate, the fictional Horace Rumpole from the television series Rumpole of the Bailey: ‘With all due respect to Your Ladyship, I was thinking that a criminal trial is a very blunt implement for digging out the truth.’
He explained himself: ‘Now, M’Lady, and it was evident in this matter. It was not the matter that the truth was just there, it was a case that we had to work on, worked on days, worked on hard, both the state and the defence, but we are confident, M’Lady, that, although blunt, it always leads to getting to the truth and, I think, in this matter it also did.’
As a prosecutor, Nel is an expert in ‘packaging’ his arguments, relying on analogies and metaphors for ease of understanding complex matters. He used three such devices as he made his case: the analogy of an athlete dropping the ‘baton of truth’; a destroyed ‘mosaic’; and a ‘baker’s dozen’ of inconsistencies in Oscar’s version.
He opened with the first of these analogies: ‘The State will expose how he stumbled over his lies and deceit and in the process dropped the baton and he was unable to complete the race. It is the State’s case that the accused was a deceitful witness and that the court should have no difficulty in rejecting his core version of events.’
Nel immediately went on the offensive, attacking Oscar’s credibility as a witness, accusing him of being incapable of taking responsibility for any wrongdoing and playing the role of the ‘victim’ of circumstance. He argued that the accused was a deceitful witness who had tailored his evidence and used ‘wellcalculated and rehearsed emotional outbursts to deflect the attention and avoid him having to answer questions’.
Nel posed a burning question. Just what is Oscar’s defence? ‘Is it putative self-defence? Is it an act of sane automatism? Did he have criminal capacity to act? Or was it all an accident (as in Tashas restaurant) where he had the gun in his hand and it purportedly discharged itself?’
The state believed an objective evaluation of the facts showed that there had been no real threat to the accused. ‘The perceived imminent attack was nothing more (on his version) than a sound. The door was locked. There was no evidence that there was even an attempt to open the door from within the toilet cubicle.’ This meant he could not argue he was acting in self-defence.
‘It is our argument that, on his own version, the accused acted so unreasonably that his version could never be accepted as reasonably possibly true,’ said Nel.
He argued that even if the court did accept Oscar’s version, he should still be convicted of murder. ‘He cannot escape a finding that he acted with dolus eventualis by arming himself and, whilst approaching the “danger”, foresaw the possibility that he may shoot and kill someone but reconciled himself with this possibility by walking into the bathroom and then without objective or subjective cause, fired four shots into a small toilet cubicle whilst anticipating that someone was in the cubicle and likely to be killed.’
Nel moved to negate the defence that Oscar was suffering from anxiety and that he felt vulnerable. ‘There will be argument about the anxiety of the accused, that he was an anxious person. Now what is interesting, M’Lady, is that the anxiety did not present itself when they were stopped by the Metro Police officers on the way back from the Vaal, not at all, quite the opposite. He was not anxious, he challenged the Metro Police officers, he engaged with the police officer about what he was doing with his gun, not an anxious person being worried and scared of the police being there and finding my firearm. We say, M’Lady, that the anxious nature of what the accused would want the court to believe is anxiety-on-call, when I need to be anxious, when I need somebody to accept my anxiety, I have it on call, anxiety-on-call,’ said Nel somewhat disparagingly.
Nel floated the concept of a ‘mosaic of proof’, arguing that the objective facts create ‘a rather gruesome mosaic’. ‘We will argue that the accused destroyed his mosaic with his unconvincing contradictory evidence. Each separate piece of circumstantial evidence, viewed in isolation, may be argued to only weigh as much as a feather but all the feathers together on the scale will convincingly balance the scale in favour of the State.’
It was an approach Nel had taken before in a case in which he could rely on only circumstantial evidence – the case against former police chief Jackie Selebi: the belief that it is the weight of all the feathers, all of the individual pieces of evidence, that will outweigh the defence’s case.
Nel also made another subtle reference to Selebi, who he once referred to as the worst witness to ever testify in a court. Nel suggested Oscar was not far behind the former police chief.
‘It is our respectful submission that the accused was an appalling witness. We cannot argue that he was the worst witness ever, that honour belongs to someone else. The accused was, however, demonstrably one of the worst witnesses ever encountered. The accused did not present as someone striving to give a truthful version, but rather as someone who was tailoring a version and was more concerned with the implications of his answers than the truth thereof.’
In the case of Selebi, Nel had used the device of ‘Selebi’s Five Big Lies’. Now, he created ‘Oscar’s Baker’s Dozen’ exposing the major discrepancies, contradictions and in the state’s view, deceitfulness exposed during Oscar’s evidence.
Number 1 – Nel challenged Oscar’s answers to questions posed to him around the infamous ‘zombie stopper’ video. Initially Oscar testified that he had no idea what it was but was then shown a recording of himself using the phrase.
Number 2 – Nel claimed Oscar realised he needed to be inside his bedroom to rely on a sound he had heard in the bathroom, but he ‘forgot his version under oath in the bail application’. Nel also accused Oscar of resorting to blaming his counsel for his contradictory versions.
Number 3 – Nel argued Oscar had to create time to allow Reeva to get to the toilet and because he had to be inside the room to hear the sound in the bathroom, he created a version that included a second fan – but had only mentioned one fan in his bail application statement. Nel argued that this ‘destroyed some of the pieces of the mosaic as the accused had to adapt his version because there was no space for a further electrical plug in the extension cord’.
Number 4 – Nel stated that ‘with the mosaic pieces falling from the canvas’, Oscar ‘turned his version of events into a farce’, claiming he apparently moved the fans
to where the duvet was. Nel had argued that the placement of the objects showed that Oscar’s version could not be true, but the defence had argued the scene was tampered with. ‘He also had to create a version that would make it possible for him to go onto the balcony to shout for help. The snowball effect of a lie becomes quite evident.’
Number 5 – Nel believed the tailoring of evidence by Oscar had a ‘domino effect’ and if ‘one piece of the mosaic is moved the rest have to as well to keep the picture intact’. He argued that with the fans having been moved, Oscar had to create an untrue version about the duvet.
Number 6 – Nel claimed Oscar had to explain why the police would have moved the smaller fan into the corner of the room and then thrown the duvet onto the floor, followed by a pair of Reeva’s jeans. All of this would have had to have been done before the photographs were taken at 05:58 without knowing Oscar’s version.
Number 7 – Oscar’s failure to deal with the duvet on the floor ‘led to the accused having to adapt his version to place the duvet on the bed which in turn led to a contradiction (Number 8) of when he last saw the deceased’.
Number 8 – During the bail application, Oscar claimed he never saw Reeva get up as his head was in his hands and it was pitch black and she was behind him. Nel argued that Oscar then gave several contradictory versions about the duvet, including ‘Reeva had the duvet over the bottom part of her legs’ and ‘I could see the duvet going up, that is all I could make was a silhouette … I presume that it was her legs under it …’
Number 9 – The state argued Oscar’s version about him wanting to cover the blue LED light emitting from the amplifier is so improbable it cannot be reasonably possibly true. ‘He had to ensure that he remained with his back to the bed in an attempt to explain why he did not see the deceased leave the bed.’
Number 10 – Nel believed the time-and-position adaptation created a further domino effect more devastating to Oscar’s version than he could have foreseen. ‘It must be impossible on his version for the denim, which he had in his hands, to land on top of the duvet if the duvet had not already been on the floor.’
Number 11 – Nel insisted it would be ‘inconceivable’ that Oscar would have failed to mention in the bail application that he spoke to Reeva when he got up. He believed this must be a tailored version to ‘avoid a negative inference from the improbable version that he woke up and never ascertained where the deceased was’.
Number 12 – On the state’s version, Oscar’s mosaic continued to fall apart when he tried to explain his warning to Reeva. ‘At first the accused allegedly whispered to Reeva, however, this changed to – “I did not whisper at her, M’Lady. I said it in a soft manner.” He realised that “whisper” would imply closeness as part of the normal meaning of the word.’
Number 13 – Nel criticised Oscar’s unconvincing evidence about the activation and deactivation of his house alarm. ‘Viewed in the light of all the other inconsistencies and contradictions, it becomes significant with the real question being why the accused would even have bothered to deactivate the alarm.’ Nel contended that if Oscar was so traumatised from previous events, he would have triggered the alarm. He pointed to a cellphone charger downstairs as evidence that Oscar had gone downstairs to charge his phone.
In short, through the illustration of the baker’s dozen, the state was arguing that Oscar’s version would have to be rejected because it simply did not make sense.
‘M’Lady it was just so many lies in such a short period that the snowball effect became so evident. He tells one lie and he has to continuously build on it, build on it and it just pick up so ridiculously,’ exclaimed Nel. ‘We will argue that the court reject his version that he heard a sound which he perceived to be an intruder. We argue that there was no moving of fans. The fan was in the doorway, the curtains open and the deceased fled to the toilet with her cellphone. Without the moving of the fans and the closing of the curtains the accused’s version is just not reasonably possibly true but in fact false.’
Nel believed that all of this showed Oscar was guilty of murder. ‘If the accused’s elaborate false version is rejected, the court will have no option but to accept that the accused knew the deceased was in the toilet and fired four shots with dolus directus to kill her.’
To even consider Oscar’s version, Nel argued the court would have to accept that:
• Reeva decided to relieve herself and did so without saying a word to the accused.
• For no apparent reason, she opened the bathroom window.
• She took her cellphone with her to the bathroom.
• She decided not to switch on any of the lights.
• She did not utter a word whilst the accused was screaming, not even when he was in the bathroom.
• The deceased got up from the toilet to close and lock the door.
• The deceased dressed herself before she was shot.
• The deceased did not hide as a result of all the screaming but stood upright facing the danger.
Nel’s delivery was theatrical, his voice low but elevating occasionally as he emphasised a point, picking his foot up on the chair next to him and swinging his glasses around. He laughed at times, as he trailed off sentences, emphasising the incredulity of the claims made by Oscar or his witnesses. But he was sure to maintain decorum, punctuating each remark with the words ‘with the utmost respect’.
His baker’s dozen delivered, Nel focused on the reason why Oscar shot, the screams, the neighbours and the gastric content of Reeva’s stomach. He also asked the questions that had been asked in every hairdressing salon and around ever water cooler and dinner table in the country: why did Reeva take her cellphone to the toilet with her and why didn’t she scream when Oscar screamed at her to call the police?
The state anticipated the defence would argue that emphasis should be placed on Professor Derman’s testimony about the so-called ‘third startle’. This would explain Oscar’s reflex action to shoot when he heard what Derman and Oscar suggested was the magazine rack scraping across the floor. In an attempt to discredit Derman’s evidence about Oscar’s impulse to shoot on hearing the sound of wood moving, Nel argued that Derman was biased and unconvincing. On the state’s version there was no startle to trigger the shooting.
‘We have four well-grouped shots by the accused. Somebody that is in control not somebody that is not in control. He wants us … he wants the court to believe that he was … acted automatically, did not know what he was doing. When he heard the sound it was exactly when it started and he just fired. He did not, M’Lady. There is four shots, grouped shots and the angle would indicate, M’Lady, that it is all aimed at the toilet bowl,’ argued Nel. He was also heavily critical of defence forensic experts Wolmarans and Dixon, suggesting that they were in his experience the worst expert witnesses to testify in a trial.
For Nel, it was crucial to substantiate the state’s claim that Oscar and Reeva had had an argument. With no direct evidence, he had to rely on separate pieces of circumstantial evidence. This included the testimony of pathologist Gert Saayman that Reeva had eaten at around 1am, that Estelle van der Merwe heard what she thought was an argument, that Mrs Stipp testified that the bathroom light was on and that the WhatsApp messages on Reeva’s phone revealed a turbulent relationship.
Nel also anticipated the defence would spend significant time trying to cast doubt on the neighbours called as witnesses for the state. This was undeniably one of the prosecution’s strongest cards – the claims that the neighbours heard the blood-curdling screams of a woman and then gunshots.
He emphasised their reliability as credible witnesses. ‘None of them have ever met the accused or the deceased. Furthermore it can safely be argued that other than where these witnesses are each other’s spouses, the others have never met each other. They have made their statements independently and the corroboration is exceptional. Not only do they corroborate each other’s versions but the objective facts and circumstantial evidence co
rroborates detailed aspects of their evidence. They all remain steadfast and even explained why they didn’t believe it was a man they heard screaming.’
Nel acknowledged that their evidence was not perfect but argued that ‘imperfections and possible imperfections are expected of people who witnessed an event without an idea that they were later going to be cross-examined about minute detail and it clearly indicates the absence of a conspiracy to prejudice the accused’.
He insisted that if the court found that the bathroom light was on immediately after or even before the shots were fired, as Mrs Stipp claimed under oath, ‘then the accused’s version will crash dramatically’. This would show that Oscar and Reeva were awake and likely arguing.
He believed the fact that Reeva must have eaten between 01:00 and 03:17, coupled with the evidence of Estelle van der Merwe that she heard an argument, had to be viewed together. ‘It cannot be a mere coincidence that on the same morning that the accused shot and killed the deceased, that Van der Merwe heard a woman’s voice as though engaged in an argument and that this argument ended with the gunshots.
‘This is a good example of something that seems insignificant if seen in isolation but becomes significant if evaluated with the other evidence. The trial court has to step back and evaluate the mosaic as a whole.’
On the WhatsApp messages extracted from Reeva’s phone, Nel argued that they provided the court with insight into the relationship. Bizarrely, he used a quote from an interview clinical psychologist Leonard Carr had done on a radio station. Carr had responded to Roux’s suggestion that 90 per cent of the messages were of a loving nature – the psychologist said this equates with arguing that only 10 per cent of your body has cancer.
Judge Masipa, who was largely quiet during proceedings, observing and absorbing, spoke up at this point:
Court: But Mr Nel.