Judge, victim, perpetrator: the lines of the case, the positions, could not be more clearly drawn. It was never in question that Oscar Pistorius had fired the four shots that killed Reeva Steenkamp. There was no judgement to be passed on whether he had committed the act. He had. Instead the question was, by Masipa’s own account, entirely ‘subjective’.16 What was going on inside the mind of Pistorius when he shot through the bathroom door? Everything hung on that question. Did he know he was shooting Reeva Steenkamp? Or did he believe it was an intruder, as he claimed more or less from the moment it happened and certainly to the friends and the police who were the first at the scene of the crime? And if we believe him, then did he know he might kill the person on the other side of the door and shoot anyway? In the words of Masipa, ‘Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not?’17 If he did, he would be guilty under South African law of the crime of dolus eventualis, which falls short of premeditation but which still counts as murder because the possibility of death is foreseen. Masipa’s dismissal of this possible charge against Pistorius was at the heart of the legal disputes around her verdict and formed the basis of the subsequent appeal.
This famous trial sits at the crux of violence in our times. First, because a woman was killed by a man in the privacy of a home. It is therefore a case of justice for women. Secondly, because it contains at its core questions of race and disability which have been the focus of so much discrimination and hatred. And finally, because the trial turned crucially on intent – by Masipa’s own account, on what can only be ‘subjective’ – forcing the law to enter the deepest, most intransigent and sometimes deadly recesses of the mind.
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A week before the killing of Reeva Steenkamp, I was in Cape Town, where I found myself reading A Bantu in My Bathroom, a book of essays by Eusebius McKaiser, a South African political and social theorist and radio talk-show host.18 He is known for being provocative. He likes to challenge South Africans to confront their darkest thoughts (his collection is subtitled: Debating Race, Sexuality and Other Uncomfortable South African Topics).19 In 2012, eighteen years after the end of apartheid, he was looking for a room to rent and lighted upon an advertisement from a woman willing to share her house but only, the ad stipulated, with a white person. On the phone, McKaiser got her almost to the point of sealing the deal before announcing that he was not white (she hung up when he suggested her choice might be racist). When he presented the question to the audience of his weekly radio programme, Politics and Morality on Talk Radio 702, two responses predominated. Either the listeners sided with the owner of the house (her property, her preference, no different from ‘non-smokers only need apply’); or else they made a more subtle, but disquieting, distinction: if the room were in premises in her backyard, the choice would be racist, but clearly she had the right to share her house with whomsoever she pleased.
‘Reasonable’ as the second preference might seem, he concedes – we will return to the category of the ‘reasonable’ later – for McKaiser, it is no less ‘morally odious’, no less ‘the product of our racist past’:
This viewpoint is an acknowledgement (indeed, an expression) of a deep racial angst. Why else would you be fine with Sipho [the name McKaiser assigns to the fictional black tenant] sleeping in the flat outside but heaven forbid that you should wake up in the morning and the first thing you see on your way to the bathroom is the heart attack-inducing spectacle of Sipho smiling at you, a horror that just might elicit a scream of apartheid proportions, ‘Help! There is a Bantu in my bathroom!’20
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‘Not one listener’, McKaiser comments, ‘grappled with how it is that eighteen years after our democratic journey […] racialism’s reach and endurance inside their homes and hearts dare not be spoken about.’ Not one avoided the cliché – indeed they rehearsed it to perfection – that your private life is private and it is up to you what you do in your own home (a cliché whose potentially lethal consequences were of course long ago dismantled by feminism). In failing to do so, they ‘betrayed dark secrets about themselves and our country’ and ‘a tragic lack of self-examination’. McKaiser is digging the dirt. He likes to tell things as they are. In another essay he refers to the Coloureds of Cape Town – he himself is a Coloured – as ‘the dirty little secret’ of the city (the term ‘Coloured’ is used to refer to South Africans of mixed European and Asian or African descent, mostly from the Western Cape). ‘Cape Town, you see,’ he elaborates, ‘treats coloured people like dirt.’ ‘The dirty secrets [‘dirty’ again] of both Jozi [Johannesburg] and Cape Town are a stain on both cities’ images, like mud on a kid’s new white pants.’21
It soon became clear that a strange, racially charged and legally confused distinction would be at the heart of the trial. If Pistorius wasn’t aware when he fired the shots from the bathroom that Steenkamp was in the toilet, but believed he was shooting an intruder, then the charge of premeditation would fall. There was no doubt that the second possibility was seen – or rather would be presented by advocate Barry Roux for the defence – as the lesser offence, and not just because of the category of ‘putative private defence’ (defending oneself against a presumed attacker, even if the presumption was wrong) which would present the shooting as the legitimate response to fear. In fact this would be one of a ‘plethora of defences’ put forward by Pistorius, to use Masipa’s telling phrase and to which I will return.22 What was largely unspoken, however, was that in the second case, we can be all but certain that the person killed in the bathroom would be – could only be – imagined as black. ‘As the judge will not have failed to register,’ writes South African journalist John Carlin, ‘if his story were true – and even if it were not – the faceless intruder of his imagination had to have had a black face, because the fact was that for white people crime mostly did have a black face.’23
Margie Orford was one of the few to draw out the racist implications. ‘It is’, she wrote in an article for South Africa’s Sunday Times, ‘the threatening body, nameless and faceless, of an armed and dangerous black intruder’ into what she calls ‘the contemporary version of the laager’, ‘nothing more than the reclaiming of the old white fear of the swart gevaar (black peril)’. For Orford, there is something profoundly amiss – morally for sure and perhaps legally – if this is Pistorius’s main defence. She continues: ‘If Pistorius was not shooting to kill the woman with whom he had just been sharing a bed, those four bullets indicate that there is still no middle ground. Because whoever Pistorius thought was behind that door, firing at such close range meant that when he finished there would be a body on that bathroom floor.’24 A Bantu in the bathroom. Or to elaborate McKaiser’s point: in the white racist imagination, the only Bantu permitted in a white bathroom is a Bantu who is dead. Whichever way you look at it, the killing of Reeva Steenkamp was either a sex or a race crime.
If Orford’s reasoning is correct, what this also means is that the charge of dolus eventualis – proceeding with a violent act reckless of whether ‘death ensued or not’ – should, from the outset, have been allowed to stand (Pistorius would be guilty of murder). In fact, Masipa’s dismissal of that charge hangs on a distinction she herself is not quite able to make: ‘How’, she asks in her judgement, ‘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.’ For me, the issue here is not that she chose to believe him – as she rightly points out in law, the contrary cannot be proved. Rather it is the slippage between intruder and Steenkamp that is the giveaway: it is indeed clear that he couldn’t have foreseen that he might kill Steenkamp if ‘he thought she was in the bedroom at the time.’ But how can that also apply to ‘the person behind the door’, whoever it was, given that he was shooting at
that door with a 9mm handgun?25 According to Masipa, however, if he did not know he was killing Steenkamp, then he is not guilty of murder. Never mind anyone else. The Bantu slips syntactically under the bathroom door.
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Eusebius McKaiser’s essay set me thinking about the trial – indeed about bathrooms – in the context of South Africa’s past. Under apartheid law, the rules for white private residences were explicit: servants’ quarters had to be across the yard, ‘mean little rooms with a sink and a toilet’, in the words of South African journalist Mark Gevisser in his 2014 memoir Lost and Found in Johannesburg. No shared walls between white master and black servant, above all no shared ablution facilities across racial lines, which suggests that, for apartheid, it is above all the races’ body fluids and matter that must not mix, especially if you bear in mind apartheid’s ban on cross-racial sexual intercourse, which is so much better known and which might in fact be easier, as in cleaner, to talk about. McKaiser’s fastidious respondents, who would make a white racist’s bathroom preferences no more than a matter of personal liking and etiquette, are therefore enacting a form of memory as buried as it is historically precise. The white world, Mark Gevisser writes, was defined ‘by what it had been walled against’.26 To illustrate the insane lengths to which this project could be taken, Gevisser gives the example of the ten-foot-high fence built by the apartheid authorities across the rocky promontory off the shore of Cape Town where gay men of different races would congregate in the 1960s. To make sure that Coloureds could not cross into the neighbourhood of white residences at Clifton where his family lived, they extended the fence twenty feet into the Atlantic Ocean. Like the famous and ill-fated king, apartheid believed it could control the waves (unlike Canute, who is simply humbled by his misadventure, apartheid would eventually drown).
There is a politics of water, there is a politics of shit. Remember Masipa and her co-journalists in their prison cells asked to clean out the toilets before appearing in court. In the black township of Alexandra, where there was no sewage system, residents had to leave their shit outside their doors every night for collection (the basis of a protest poem by Mongane Wally Serote – ‘What’s in This Black “Shit”?’). All the more remarkable, then, as Gevisser observes, were those who carried their anti-apartheid struggle not just into the privacy of their homes, but into the water, allowing bodies to swim, touch and mix against the brute, squeamish hand of the law. Bram Fischer’s pool on Beaumont Street was legendary for its parties of black and white men, women and children, photographed lovingly by Drum magazine in the 1960s, when Fischer was presenting the concluding arguments in the famous Treason Trial of 156 members of the ANC. Or the home offered by one of Gevisser’s acquaintances, Roger, with his black lover, for interracial gay men and boys, a house protected from the prying eyes of the law by soaring cypresses, where the bath was always full so you could wash off someone else’s bodily fluids if there was a raid. The Pistorius trial, writes Gevisser, ‘coursed through the electoral season like a foul river carrying the country’s legacies of fear and violence on its currents’.27 The analogy is eloquent. Like a foul river, bringing pestilence in its wake, the killing in the bathroom both enacted and drew to the surface of the national psyche its deepest racial fears. What, Orford asks, is this ‘irrational fear that has sunk deep into the psyche’? Or in the words of McKaiser, ‘mud on a kid’s new white pants’.
This is not of course unique to South Africa. Bodily racial insult is something at which regimes since the end of apartheid – regimes which might seem to be on the opposite end of the political scale – have excelled themselves. When President Obama was briefed on a 2015 CIA report on torture, he is recorded as expressing discomfort with the ‘image of a detainee, chained to the ceiling, clothed in a diaper, and forced to go to the bathroom on himself’.28 Commentators were quick to point out that it stretches belief that he didn’t in fact already know. The state owns the monopoly on violence and masters the arts of the body to perfection. It is adept at breaking down the body’s walls (waterboarding would then just be the most obvious such form of abuse). It is a common racist trope to see the black body – and most of the bodies at Guantánamo and Abu Ghraib were of course non-white – as always already stained. Blackness, Toni Morrison wrote in 1991, at the time of the Clarence Thomas/Anita Hill hearings, ‘is already a stain and therefore unstainable’. If Thomas was to ascend to the Supreme Court Bench, if the bench were to be stain-free, ‘this newest judge must be bleached, race-free.’ The state on the other hand is slick and unctuous, dedicated to the smooth running of its own machine: ‘To inaugurate any discovery of what happened’, Morrison observes, ‘is to be conscious of the smooth syrup-like and glistening oil poured daily to keep the machine of state from screeching too loudly or breaking down entirely as it turns the earth of its own rut, digging deeper and deeper into the foundation of private life, burying itself for invisibility, for protection, for secrecy.’29
Pistorius was surely not aware, at least not consciously, that, when he insisted the person he shot in the bathroom was an intruder, he was re-enacting one strand of his nation’s cruellest past. Some excuse, we might say. At the very least, even if this defence stands, which finally it didn’t, he can hardly be held to be innocent. ‘Because’, to repeat Margie Orford, ‘whoever Pistorius thought was behind that door, firing at such close range meant that when he finished there would be a body on that bathroom floor.’ Pistorius’s gun was loaded with Black Talon expanding bullets which mushroom on striking human tissue (removed from the market and then rebranded under the name Ranger). As Mandy Wiener and Barry Bateman point out in their book on the case, this is ‘killer ammunition designed to cause as much damage to the target as possible’.30
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So did Pistorius know that it was Steenkamp in the toilet? It is here that we move into the realm of speculation and dream, where the law hits against the buffer of what is at once screaming out for our attention and cannot be known. When I suggested to the writer Rachel Holmes that this was a case where knowing and not-knowing collide – we know he knew it was Steenkamp in the toilet, only of course we don’t, we can think we know but our knowing has its limits, our knowledge, we could say, is not flush with our desire – she suggested that the correct and far simpler distinction to be drawn in this case is between knowing and having no proof. Legally she is of course right, as Masipa dismissed the charge of premeditated murder on the grounds that his intention to kill Steenkamp had not been proved beyond reasonable doubt. But, whichever way you read it, it is clear that, in the words of Masipa, ‘there are a number of aspects in the case that do not make sense.’ She then proceeded to list questions which, she stated, will ‘unfortunately remain a matter for conjecture’.31 Why, when Pistorius heard the bathroom window opening, as he claimed, did he
not ascertain from the deceased […] whether she too had heard anything? Why did he not ascertain whether the deceased had heard him since he did not get a response from the deceased before making his way to the bathroom? Why did the deceased, in the toilet and only a few metres away from the accused, not communicate with the accused, or phone the police as requested by the accused?32
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‘It makes no sense’, Masipa observed, ‘to say she did not hear him scream “Get out”’, since ‘it was the accused[’s] version that he screamed on top of his voice.’ Why did the accused fire not one but four shots before he ran back to the bedroom to try, as he claimed, to find the deceased?33 To which we can add the questions of Gerrie Nel, leading for the prosecution, and those of the judge at the original bail hearing. Why would someone who slept with a firearm under his bed and was apparently fearful of crime fall asleep with a sliding door to the bedroom wide open? Although Pistorius stated he had been the victim of violence and burglaries, there was no police record of his ever opening a case where he was the victim of a crime.34 Why did he not see that Steenkamp was not in the bed at the time he unh
olstered his weapon? Why did he not ascertain the whereabouts of his girlfriend when he got out of bed? Why did he not verify who exactly was in the toilet? Why, in the circumstances of believing an intruder had entered the bathroom, would he not escape through the bedroom door rather than venturing down the corridor? And why, if he knew the intruder was in the toilet, would he further venture into danger, leaving himself open to attack before he shot?
None of these questions was ever fully answered (although Pistorius’s defence would work hard to take them down one by one). The police officer on the scene, Hilton Botha, made no bones of the fact that he disbelieved the intruder story. The story does not make sense – as Masipa conceded, while arguing that Pistorius’s confused, evasive and lying testimony was not in itself a proof of guilt, which is of course legally correct. Pistorius’s former girlfriend Samantha Taylor put it most simply: ‘It definitely didn’t make sense to me. I would … I don’t know, I find that kind of weird, I definitely wouldn’t close the door, especially if it’s not even connected to the bedroom. I don’t know why someone would lock the door, even if they are at their boyfriend’s house.’35 Her comments have all the additional force of high-risk empathy – she is willing to imagine herself where she might have ended up, that is, in Reeva Steenkamp’s place.
For anyone who reads this killing through the prism of domestic violence, and on behalf of the legions of women who have been its target, one question surely stands out from all the rest. Why did Steenkamp not speak or cry out, not from the bedroom if that is where she was, nor from the toilet? Why, the whole time the accused was screaming, even when he was in the bathroom, did she not utter a word? This is Pistorius in his final statement: ‘I got to the entrance of the bathroom, at the end of the passage, where I stopped screaming.’ ‘At this point I started screaming again for Reeva to phone the police.’ ‘I kept on screaming.’ ‘I shouted for Reeva … I kept on shouting for Reeva.’36 Why didn’t she answer or call out? A dead woman becomes a silent witness in the courtroom, voiceless now, voiceless then. Twice over, Pistorius silenced Reeva Steenkamp, turned her into a ghost.
On Violence and On Violence Against Women Page 23