by Mandy Wiener
Oldwadge is no stranger to the Pistorius family and represented the Olympian’s brother Carl during his own trial in the Vanderbijlpark Magistrate’s Court, where he was charged after an accident in 2008 that led to the death of a female motorcyclist. Blood tests conducted by the police proved that he was not under the influence of alcohol at the time, while the court found that the motorcyclist was riding at excessive speed when she collided with the back of Carl’s vehicle. Carl was acquitted of culpable homicide in May 2013.
It would later emerge that in the hours following the Valentine’s Day shooting, there had been a mad scramble to secure legal representation for Oscar.
Early that Thursday morning, high-profile criminal attorney Ian Small-Smith received calls from both the sportsman’s father and his agent, asking him to defend Oscar. Small-Smith’s reputation precedes him and he would have been the first choice for many an accused finding themselves on the wrong side of the law. Although he’s now largely retired, Small-Smith and his firm BDK, earned their reputation by successfully representing, amongst others, underworld figures, bad guys and dubious characters. He negotiated the sensational plea bargain deals for the three self-confessed hit men who killed mining tycoon Brett Kebble in an apparent assisted suicide in September 2005. In a curious set of circumstances, he also represented prosecutor Gerrie Nel when he was arrested.
Small-Smith selects the few cases he still takes on very carefully and, in any event, was too busy to rush to the police station to assist that morning. Instead, he offered to send a colleague from BDK to handle the case that day and he would then take it over when his time freed up. He also called top senior counsel Mike Hellens and asked him to be on brief for the matter.
Other attempts were also being made to secure the country’s best counsel for Oscar. A call was put through to high-profile criminal defence attorney Ian Levitt who has acted in several publicised cases, asking him to act but he was overseas at the time. Another call went to Robbie Kanarek, who had successfully represented Glenn Agliotti in the Kebble case. Both attempts were made by friends close to Oscar.
Senior defence counsel Laurance Hodes, who had been briefed by Kanarek as Agliotti’s advocate, was also lobbied to take the case and bail Oscar out. His success in getting Agliotti acquitted had received a great deal of media coverage and it was believed he could do the same for the runner.
It was rumoured that Oldwadge’s mandate had been terminated – but that proved incorrect and he remained on brief.
Carl Pistorius had a history with Oldwadge and put his trust in him and Oldwadge was on the scene of the shooting in the early hours of 14 February. It was he who took the brief to Barry Roux. Surprisingly, the decision was also made to use Brian Webber – an attorney from the firm Ramsay Webber, who managed Oscar’s commercial concerns – rather than an experienced criminal attorney. Having only acted in one criminal matter before, Webber had little experience in the dirty game of strategy and cunning associated with murder charges and plea bargain deals.
Roux was working at his chambers in Sandton on that Thursday when Oldwadge phoned, asking him to assist with Oscar’s bail application. Roux was told that bail would not be opposed and didn’t think much of the matter. In fact, he hadn’t heard any of the media coverage of the breaking news that morning because he had driven to the Planet Fitness gym in Sandton from his home in Kempton Park just after 5am – before the story broke – and had been at his office at the Village Chambers across the road from the gym since then. As a result, Roux was oblivious to the storm raging beyond his office walls, which are adorned with colourful caricature cars, wedding photographs and legal journals.
At one point during the day, Roux noticed a man he recognised as the clerk for the State Attorney arriving at his chambers to serve papers for the case. He only remembered the clerk’s brief visit because of the extremely colourful shirts the man favoured. Roux left his office after 11pm that night, still unaware of the media storm swirling around his new client’s case.
It was for this reason that Roux was flummoxed when he arrived at the Boschkop police station to consult with Oscar on the morning of the bail application. He had driven through to Pretoria with Oldwadge early in the morning and had anticipated that there might be a few media vehicles outside but instead was met by a bombardment of cameras, microphones and satellite trucks. At the courthouse, the scene was amplified and Roux battled to make his way through the hordes, but fortunately, the foreign correspondents in Pretoria weren’t familiar with him and he managed to slip through the crowd. Realising the massive public interest in the case, Roux thought, Hell, I better speak to Gerrie, and quickly met with the prosecutor whom he had come to know well over the years.
Now both men were ready to proceed.
While reporters found their spots in the courtroom, photographers were still jostling for position around the dock, the activity prompting a court official to order that every photographer and camera operator vacate the courtroom so that an accreditation process could resume. Officials also wanted to lay down the law as to when pictures could be taken of the accused.
The media hype that had gathered momentum since the shooting more than 24 hours earlier was encroaching on the courtroom. A member of the state’s team, whose identity we have kept confidential, said the attention puzzled them. ‘I think the fact that it was just the two of them, and everyone in the media speculating about the kind of relationship they had, something must have just happened in those hours before she died and what else could have happened between a young couple other than a fight? We agreed it was premeditated; it could never have been an accident, absolutely not.’
Away from the humid, claustrophobic courtroom, behind the wooden door and thick steel gate, Oscar was preparing for his first court appearance. With the clang of keys on metal grabbing the attention of the entire courtroom, several individuals emerged from the holding cells to speak to the athlete’s family. Bottles of water and food were handed over and returned to the cells. Proceedings were about to start.
Yvette van Schalkwyk has 24 years’ experience as a court-appointed social worker and probation officer. In February 2013, she was working for the Department of Social Development, where she had been since 1989 after acquiring her Bachelor of Social Work degree.
On the morning of 15 February, the court orderly at the Pretoria Magistrate’s Court approached Van Schalkwyk and asked her to assist with Oscar Pistorius. The court manager also put in a request for her to accompany him during the bail application. She didn’t know why the request was sent to her, but she assumed it was for emotional support and to monitor Oscar’s behaviour. At that stage, she knew nothing at all about the facts of the case.
So it was that the probation officer made her way to the holding cells in the court building where she found Oscar preparing for his court appearance, ‘heartbroken’ and ‘emotional’.
‘What I saw from the first time that I saw him, from the first second, was a man that 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. That was the theme throughout the whole period that I saw him. It was mainly about Reeva, the loss. He loved her,’ Van Schalkwyk would later recount to the trial court.
‘He cried 80 per cent of the time. He talked to me about what they planned for the future. His future with her, the loss that he never is going to see her again. Her family, her mother and father, what they are going through. That is what I saw, I saw a heartbroken man that [was] suffering emotionally.’
Despite his fragility and apparent emotional distress, Oscar knew he would have to attempt to pull himself together to walk out into the courtroom, into the dock, and face the world.
Magistrate Desmond Nair pulled on his black-and-red robe and made his way from his office to Court C. It had already been an eventful morning, with a delegation of foreign and local media clogging the passageway to his chambers as
they awaited clarity on whether or not they could photograph and film proceedings. Nair was beginning to realise the extent of the public interest in the case and, while he wasn’t daunted by the scale of the coverage, he knew he would have to be on top of his game that morning.
When he arrived at the courtroom, he took in the scene – the swollen public gallery, the benches crammed with reporters – before turning to a security officer to inform him that he would not enter until the situation was under control.
Nair then took a moment to compose himself, aware that he would have to be very careful of every decision he made. He reminded himself to be conscious of the accused person’s right to be respected and that he had to ensure that he received a fair bail hearing.
The courtroom finally settled and Nair adjusted his robe. He wanted to feel in command of his courtroom, but he didn’t want to give the impression to the media and the public that they were subservient to him. He had to affirm the perception that he was in control and that the world could be reassured that he would take charge.
11:28 AM Feb 15th
#OscarPistorius Chief Magistrate Desmond Nair enters. Nel calls for the accused. BB
Magistrate Desmond Nair swept into the courtroom in a dramatic manner, his robe billowing behind him, and took his seat. Nel, the prosecutor, rose as everyone else in the room sat down, and called for Oscar Pistorius to be brought in.
The once triumphant athlete who had graced the globe’s tracks, often with his hands in the air celebrating triumph, entered briskly with his hands by his side and his head down. He was dressed in a dark suit and tie. Oscar positioned himself towards the centre of the dock and stared at the floor. His face was contorting, overcome with emotion and anguish. It was clear he had not had much sleep.
‘The state versus Oscar Leonard Carl Pistorius,’ said Nel, as he called the case. Nair’s first task was to set the accused at ease:
Court: Alright let me then ask for some silence please. It is important people, the murmuring, the whispers, I want to hear a pin drop. Please give me your cooperation, it is important. Goeiemore Mnr Pistorius. Wees rustig – is u Afrikaanssprekend?
Accused: English Sir.
Court: English. Take it easy, be calm, you can take a seat, it’s fine.
Accused: Thank you Sir.
The prosecutor proceeded by telling Nair that the state would apply to have the matter postponed for seven days for further investigation.
Oscar, who was by this time seated in the dock, broke down in uncontrollable sobs, his body heaving as he gasped for air. His father, Henke, who was in the first row of benches, leaned forward and placed his left hand on his son’s back. It did little to calm the accused. Tears escaped Oscar’s fingers as his hands cupped his face, and his leg was bouncing. It was evident for all to see that this was a broken man.
Nair ruled that no live recording would be allowed, but pictures and filming could take place when the court was not in session – a standard ruling with which many local reporters are familiar. The magistrate did, however, order that the audio of the closing argument and judgment in the bail application could be broadcast.
Then the real business of the day began. As anticipated, the defence set about bringing an application for Oscar to be released on bail. However, there was a crease that had to be ironed out first – one that would result in the defence having to ask for a postponement before the formal bail application could be heard.
The state wanted the court to consider the case under the more serious crime of premeditated murder rather than of murder or culpable homicide and thus to deem it a Schedule 6 offence. Roux, on the other hand, wanted the matter dealt with in terms of Schedule 5, and asked that the bail application be postponed until the following Tuesday in order to allow the defence time to prepare.
Nair confirmed this stance in an exchange with the prosecutor.
‘The bail proceedings – is the state saying premeditated murder?’ asked Nair.
‘We will argue it was premeditated murder,’ said Nel.
According to South African law, a Schedule 6 offence is the most severe charge possible – a Schedule 5 is serious, but Schedule 6 is the same crime committed in a more aggravated manner. For example, if the Schedule 5 charge is murder, Schedule 6 would be the murder of a policeman, for example. If Schedule 5 is rape, Schedule 6 would be the rape of a minor or the rape of a mentally challenged individual. In other words, it is the same offence, but a more aggravated, severe form of the crime. In this particular instance, premeditated murder is listed in the Criminal Procedure Act as a Schedule 6 crime. The determination of which schedule the offence falls under has implications for bail and for sentencing. The standard required for an accused person to be granted bail is higher and the jail time the accused could face is extended. On a Schedule 6 offence, the accused would carry the onus to show that there are exceptional circumstances that should result in his being granted bail. He would have to satisfy the court – through giving evidence or by an affidavit – that exceptional circumstances exist that are in the interest of justice to permit his release. On a Schedule 5 offence, the accused only needs to show that it would be in the interest of justice to release him and he does not need to go the extra mile to show exceptional circumstances.
Roux also asked that Oscar be detained at the Brooklyn police station, and added that they had already obtained permission from the station commander Brigadier André Wiese.
Nair, however, wanted a valid reason why the accused would be held at a police station, considering that it is standard to be detained at the local prison. The magistrate wanted to ensure that Oscar did not receive any preferential treatment by virtue of the fact that he was a celebrity. The world was watching the case unfold, searching for any glitch in the system or preferential treatment for the celebrity accused.
‘We have obtained permission from the station commander. The reason being that we have limited time, we need to do after-hour consultations … We need to deal with information as we receive it and take it up with the accused and in the normal prison situation you cannot do that after hours,’ explained Roux, making the point that there were no visitation hours at Pretoria Central Prison. Nel supported the request.
12:09 PM Feb 15th
#OscarPistorius Nair postpones the matter until Tuesday. Oscar is to [be] kept at Brooklyn police station. BB
As court was adjourned, Oscar stood up to leave. He glanced back over his right shoulder at his sister and father. Henke stretched out his hand to touch his son, but as he did so, Oscar flinched, turned his back on his father and walked out of the dock, back into the holding cells.
Shortly after the proceedings, the Pistorius family issued a statement disputing the charge of murder ‘in the strongest terms’:
Firstly, and most importantly, all our thoughts today must be with the family and friends of Reeva Steenkamp.
Oscar Pistorius has appeared in court here in Pretoria this morning formally charged with the murder of Reeva Steenkamp. The alleged murder is disputed in the strongest terms. These are now live and active legal proceedings which must be allowed to take their course through the process of proper investigation by the police, evidence-gathering and through the local South African judicial system. In a short hearing lawyers representing the athlete asked for a postponement for a bail application until Tuesday next week to allow time for their own investigation into the circumstances of the tragedy, which was agreed by the Magistrate, who also agreed that Pistorius would be held in custody at a local police station. Oscar Pistorius has made history as an Olympic and Paralympic sportsman and has been an inspiration to others the world over. He has made it very clear that he would like to send his deepest sympathies to the family of Reeva. He would also like to express his thanks through us today for all the messages of support he has received – but as stated our thoughts and prayers today should be for Reeva and her family – regardless of the circumstances of this terrible, terrible tragedy. We will endeavour
to issue other statements as matters develop but in these circumstances I am sure you appreciate it is very difficult to answer any more specific questions. Thank you very much for your attention.
Oscar was transported to the Brooklyn police station where he would be held in a single cell for the weekend.
While the focus had been on the courtroom in Pretoria, Cecil Myers and his son were confronting the distressing task of identifying Reeva’s body at the mortuary. Cecil had taken on the responsibility on behalf of her parents in Port Elizabeth.
Reeva’s Last Photo Shoot
The thick white plastic body bag was wheeled into the autopsy room on a gurney. The red tag that clasped together two zips, making a tamper-proof seal, bore a printed ID number that corresponded with documents the police had provided to the mortuary services. The number identified the deceased. It was 24 hours after Oscar had killed Reeva and the model had now become, as indicated on the bag, ‘Property of Gauteng Forensic Pathology Service’.
The pathologist tasked with conducting the autopsy, Professor Gert Saayman, and nine other pathology and police officials waited in the autopsy room for Reeva to arrive.
The staff donned their plastic aprons and red-soled gumboots. With them were police blood spatter expert Ian van der Nest and his crime scene photographer colleague Bennie van Staden, in their dark-blue SAPS-issued overalls, chevron reflectors on the short sleeves, the type worn by crime scene investigators. Investigating officer Hilton Botha was amongst the delegation of SAPS officials in attendance. He and some of the other visitors to the unit were given baby-blue disposable bibs with matching bootees, which covered their well-polished black leather shoes. It was this type of disposable bootees that would be the cause of much consternation for Botha a few days later when he took the stand in Oscar’s bail application. All except Saayman wore the blue surgical gloves.
