by Mandy Wiener
Botha: The statement we have says that the lights were on in the house when [Oscar] said the lights were off.
Roux: Before or after the shooting? You said it in evidence, after the shooting.
Botha: There was shots heard, [the neighbour] went out, he looked, he saw the lights were on.
Roux: Yes, after the shots he saw that the lights were on.
Nel quickly bounced to his feet and complained that Roux was interrupting his witness. Roux apologised but immediately went on to gain even more ground against the state. He confirmed that the witness claimed to have heard as many as eight shots – two to three shots in two volleys – yet Botha agreed that only four shots had been fired. Roux also undermined the claim by a neighbour who alleged to have heard arguing for an hour before the shooting. He confirmed that the woman could not say for sure that she had heard Reeva’s voice and could not be certain that the talking had come from the home of the accused. Roux asked the policeman to explain how far away the neighbours lived from Oscar’s house. It was at this point that Botha’s evidence was reduced to a farce.
‘Six hundred metres,’ proposed Botha. Some in the gallery gasped in disbelief, realising the impossibility of this.
‘Silence!’ barked Nair, settling the courtroom.
Oldwadge was shaking his head as Roux moved in for the next line of questioning. Why had Botha not taken steps to find out Oscar’s cellphone number? Why, when the defence had been so willing to comply and assist the police with their investigation, didn’t he ask the accused or his brother for any outstanding cellphones?
Botha was floundering.
Roux moved to discredit his evidence around the testosterone that had caused such a stir a short time earlier. He asked Botha for the exact name of the substance he had found in the bedroom. The officer couldn’t say. Botha conceded that he never took a picture of it or noted down the name in his pocket book.
‘It’s a herbal remedy,’ said Roux, explaining that it was actually Testocompasutium co-enzyme. ‘He can use it and used it before and many athletes use it, it’s not a steroid and it’s not a banned substance. Have you taken any steps to establish that?’ Botha had not. He accused the investigating officer of failing to verify information, choosing instead to introduce untested evidence to the court.
Roux asked whether Botha agreed that if a person went to the bathroom at 3am, their bladder would be empty. Would that be consistent with going to the toilet?
Botha agreed. The postmortem on Reeva showed that her bladder was empty, which Roux said was consistent with the version that she went to the bathroom to relieve herself. Botha further conceded that, according to Oscar’s version, had Reeva gone to the toilet, he would have heard noises emanating from the bathroom. The advocate added that the autopsy showed that Reeva had sustained no defensive wounds or signs of an assault.
The defence advocate zeroed in on phone calls made to and from Oscar’s phone in the moments after the shooting. Why hadn’t Botha phoned Netcare to confirm whether the accused had made an emergency call to the ambulance service? Why would Oscar have been crying on the phone when speaking to a security guard? Could that possibly have been part of the premeditated plan, to purposefully not switch off the phone and then cry? All of this was leading to Roux’s argument that Botha took the approach to ‘discard anything that could be consistent with a defence and only to focus on any possible thing that could be inconsistent’. Roux wanted to know from the cop if he could find any evidence inconsistent with Oscar’s version of events. Botha could not.
It was 1pm when Nair adjourned for lunch.
Oscar’s bail hearing was proving to be a master class in cross-examination and Botha was struggling. He used the 30-minute lunch break to compose himself and, when he returned, Roux asked the policeman whether he still stood by what he had said when led through his evidence. Botha gave an assurance that he did.
Roux then put it to him that at the house on the morning of the shooting Botha had told several of Oscar’s relatives, as well as Oldwadge, that he felt bail should not be opposed. The officer admitted that he had said this. Roux then asked about the .38 Special ammunition found in the safe. Botha said it had been wrongfully handed over to Oldwadge, but the next day when he requested it back, it was returned. Botha again conceded that no attempt was made to establish who the rightful owner of the ammunition was. The advocate placed it on record that the bullets belonged to Oscar’s father Henke and he was storing them for him.
Then Roux revealed another explosive piece of information. The defence’s forensic expert had found a spent bullet projectile inside the toilet bowl but, astonishingly, it had been missed by police forensics teams. The advocate called into question Botha’s testimony about the trajectory as well as the distance of the shots fired, as ballistic and forensic analysis had yet to be completed. Botha also acknowledged that he had no facts or evidence to show that Oscar had attached his prostheses before the shooting.
The lawyer then explained that, usually, Oscar would sleep on the right-hand side of the bed but on the night of the shooting, he had slept on the left as he was struggling with a painful shoulder. Once again, Botha could not dispute this.
The advocate skilfully worked through each of the claims made by the investigating officer and countered them with his own. Finally, to close off his questioning, Roux asked Botha whether he had entered the house on the morning of the shooting with protective covering on his shoes.
Roux: When access was given to the ballistic person acting on behalf of the applicant you were in the house without protective shoes, yes or no?
Botha: It happened, yes.
Roux: Yes. It should not happen that way, you agree?
Botha: I agree.
Roux: Because it compromised the scene in all fairness. I’m not talking about deliberate actions Mr Botha, factual.
Botha: Yes, it was not deliberate but there was no more feet covers left.
By making this admission, the experienced investigator opened the door for the defence to claim that the crime scene had been contaminated and that evidence found on the scene could have been compromised and could thus not be relied upon. This is a classic defence strategy and Roux would be looking for any oversight made by officers on the scene. Any error on the part of forensic experts would be fodder to cast doubt down the line. The admission that protective bootees were not worn by the main investigating officer was a gift for Roux. Anyone with any knowledge of criminal trials and police work would have let out a deep sigh and shaken their heads at the concession. Had the police bungled the crime scene? It was a narrative all too common in South Africa where public confidence in the cops is doubtful at best.
With that question mark hanging, Roux concluded his cross-examination. Botha had collapsed spectacularly. But still some within the prosecuting team put on a brave face, downplaying the importance of Botha’s admission, stating they didn’t think this was a problem as they had achieved their goal with the bail application anyway. By going for a Schedule 6 premeditation charge, they had forced Oscar and his legal team to put a version on record – a move that would repeatedly come back to haunt them.
Advocate Nel was quickly back on his feet and set about trying to regain ground lost to Roux. He questioned why a ‘vulnerable’ person would have rushed towards the danger in the bathroom. He also clarified whether Botha believed that Oscar’s version could be true. Nel also sought clarity on just how far the neighbours who had given statements were from the crime scene. Botha reconsidered this potentially embarrassing testimony, stating that it was more likely 300 metres, rather than 600, as he initially testified.
Before Botha was released from the stand, Magistrate Nair had a set of his own questions. He asked the captain about his prior dealings with Oscar and his investigations into previous violent incidents involving the accused. Botha recalled the occasion when Oscar was arrested for assault following an altercation with a woman at his home. He was referring to the Cassidy Tayl
or-Memmory incident, for which Botha was the investigating officer. Nair wanted to know why the matter hadn’t been explored during the questioning and Nel told the court that the matter was subsequently withdrawn and was the subject of a civil claim.
‘The accused before court is an international athlete, he’s a Paralympic athlete, he uses prosthesis on both limbs. I’m sure that we would all agree that his face is widely recognisable internationally. Do you subjectively believe that he would take the option, being who he is, using prostheses to get around, familiar as he is, to flee South Africa if he were granted bail?’ asked Nair, gesturing to Botha. The witness insisted he believed Oscar could flee.
Nair pushed the issue. ‘Do you think it probable that a person who has won Olympic Gold would want to forsake his career whilst he may have the option to prove his innocence in a court of law?’ he questioned, doubting Botha’s sincerity.
‘Your Worship, I only say it’s possible. It’s possible. Lifetime imprisonment is not a joke. I know everything he does, he’s a great sportsman, but anything in that direction is possible. I’ve heard about people fleeing the country for five years’ sentence, but that’s all I can say. It’s possible.’
At 2:40pm, a defeated Hilton Botha stepped off the witness stand. He had been through the mill and his evidence was riddled with holes. His reputation was on the line. Little did he know that worse was still to come.
From Investigating Officer to Accused
An email dropped into Eyewitness News reporter Alex Eliseev’s inbox. It was from journalist and author Laurie A Claase. From his Sandton office, Eliseev had been following Hilton Botha’s evidence to the court in Pretoria throughout the morning and could tell how the scene would play out. He had covered enough criminal trials in his time as a court reporter to know.
‘Is the investigating officer in the Pistorius case the same Hilton Botha that is out on bail for allegedly shooting at a minibus taxi carrying passengers on the R568 road between KwaMhlanga and Ekangala? The minibus taxi was apparently riddled with bullet holes.’ Claase had seen an article from The New Age newspaper that detailed how Botha and two other warrant officers from the Boschkop police station were arrested in 2011 after they allegedly shot at a minibus taxi carrying seven passengers, while they were drunk, on duty and in a police vehicle. The three officers were charged with seven counts of attempted murder, possession of firearms under the influence of alcohol and malicious damage to property. They were out on bail of R2 000 each. Charges had been provisionally withdrawn but the case was referred to the Director of Public Prosecutions who took the decision to reinstate the charges in early February 2013, less than two weeks before Reeva Steenkamp was killed.
Eliseev spent hours working the phones trying to get confirmation from police spokespeople, prosecutors and court officials. It was only late that night that he received the phone call he was waiting for. Confirmation.
The following morning, as the prosecution and the defence were preparing to present closing argument in the bail application, the country woke to an Eyewitness News exclusive that would rock the bail application. While newspaper headlines slammed Botha’s collapse on the stand the previous day, there was now fresh fodder for him to worry about.
‘When the Hilton Botha story broke, we had not yet had a full taste of the global appetite for this case,’ explained Eliseev. ‘But news that the lead detective was facing his own criminal charges, which he denied, detonated a news bomb.
‘International organisations immediately jumped to cover the twist, and giants like the BBC used Skype to get the latest from our newsroom. Throughout the day, reaction poured in, debate raged about the impact this would have on the case and what it said about the police service. Within hours, a briefing was called by police commissioner Riah Phiyega and Botha was pulled off the case.’
Members of the prosecuting team were driving to court when they heard Eliseev’s report on the radio. It was the first they had heard about the charges. Before long, their phones began to light up as reporters from other news organisations looked to confirm the story and get a comment. They had nothing to say – they knew nothing about the case.
While they were taken by surprise, the state’s team did have its suspicions about the sudden re-emergence of the case against Botha. The timing was too coincidental. But how would this development affect the state’s bid to prevent bail? It would have to be raised by either one of the legal teams for it to have any impact. As court resumed for the day at 11am, the pressing issue was whether or not it would come up.
Shortly after Magistrate Nair entered the courtroom, prosecutor Gerrie Nel told the court that there were three issues he wanted to address before proceedings started.
The first concerned an unidentified woman – known only as ‘Annamarie’ – who wanted to bring an application and requested that she be allowed to address the court. Both Nel and defence advocate Barry Roux told Nair that they didn’t think the court should entertain the matter.
It would emerge that the woman was previously married to the runner’s orthopaedic surgeon, Dr Gerald Versfeld. She was concerned about Oscar’s state of mind and wanted him to be examined by a psychiatrist for 60 days. Magistrate Nair dismissed the application, but did invite her to launch an application in the High Court down the road. The woman said she would do just that before storming out of court. It was not the last time Annamarie would make an appearance in the matter.
Nel then placed it on the record that the prosecution team had only learnt the previous day that investigating officer Hilton Botha was facing seven counts of attempted murder. It was apparent that Nel could not ignore the morning’s developments in the media. Nair was concerned that his plans for the day had been thwarted, and ordered that Botha appear before him. Court adjourned while Botha was tracked down to make an appearance in the courtroom.
Speculation was rife that the magistrate wanted to question Botha on the pending case against him and why he had not disclosed it to Nel and his team. After about 45 minutes, proceedings resumed with Botha once again in the dock.
Nair posed questions around the previous arrest of the accused, the Cassidy Taylor-Memmory incident and the argument involving Marc Batchelor. He also wanted to know whether the officer had obtained detailed billing records of the phones seized at the scene. Botha said he was trying to obtain such records.
After only a few minutes on the stand, Botha was excused. Nair had not asked about his pending attempted murder case. It was never even mentioned.
Nel then moved on to the third item he needed to address before Roux could start delivering his closing argument. He explained that Botha had told him about an article in the Sarie magazine in which Pistorius apparently disclosed that he had property in Italy.
Nel then read the article in Afrikaans to the court, and provided a translation: ‘I spend about four months in a year in South Africa. The past two years I had a house in Gamona, Italy, and I spend four months in a year there. My house there is between the mountains and it’s really quiet and tranquil.’
Roux assured the court that his client had no property abroad.
With the table cleared, Roux began to deliver his closing argument. He immediately dealt with perhaps the most serious potential criticism of his case – that Oscar had not given what is referred to as viva voce evidence. He had chosen to testify by an affidavit rather than take the witness stand. Roux, however, argued that the weight of the evidence should not be discounted, because the state did not dispute the version given by the accused.
Roux then hit straight at the integrity and reliability of Botha.
‘The investigating officer in his evidence further admitted that the contents of the supporting affidavits dealing with a loving relationship between Reeva and the applicant, thereby negating any positive motive to kill Reeva, are consistent with his investigations relevant to the relationship.’
Roux said the evidence submitted by the state supported his client’s version that he
did not commit a planned or premeditated murder, and requested that the court not find that the matter was a Schedule 6 offence. ‘The poor quality of the evidence of the investigating officer Botha further exposed an endeavour on the part of the state to avoid disastrous shortcomings in the state’s case,’ he said.
He then dealt with the individual allegations levelled by the prosecution team, disputing Botha’s testimony point by point, and concluded with: ‘We say Your Worship, and we say it with great deference, that Botha’s evidence can be aptly summarised as extremely poor and patently designed to bolster the state’s case as the contentions, submissions and grounds for opposition at the close of the state’s case equalled a monumental collapse. There was just nothing and he did nothing.
‘He is well known, he is a professional, he’s an international athlete, he’s an icon, he represents so many things. Is there any, any acceptable, reasonable possibility that a person disclosing his defence comprehensively, sitting here in court, waiting for the police to come to his house, that that person will not stand his trial? Common sense will dictate that it borders on close as it can be on impossibility,’ he said.
It was the turn of the prosecution. Gerrie Nel went straight to the heart of the law. Had the accused shown that there were exceptional circumstances, in terms of Schedule 6 in the Criminal Procedure Act, that in the interest of justice he should be released on bail?
‘I have not heard an argument saying that this in itself is an exceptional circumstance. I think what the argument is, is the fact that the state doesn’t have a strong case, or that because it’s not a murder it’s an exceptional circumstance. Or, “I’m Oscar Pistorius. I am a world-renowned athlete.” That in itself is not special. It cannot be, not in a court,’ contended Nel, his submission animated and laced with contempt.
