by Mandy Wiener
It was this realisation that set Nair on the path to a law career. But still he chose to go to the bench rather than the more lucrative option of private practice. ‘I don’t think I was as much comfortable wanting to fight and take instructions to fight. I find myself more at ease being a judicial officer. Being an umpire. But I get involved in the matters as well. I don’t believe, like I’m told, that in civil matters it’s the parties who bring the matter to court and if they err or they don’t call a witness, you should be very careful before you jump in. I’m still very active as a judicial officer.’
The 45-year-old father of three was only 25 when he was first appointed as a magistrate. His head of office in Dundee had gone on leave over the December holidays in 1994 and he was picked as the stand-in. ‘I took to it immediately. I enjoyed it from day one and I found the interpretation, the application of the law, to be enjoyable. I was so dedicated,’ he says pointing at the shelves full of books lining his office walls. ‘Those law reports, behind you now, I would pick them up like a novel, just to read. And I would read them non-stop!’ he exclaims. He even has a photograph, taken by a colleague, of himself as a young magistrate pouring over volumes of reports.
Nair’s time on the bench at the SCCC and as Chief Magistrate in Pretoria prepared him well for the intensity of the world’s focus and the Oscar Pistorius case. At the SCCC, he became used to the calibre of argument, and of advocate, that feature in High Court trials. ‘It was there already that I was sentencing guys to 15 years, 10 years for white-collar crime, mostly, complicated fraud matters and most of the accused would employ senior counsel. I had already had the experience of the SCs before me, so I wasn’t really daunted by the quality of counsel that some of the accused persons have had representing them,’ he explains.
It was the drunk-driving case of Judge Nkola Motata that truly tested Nair and taught him about the intricacies of dealing with the scrutiny of a trial run through the media.
‘The matter involving Judge Motata was a lengthy one. It took us more than 18 months to finalise and I would say I cut my teeth there in dealing with matters of that magnitude. It was a full trial. Although it was a drunken-driving matter, we got involved in 19 interlocutory applications wherein I had to give judgments and, during the course of that trial, two or three times the matter landed up in the High Court,’ Nair reminisces. ‘One had to be very, very careful. You had to mete out justice. And you also had to deal with the fact that there would be this great public pressure to see whether he’s going to get off with a lighter sentence.’
But, Nair admits, nothing could really have sufficiently prepared him for the unprecedented level of interest that Oscar’s appearance drew. ‘You couldn’t compare the Pistorius matter to any other matter, including Judge Motata, simply because I had never experienced the surrounds of the courtroom with the international media. I remember on the first day, when the bail application started, there were about 40 or 50 people who were waiting outside here who wanted to speak with me before the matter started to see how we were going to work out the logistics,’ he says, referring to the media’s persistence in wanting to broadcast the appearance live. ‘I had to appoint a task team within this office to deal with the media so that I didn’t engage them and then, of course, I had to deal with the fact that when I got into the courtroom – even though I had made certain rulings in terms of law – you still found people breaching those rulings.’ Nair, of course, had to balance Oscar’s rights with the public interest in the case and the media’s desperation to get the story.
‘You want to appear to be firm, but polite at the same time … One must remember that our case law, when it comes to televising proceedings, also talks about the dangers of being drawn into this whole media frenzy and not focusing on your job because it does affect your concentration. If you’re new to it, you can get fazed by it.’
Nair was annoyed that his ruling about the accused being photographed or videoed while court was in session appeared to have been violated and a picture of the athlete in the dock was wired around the world, appearing on the front pages of newspapers. In that instance, the editor visited Nair in his chambers to provide an explanation and apologise. ‘I was very, very taken aback by the fact that I had made a ruling – and you don’t expect it. They put an explanation on the table in terms of how it happened. I think they all realised that you would not want to let the South African media be the cause of a banning order in terms of media in the courtroom. Rather let it be somebody else, but not the South African media houses. I saw a tremendous amount of respect for me, for the rulings I made. They were always very careful.’
Nair strokes his moustache as he casts his mind back to that day in February 2013, when he first realised that the world-famous Paralympic athlete and icon would be appearing before him in court as an accused. He was first told the news of Oscar’s arrest by the Acting Senior Magistrate. He was shocked. ‘As a person, shock, you know, because you’ve heard and read about him. But I had to remind myself from the first minute, you may just be presiding on the matter so you’re going to just have to focus yourself on the person as an accused person.’
The matter did indeed come before him and he had to steel himself before walking into Court C on that Friday, 15 February.
‘It was very daunting, because in as much as I had met many of the international media in this very office before we went to court that day, when I got into the courtroom and for a split second saw this crowd standing all around him, I had to ask the security personnel, “Look, I’m not going to enter until you clear them out.” The gallery was packed, so you’ve got to up your game. And it comes naturally, you know, because you realise now that it’s at another level. Not only am I being judged as a judicial officer, but the country’s criminal justice system is now being crystallised into one point of focus for the entire world. You’ve got to be very careful with everything you do, everything you say, how you say it.’
Nair, who regularly interrupted proceedings to enquire of Oscar whether he was all right, adds that he was also mindful of how that bombardment of media attention could overwhelm the accused. ‘I’m alive to the fact that it would have been an equally daunting experience for Mr Pistorius himself, like any accused person. I think there was a part of me that spared a thought for what it must feel like to have all those persons around you flashing cameras, and at one point I went so far as to say, even in my judgment, to surround a person as if you are seeing somebody who is an alien, it doesn’t run well with me. His rights as an accused person have to be respected. It doesn’t take away the fact that I could have ruled that he be kept in custody, that was not going to affect it. It was just to make sure that he got a fair bail hearing.’
The magistrate agrees that Oscar was among the more emotional accused ever to have appeared before him. ‘But it was not new to me. White-collar criminals just by virtue of the fact that they were accountants, they were doctors, they were lawyers, they were senior people in government and all of a sudden you are sitting there in a box, in the dock. But with Mr Pistorius, I agree, he was particularly emotional. It was a constant concern for me to make sure that he understood what was going on. It very often happens in criminal matters involving rape, robbery, murder where you find witnesses breaking down and it’s always been my habit if a person starts crying to spend another minute or second assessing whether they are in a position to continue or not. Humanity dictates that you do what is right and even though his counsel were saying, “It’s fine, continue,” for me it wasn’t their call ultimately to make.’
Nair adds that it was important for Oscar to be aware of what was going on during proceedings because he would have had to make critical decisions, such as whether or not to testify during the application. ‘It is very easy in that state of emotion to kind of not focus on anything that is being said and you, as the accused, are the one that must give your counsel instructions. I kept asking him, “Are you okay? Do you understand what is happening?” bec
ause it is for him to tell his counsel which way he wants this matter to go. The very decision to bring the bail application on affidavit rather than testifying is something that he would have been the only person to make that call in consultation with his advocates and assuming, for whatever reason, he said, “No, I want to take the stand now,” that bail application would maybe have continued for three weeks.’
Oscar took the decision to offer a version of events via an affidavit during his bail application and Nair found that he did meet the requirements of what was expected of him, despite choosing not to take the stand.
One of the praises of Nair’s handling of this case, and many others, is how careful he always is to ensure that laypeople understand the law. He shepherds the accused, complainants and witnesses through what media like to refer to as the ‘legalese’ and takes time to lay out the implications of any legislation. For many who were unfamiliar with the justice system in South Africa and were now studiously following the court proceedings, hungry for an understanding of what was going on, Nair’s careful explanations were welcomed. Nair realised early on that, in the interests of justice, he had to explain to the public what was going on.
Many followers, mostly those from outside the country, struggled to understand why so much evidence was being led at such an early stage when the trial had yet to start. Nair says this was not a peculiarity and it is often necessary for such a large amount of detail to come out during a bail application. ‘Unfortunately, the magistrate or judge presiding in a bail application is expected to watch a trailer of a movie in order to get a sense of what the full movie is going to be like. So you are asked to formulate a picture of the trial in your mind,’ he explains.
His judgment took over two hours to deliver because he spent a large portion of that time explaining to the rest of the world how the bail system works in South Africa. ‘It dawned on me that, on that level, with the amount of international interest, my judgment must explain not only to the South African public, but internationally, what our bail regime looks like, where’s it coming from and how it operates.’
He also doesn’t think he was at all rattled by the fact that his entire judgment was carried live on international networks such as CNN and Sky. ‘If you’re going to allow the thought of your being on international or national radio or TV to come to the fore, you are going to become conscious of it. You are going to watch what you say, how you say it and so on and so on forth. I think I was alive to the fact that this is beaming out, but I blocked it out. For me, at that point in time, I was with you guys [the media].’
During the bail application, global media interest was at a premium and while every development within the courtroom was amplified, one of the biggest news stories came when court was not in session. The explosive revelation about the charges against investigating officer Hilton Botha could well have derailed the bail application. The news came once Botha had finalised his testimony and there were expectations that Nair could recall him to the stand. Although the state did formally inform the court of the charges, the defence did not push the issue. And Nair did ask the policeman to come back to court and resume his testimony – but did not broach the subject of his own case with him, to the surprise of many. The magistrate has to tread carefully now about just how much he knew about the charges against Botha that morning and why he didn’t quiz him about the revelation.
‘No, I didn’t need to ask him at that point in time. I had the urge to make sure that I get a complete picture from him on every issue that I needed, but I had taken a conscious decision not to pay attention to the media during that period, so whatever was happening outside, if it came to my ears by mistake I just ignored it because it hadn’t been formally brought to my attention. If, on the other hand, the defence team took issue with that themselves, they would have opened the door for me to take issue with it. For me the case was about Mr Pistorius.’
Of course, it would have been nearly impossible for Nair to entirely ignore the media coverage of the global sports star’s court appearance. Newspaper posters stuck on poles lining the streets of the city displayed bold headlines and radio and TV news bulletins carried little else. Yet he insists he made every effort not to be influenced.
‘In the car I listen to my own type of music. I love Hindi music, especially the older ’60s, ’70s, ’80s and I hardly listen to the news in the car. When I got home during that period I would watch the cooking channel or BBC Lifestyle, which I love to watch, so one thing I knew I should not do and try my best to avoid unless I walked in and the thing was on, the kids were watching, I would probably walk out.’
He says the billboards on the streets were more difficult to avoid. ‘You can’t help but take notice of that, but what do you do? You look at it and just think, oh. And I must tell you, they are rather distracting, because in some instances they are talking about you. So you see it, you read it, you play it back in your head for a second or two, even later that day, but when you walk into the courtroom, you know that if you are going to pay any attention to that you will err.’
It is not unusual in South Africa for court proceedings to be tweeted live by journalists. There are few rules and little precedent regulating the Twitter coverage of trials and this was highlighted during the Pistorius case when the public’s appetite for news was met by reporters on the platform. Nair, like other presiding officers in courts in the country, had to navigate this new territory with little to guide him along the way.
‘I’ve heard my kids talk about Twitter, I’ve heard my staff talk about Twitter, but I didn’t, up to now, take time to go and meticulously read about it,’ he admits, but adds that he’s not worried about its impact on his work. ‘The nation can pretty much work out second for second what is happening in that courtroom, but it’s not interfering with me, it’s not interfering with counsel and you are allowing access to justice. The problem I have is what’s going out in terms of the accuracy because it’s in the third person.’
As a result of the subjective nature of the reporting on the platform, he would urge reporters to be more responsible when tweeting about his cases. Beyond the realm of the reporters, Nair’s conduct and decisions would have been open to the general Twittersphere for comment but he didn’t fuss about this. ‘My daughter would, from time to time, say to me, “Daddy, do you know what they are saying about you on Twitter?” and I replied, “Okay, just leave it.” And she would say, “I’m so angry with this person, I’m so angry with that person,” and I would say, “You know what, just forget about it.”’
Nair’s three children and his wife were all taken with the idea that he was involved in the case – like most South Africans, they quickly developed a fascination with the events playing out in his courtroom. ‘They were quite fascinated, each one in their own way. The twin boys were 11 and my daughter was 14, so they are at an age where they have heard about Mr Pistorius, they have seen him on TV, although their sport is cricket and mine is boxing. I didn’t take a serious interest in athletics, but for the kids it was, like, awesome! That’s the word they would use: “It’s awesome, Dad,” but I had to draw their attention to the fact that the pupils at school will obviously hear that I am dealing with the matter and we should be careful about it. For most of my matters, I work at home and my kids respect my privacy. You will never find them going through my stuff or going through the notes. They’re not at an age, in any event, where they would understand the legal jargon and the good thing about my wife is that she respects my work, she would never peer into an affidavit unless she said, “Can I take a look at that?” She has never known of the judgment I am about to give in any matter, ever. And she’s never prodded me at, like five o’clock in the morning, “What are you going to do? Have you decided what you are going to do?” I think I even heard her, at some point, say to me that her friends were enquiring from her – which is human nature – what’s going to be the outcome and she simply told them, “Just trust me guys, Des won’t talk about this.”�
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Nair is adamant that he was not influenced in any way, although he did seek out different viewpoints on contentious issues of law. ‘Not about whether he should get bail or not. About the law, yes. “What is your feeling about this? Do you think it was premeditated murder? What is your view on that?” I would even spend time with my wife Paddy explaining the difference between premeditated murder, dolus eventualis and dolus directus, legal terms that I learnt as a prosecutor, which I had to refresh.’
A year on from the frenzy of that week in February 2013, the magistrate has had time to reflect on his performance. Has he spent many hours in his office in the bowels of the court, neurotically dissecting every word of a ruling that was beamed around the globe?
‘With hindsight, you know, you always want to make it better, always. You know, when I read the judgment, which I do, sometimes I think to myself, “Maybe I should have done it differently.” I’ll come to the same conclusion, but the way in which I structured the judgment should have been different. I’ve criticised myself, not on the ruling, but on the structure of the judgment and I could have structured it differently, slightly, here and there. But I think at that time, at that moment, you do things at that time.’
He uses tennis and boxing analogies to better explain his point. ‘I mean, Maria Sharapova lost now, before the quarter-final and if you go back and probably ask her, “Why? How?” and she will say to you, “I should not have done this,” or, “I should not have done that,” but the fact of the matter is even Gerrie Coetzee would like another shot at the world title. But what he did wrong in 1981 with Mike Weaver only he knows!’
