One Tragic Night

by Mandy Wiener

  Other similar cases have been reported in the media over the past few years and if Oscar’s version of events is indeed true, he is not the first person to suffer such a tragedy.

  In Oscar’s case, assuming the state does have a case strong enough to prove murder, he would have to raise a believable defence of ‘putative private defence’.

  ‘What putative self-defence says is that, simply put, the law will not punish you if you made a genuine mistake of verily believing that you were entitled to a defence excluding unlawfulness, but actually in reality you were not entitled to that defence because in reality there was no threat to your life. But if all the surrounding circumstances of the killing are looked at, it is clear that your mistake is one that is reasonable, then you lack “intention” and you cannot be convicted of murder, but also your actions were not negligent because your apprehension of imminent danger and your actions to ward it off were reasonable in those circumstances,’ explains Maseko.

  In 2010, Goodness Mchunu and two accomplices were charged with murder, attempted murder and arson after she attempted to set fire to her boyfriend’s shack in revenge for him having a wandering eye. Goodness, a resident of Lidgetton in KwaZulu-Natal, set fire to the shack but her boyfriend wasn’t there at the time. She fled when she realised she had ‘burnt the wrong people’, those inside the residence at the time of the incident. One man was killed and another escaped with burn wounds. Neither of these was her boyfriend – the target of the arson attack arrived home to find his shack in flames.

  In this case, it was her aim and object to kill her boyfriend so there is direct intention (dolus directus) regarding the murder charge. There is indirect intention on the arson charge (dolus indirectus) – her aim and object was to kill her boyfriend, but by setting fire to his dwelling she foresaw the destruction of his dwelling by fire as a substantially certain outcome of pursuing her aim and object to kill.

  ‘This case is also an example of the rule of law “error in objecto” (mistaken identity), which is the state’s alternative argument in the Pistorius matter. That is, a mistake as to the identity of the occupant of the shack will not be a defence to a murder charge – when she set fire to the shack she intended to kill the person inside the shack, though she was mistaken as to the identity of the person,’ explains Phelps. ‘The major difference between this case and Pistorius’s is the putative defence. He is not arguing mistaken identity but mistaken belief in self-defence. This is what the judge will need to reconcile and the parties will need to argue.’

  The problem Oscar faced with putative private defence is that the court has to be convinced that he genuinely believed his life, and or that of Reeva, was in danger. That is why the state dedicated a great deal of time leading evidence to show that it was unlikely and improbable that Oscar could have genuinely believed that it was an intruder behind the door.

  ‘As to the question of whether, on Oscar’s own version, he believed it was an intruder behind the door and he fired shots because he believed his and Reeva’s lives were in danger, assuming that it was an intruder behind the door, would it have been reasonable for him to fire four shots at someone he didn’t know was armed, that is, he hadn’t assessed the extent of the danger (if any) to himself or Reeva. Is that a reasonable reaction? Can it be said that the action taken to ward off the attack was commensurate with the attack? These are questions that will be argued by both counsels to different ends and the court will ultimately have to pronounce on these questions,’ describes Maseko.

  In essence what the defence is saying is that Oscar genuinely believed that Reeva was in bed when he approached the toilet door and that he was convinced someone – an intruder whose motives he couldn’t have known – was inside the house and in the toilet. He was fearful because it was dark and he couldn’t have known what the next action of the intruder would have been. He approached the door to investigate and when he saw that it was closed and heard a noise, he fired, because – presumably – if he hadn’t he could have been fired at.

  ‘It is not a bad argument except that the factual basis of that defence had to be laid by Oscar himself,’ says Maseko. For this reason, Oscar was left with little choice but to testify. His defence would also be at pains to show how vulnerable and fearful Oscar is and just how aware of security he is.

  The judge will decide

  In order for the state to prove its case of premeditated murder, it has to show that Oscar Pistorius planned the murder of Reeva Steenkamp. It has to prove that he planned intentionally and unlawfully to kill another human being. For premeditated murder, the state has to present the court with a motive for the murder. It would be difficult to prove premeditation without establishing a motive and showing the court what might have driven Oscar to set in motion the deliberate actions that led to the killing.

  ‘If the court is of the opinion that the state has not proven beyond reasonable doubt that the act of killing the deceased is one that the accused considered and had the opportunity to bail out of, but did not, then if all the elements of murder are proven beyond a reasonable doubt, the accused will be found guilty of murder,’ explains Maseko. ‘If the court finds that the state has failed to prove murder either because it accepts the accused’s version that he lacked intent in that he genuinely believed that it was an intruder in the bathroom, the court will have to go a step further and determine whether his actions were not negligent, that is, would a reasonable man in the shoes of Oscar Pistorius faced with the same circumstances have reasonably foreseen that it may be Reeva in the toilet and not fired? This entails looking at all the surrounding circumstances, such as the time of the night, the interaction between the accused and deceased prior to the shooting, the duration of the whole thing, the sounds the accused allegedly heard, security at the estate, and all the other actions that the accused could have taken such as to flee, etc.’

  Against a charge of murder, the defence must show that Oscar was genuinely mistaken in respect of every requirement of private defence. On a charge of murder, the defence is judged subjectively – by what the accused was actually thinking. To escape a conviction of culpable homicide, Oscar has to show that his mistake was reasonable, that he genuinely believed he was under threat, and this will be judged by the reasonable person test.

  ‘Remember, the defence doesn’t technically have to prove anything; it simply needs to raise reasonable doubt,’ emphasises Phelps. ‘The burden to prove its case rests on the state in all criminal trials. To lay a foundation for the putative defence, Pistorius’s team needs the judge to believe that he genuinely thought his life was in danger and that he was responding to protect himself and his girlfriend. Evidence of his fear of crime/objective safety issues provides an air of plausibility to his version of events. In other words, if the court accepts that he was genuinely fearful of crime/for his safety then it could assist the court in accepting that he genuinely, though mistakenly, believed there was an intruder in the house on the night in question.’

  The judge has many decisions to make. Some of these will turn on the her opinion on the credibility of Oscar’s testimony. The judge also has to make a judgment call on the gun-related counts, in addition to the murder charge.

  There will inevitably be doubts as to the guilt of the accused on any of the charges, but it is up to the court to decide whether or not these doubts are reasonable. The judge will decide whether the state has met its burden of proof and proved its case for each of the charges beyond a reasonable doubt.

  The State vs OLC Pistorius

  After weeks of sweltering heat in the capital city, the rain swept in and fell relentlessly, at times in violent sheets, at others in a persistent drizzle. Like the hundreds of journalists who had flown in from around the world to claim their seats in the courtroom, the storm parked itself at Madiba Street and didn’t leave for at least the first week of the trial.

  Taxis barrelling down the road outside the High Court in Pretoria threw up waves of water on to the pavements w
here rows of outside broadcast vans had been stationed, satellites on their roofs at the ready. Presenters dressed in suits and jackets hoodwinked their viewers, their legs below the camera shot comically wrapped in plastic bags to keep them dry.

  Across from the Palace of Justice, on Palace Street, metro police officials kept a close eye on the traffic. Newspaper vendors peddled their broadsheets previewing the trial, with the headline of the local Pretoria News reading ‘Oscar’s Date with Destiny’. The mezzanine veranda at the post office facility across the road from the courthouse had been hired out to eager broadcasters looking for an elevated position, and it was jam packed with gazebos, camp chairs and camera tripods. The media pack, both local and foreign, had just emerged from arguably the biggest breaking news story in the history of the new South Africa, the death of former President Nelson Mandela. Some had even hung around in the country in anticipation of the next big story: the Oscar trial.

  Dodging raindrops, a lone drone buzzed in the sky, its operator searching for the perfect shot of the accused arriving at the courthouse. It was 3 March 2014 and Day One of the Oscar Pistorius murder trial.

  No one knew with any certainty how things were going to roll. The media were anxious; standing in knots outside the entrance, photographers speculated about whether Oscar would get special treatment and be brought into the courthouse through a back entrance, avoiding their glare. Security had been ramped up and anyone wanting access to the courtroom, including the families of the accused and the deceased, was required to be accredited, with tags of varying colours hanging on lanyards.

  What would Oscar look like? Would he still have the beard he was spotted sporting over the past few months? Who would he arrive with and how?

  There was also a concern that the media circus could turn out to be nothing but a damp squib and the trial would not run at all. Weekend media reports had suggested that the defence could bring an application for a postponement, requesting further particulars from the prosecution. The state’s legal team insisted it was prepared and ready to run. It was all up to the defence.

  The gauntlet of reporters and public jammed the main entrance to the large brick building, standing inside the tall wrought-iron gates, in front of the imposing rust-coloured pillars. Beyond the heavy wooden doors and the glass arch, those journalists who had accreditation for the main courtroom (GD) loitered on the black-and-beige chessboard tiles, their bags filled with laptops, cables and recording equipment. Others filled the hard wooden benches, below posters advertising free legal services.

  Investigating officer Captain Mike van Aardt marched his way through the crowd, holding a black A4 notepad binder. Trailing behind him was the national head of detectives, General Vineshkumar Moonoo. Their special red tags allowed them immediate access past the security guards, clad in luminous bibs, manning the doors.

  Outside photographers waited in the rain at the side entrance to the courthouse, where Oscar’s brother and sister had entered a short while earlier. They anticipated that he would follow suit and use the same door. But they were wrong; surrounded by a bevy of ‘bodyguards’, the husbands of his uncle Arnold’s four daughters, Oscar walked into the building through the main entrance. For the duration of the trial, these same ‘bodyguards’ – Dieter Kruger, Reinecke Janse van Rensburg, Johan van Wyk and Johan Visagie – would accompany the runner each time he walked in and out of the building, escorting him to a waiting Land Rover or down the road to his lawyers’ chambers or to the Tribeca restaurant for a quick meal.

  As the Blade Runner walked in an onlooker shouted, ‘It’s Oscar!’ and the photographers turned around and saw his entourage enter. The athlete passed through the security checkpoint and metal detectors before turning back and shaking his head at those wielding their cameras. One of the ‘bodyguards’ chuckled and a photographer mumbled, ‘I can’t believe he duped us all. We were waiting like idiots in the rain.’

  A court orderly escorted Oscar into courtroom GD, guiding him to his seat in the dock. He passed Reeva’s mother, June Steenkamp, but turned his face away and avoided eye contact. The officer swung open the little wooden door and showed Oscar in. He turned and waved to his relatives in the public gallery before taking his seat.

  The room is about 20 metres wide, with six rows of seats in the public gallery. For the case of The State vs OLC Pistorius, the first row was reserved for family – it was split down the middle, the right side for Reeva’s relatives and the left for Oscar’s. Two rows behind the family were allocated to the media and the remainder for the public.

  On every day of the trial, Oscar was supported by members of his tight-knit and extremely protective family, led by the wealthy, confident and erudite Uncle Arnold, and including his brother and sister, his other two uncles and their wives, as well as his various aunts and cousins.

  June Steenkamp sat just a few arms’ lengths away from Oscar’s family, supported by members of the ANC Women’s League in their green uniforms, a friend, her cousin Kim Martin or the couple’s advocate Dup de Bruyn SC. June watched as detailed evidence of her daughter’s death was matter-of-factly and unemotionally presented to the court and she responded stoically, rarely shedding a tear.

  Oscar only greeted June once, the gesture coming, perhaps coincidentally, after she had complained in a magazine interview about his careful avoidance of any kind of eye contact with her.

  Gina Myers, her sister Kim and their mother Desi also regularly occupied the front row, glamorously dressed in funereal black with their sunglasses on standby.

  Court GD is one of only four courtrooms on the ground floor of the High Court and is the furthest room to the right. It’s the closest one to the main exit and side entrance and it is for this reason that it usually hosts the most high-profile cases and those that require the most intense security measures. Logistically, it is the easiest courtroom to isolate and officers can bring accused into the room securely. For a decade, it was used for the infamous Boeremag treason trial in which a group of white supremacists stood trial for ten years under high security, accused of trying to overthrow the African National Congress-led government in 2002, and were convicted in late 2013.

  Court staff had prepared the room for the world’s spotlight. The wooden benches were polished to a high sheen and the fluorescent lights on the ceiling cascaded light down the wooden wall panels. The two high-back burgundy leather chairs, with wooden embellishments, at the head of the room, awaiting the two assessors, were also gleaming. Between them, a smaller high-back black chair was positioned, its more supportive structure preferred by the slightly built Judge Thokozile Masipa. To the right of the chairs stood the drooping national flag.

  Eight flat-screen monitors had been set up in the courtroom, their yellow wallpaper announcing the details of the case in green and white text:

  Gauteng North High Court

  Case Number CC 113/13

  Boschkop Cas 110/02/2013

  A coat of arms sat at the top of the screen, the star of the police logo on the bottom left and the lady justice emblem of the National Prosecuting Authority on the bottom right, with a South African flag in the middle. There was a screen for the judge, another for the accused, two on either end of the room for the media and the public and two on both sides for the legal teams.

  A large air-conditioning unit on a swivel stand had been wheeled into the room for the trial and three cameras on tripods had been set up to broadcast proceedings to the ‘overflow’ courtroom next door, which accommodated additional journalists and curious members of the public. Over time that room began to resemble a movie theatre, with the lights dimmed and viewers resting their feet up on the seats in front of them, exclaiming their reactions at the big screen and snacking away, much to the dismay of the security guards trying to keep some kind of order.

  Smaller cameras had also been fitted in the main courtroom for the live televised broadcast of the trial. This was a first in South African legal history. Following an application by several medi
a houses a week before the trial commenced, Judge President Dunstan Mlambo granted permission for the hi-tech cameras to be installed.

  Mlambo stated that the media houses were allowed to broadcast audiovisual images of sections of the trial, including evidence of all state experts and the evidence of police and former police officers about the crime scene. Closing arguments by the state and defence legal teams, delivery of the judgment or sentencing, if applicable, could also be broadcast.

  Although Oscar’s legal team had opposed the application, arguing it would result in an unfair trial, in his ruling Mlambo said, ‘It is … in the public interest that, within allowance limits, the goings on during the trial be covered … to ensure a greater number of people in the community who are unable to attend the proceedings are able to follow wherever they may be.’

  Between the public gallery and the burgundy chairs of the judicial officers is the arena in which the action would take place. In front of the public gallery is the stairwell to the holding cells below, then the dock for the accused, and in front the seats for the legal teams alongside their lecterns. The defence sat to the left: Kenny Oldwadge closest to the middle and Barry Roux next to him. Behind them were attorney Brian Webber and his two candidate attorneys, Roxanne Adams and Rohan Kruger. Ballistics expert Wollie Wolmarans sat alongside them.

  To the right was Advocate Gerrie Nel, his junior Andrea Johnson, Investigating Officer Mike van Aardt and an empty chair for whichever expert witness Nel needed to consult with during evidence. In a string in the row behind them sat the police’s investigative team: Gerhard Vermeulen, Chris Mangena, Gerhard Labuschagne, Ian van der Nest, Bennie van Staden and Francois Moller. For the brief period when Labuschagne was away attending a conference, his underling Major Bronwyn Stollarz took his place. As the trial progressed, investigator Andrew Leask, who had spent years working with Nel and Johnson, joined this row.