by Mandy Wiener
Nel: Yes, M’Lady?
Court: Can you really rely on these Whatsapp messages? Can you really make a proper inference one way or the other?
Nel: M’Lady, with the utmost respect, yes M’Lady, because we just read what she wrote. She wrote it. It is not in dispute.
Court: No, no, no, I hear what you are saying, but aren’t relationships dynamic?
Nel: Indeed, indeed.
Court: Yes.
Nel: Up and down, no problem.
Court: The fact that you are unhappy today, does not mean tomorrow you will not be.
Nel believed that in the absence of anyone other than Oscar saying the couple was happy, the court had to accept the messages.
The state’s approach to the gun-related charges was similar to that of the main charge. The intention was to attack Oscar and his version, accusing him of shirking responsibility.
‘In summary, he avers that he has done nothing wrong as far as count 3 (sunroof) is concerned. His stance is that the two witnesses gave false evidence against him. He will argue that they have conspired to lie against him. As far as count 2 (Tashas) is concerned he will admit he had the gun in his hand, he will accept that the gun cannot fire without the trigger being pulled but never the less he claims that it did. In this instance he would have the court believe that the impossible inexplicably occurred.’
In wrapping up his argument, Nel became increasingly animated and urged Masipa to convict Oscar. He argued that even if the court accepted Oscar’s version that he thought there was an intruder in the toilet, he must be convicted of murder with dolus directus – a direct intention to kill.
He also argued that should the court accept Oscar’s version of events as reasonably possibly true, he cannot escape a conviction on culpable homicide. ‘A reasonable man, armed with a firearm, facing a closed door would not have fired four shots through the door if “provoked” only by a sound.’
It was the state’s argument that Oscar was guilty of a premeditated murder.
When Nel took his seat he left a major question open – one that Roux eagerly attempted to capitalise on. Crucially, Nel had given no explanation whatsoever for the first sounds (at 3:12am) that some of Oscar’s neighbours had apparently heard. On the defence version, these were the shots. On the state’s version, they seemed simply not to exist. Instead, the state argued the shots had been at 3:17am. It was the defence’s contention that the second set of noises was Oscar breaking the door down with the bat.
But if the state believed the shots happened at 3:17am, it would leave Oscar only two minutes to leave the bathroom, discover Reeva was missing, find his cricket bat, break down the door and pull out his dying girlfriend before phoning Johan Stander at 03:19am.
It was the timeline that was out of kilter and this was Barry Roux’s focus when he got to his feet to argue his client’s case. Roux was indignant. His argument was impassioned and his voice, usually high in pitch, was even squeakier than usual. He was at pains to argue his case, appearing astounded by the state’s version.
He used two clear strategies to cast doubt on the prosecution’s case. After all, the onus was not on him to prove Oscar’s case, only to create reasonable doubt about the state’s argument. He turned to what he called the ‘objective facts’ of the case and showed how the state’s version, on flimsy circumstantial evidence, could not be the only inference drawn – there could be other possible inferences. He built his case around a timeline that had been meticulously constructed from the evidence. He plotted the events of Valentine’s Day morning to show how the defence’s version was the only one that made sense. He coupled this with a blistering attack on Dr Stipp, calling his credibility into doubt and effectively accusing him of lying.
Secondly, he focused significant attention on police incompetence and the credibility of the police experts who testified. He was not claiming ‘conspiracy’, but rather that the policemen had disrupted the crime scene through folly and that this could not be held against Oscar.
But the most significant issue Roux had with the prosecution was why Nel did not give an explanation for the first set of sounds. ‘We were waiting for the state to tell the court, what were those first shots? And you will not find the answer in his heads of argument and you will not find the answer in his argument and one thing you cannot do in a criminal trial, you cannot ignore a serious material objective fact. You cannot do that and the state has done. I know why the state has done it, because it will cause a nosedive of their case on the 03:17 description, what they described as shots. They also do not deal with the cricket bat striking the door, because they cannot. But we will deal with that,’ argued Roux.
He rebutted Nel’s suggestion that Oscar was anxious on command and not at all times. ‘An anxious person and a vulnerable person does not walk around and show his anxiety and his vulnerability all the time. That will come to the fore when there is danger, or a perceived danger,’ argued Roux and reminded the judge of Professor Scholtz’s idea of the ‘Two Oscars’ – one confident and one anxious. ‘One that you will see, that is everything fine and the other one, that you will not necessarily see when he is vulnerable.’
Roux also focused on the state’s failure to call former investigating officer Hilton Botha to the stand to testify. This was ironic because the prosecution had been so critical of the defence for not calling witnesses to back up its claims on the screams.
The bulk of the defence’s argument was, however, moulded around the timeline that was carefully constructed. On the defence’s version, the timeline appeared as follows:
• 02:20: Security activated guard track next to the house of the accused
• Approximately any time between 03:12–03:14: First sounds
• Approximately 03:14/5: Accused shouting for help
• Approximately any time between 03:12–03:17: Screaming
• ±03:15: Accused seen walking in the bathroom
• 03:15:51 (duration 16 seconds): Dr Stipp’s telephone call to security
• 03:16 (duration 58 seconds): Mr Johnson’s call to Strubenkop Security
• 03:16:13: Mr Michael Nhlengethwa’s first call to security – did not go through
• 03:16:36 (duration 44 seconds): Mr Michael Nhlengethwa’s second call to security
• 03:17: Dr Stipp’s attempted call to 10111
• 03:17: Second sounds
• 03:19:03 (duration 24 seconds): Accused’s call to Johan Stander (Exhibit ZZ8)
• 03:20:05 (duration 66 seconds): Accused’s call to 911
• 03:21:33 (duration 9 seconds): Accused’s call to security
• 03:22:05 (duration 12 seconds): Security’s (Pieter Baba’s) call to the accused
• 03:22 Security (Pieter Baba) arrived at the house of the accused
• Approximately 03:22: Johan Stander and Carice Viljoen arrived at the house of the accused
• Approximately 03:23/24: Dr Stipp arrived at the house of the accused
• 03:27:06: Johan Stander’s call to 911 in the presence of Dr Stipp
• 03:27:14 (duration nil): Dr Stipp’s attempted call to security
• 03:41:58: Ambulance arrived at security gate of Silver Woods estate (Photo YYY)
• Approximately 03:50: Declaration of death by paramedics (Record 2187 – Carice Viljoen) and accused going upstairs to collect identity document of the deceased
• Approximately 03:55: Police arrived at the house of the accused
Using this timeline, Roux attempted to show the court that only the defence’s version could make sense. He also suggested the court should place more weight on the evidence of the neighbours who were closest to Oscar’s house, such as the Nhlengethwas, as they were more believable. In addition, he defended the decision not call a witness to testify that Oscar sounds like a woman when he is anxious because, he argued, the nearby neighbours had done the job. So too had acoustics expert Ivan Lin.
Attached to the heads of argument was a 26-page document effectively aim
ed at destroying Dr Stipp’s version of events. In an attempt to undermine his credibility, it criticised him heavily for the timing of events he gave during his testimony.
‘He was then the only one saying oh, no, that help, help, help, was after the security guards had came to me and after I had made a call at 03:27 and after they had left a few minutes later, which was after 03:30, I heard a man shouting help, help, help and we say, really? Really, because at that time Dr Stipp was at the house of the accused. At that time the accused was … on all the evidence unchallenged, in the foyer with the deceased and with Carice Stander and Johan Stander standing outside, and Dr Stipp examining him. So … examining the deceased. So it cannot be. But I will show you many things about Dr Stipp that cannot be, many many things and Ms Stipp,’ bristled Roux.
Stipp claimed he had seen someone walking in Oscar’s bathroom after 3:30 – at the same time that, by the accounts of Stander, his daughter Carice and the security guard Baba, Stipp was already inside Oscar’s home. The defence was adamant that Dr Stipp, based on the objective evidence, was already out of his own house by 3:27am.
Roux argued that for Stipp to see Oscar through the window, the athlete would have to be wearing his prostheses. This meant Stipp indirectly confirmed that Oscar had attached his legs before he struck the door with the cricket bat, the version the athlete had presented to the court.
The defence counsel also attempted to cast doubt on the testimony of the other neighbours who had testified for the prosecution. He was of the view that Michelle Burger and Charl Johnson had tailored their versions and that it was unlikely the couple would not have collaborated on them. He also undermined Estelle van der Merwe, stating that her claim that she had heard what sounded like a woman arguing was speculative.
To counter Van der Merwe, Roux pointed out that Mrs Stipp, who was awake just before 3:00am, didn’t hear any kind of argument and that the security guards did not notice any disturbance when doing their rounds in the hours before the shooting.
For Roux it was important to cast doubt over any kind of inference that Oscar and Reeva were awake and possibly arguing before the shooting because this suggested a ‘motive’ for the murder. But this also meant attacking Saayman’s testimony on gastric emptying, promptly challenging Saayman’s evidence by reminding the court that it was not an absolute, but rather that the pathologist had only ‘suggested’ that Reeva could have eaten two hours before her death and not definitively – there could be a couple of hours variance either way.
To neutralise the contentious WhatsApp messages, Roux directed the court to the Valentine’s Day card Reeva had written to her boyfriend. In it she said it was a good day to tell him she loved him. On the defence’s version, this was evidence enough to prove the couple was in a loving relationship.
Roux challenged Nel’s argument that Oscar was standing in front of the toilet door, talking to Reeva when he shot. ‘The accused was not standing in front of the door. Why, if he wanted to shoot someone in an argument, would he remain in the entrance as if he is scared of whoever was in the toilet? That is far more consistent that he was scared, that he did not trust whoever was in the toilet. Otherwise, yes, walk into the bathroom stand right in front of the door,’ said Roux.
He also argued against the contention that it had been a ‘good grouping’ of shots. ‘My Lady, what he should say to you and I am not a shot, I have not touched a firearm for many, many, many years, but if you put me two metres from a door and ask me to fire four shots, I am pretty sure I can get a better grouping. If you say to me aim and fire from two metres, My Lady, it is from here where Ms Johnson is sitting, there fire four shots in the door. We must be careful when we look at that grouping and think that is a person 100 or 150 metres away, then it is a brilliant grouping. But two metres away, is that a good grouping for two metres away?’ asked Roux rhetorically.
The defence counsel methodically worked through Nel’s ‘baker’s dozen’ of inconsistencies, dismissing them with disregard. ‘M’Lady, if that is a baker’s dozen, I do not want to eat those cookies. Because it is not a good one. It is really not a good one,’ he said emphatically to the amusement of some in the courtroom.
Roux explained it was expected there would be discrepancies between Oscar’s bail application and his evidence in the witness box. He also explained Oscar’s apparent memory loss under pressure: ‘This man suffers from a severe depression in that witness box. Not my evidence, the psychiatrist report. Professor Scholtz’s report. Major stress. You cannot just ignore that. So when he tells you: “My memory is not very good at the moment.” It makes sense. Do not criticise him for that. It makes sense.’
He also dismissed questions about Reeva’s behaviour that had been posed by the state. He didn’t think it odd that she had taken her phone to the toilet – it could have been used for light or to look at social media. ‘M’Lady, if you work through the WhatsApp messages, you will find WhatsApp messages from the deceased in the toilet at night. I can understand it. You take it to give you light there. People do it all the time when they get up, with their cellphones. All the time. That does not defy logic. Why must you switch on a light, you walk with your cellphone, especially the younger generation. They … I want to say like battery and torch, but they gel so well with their cellphones, that it is not strange.’
Roux also explained it wasn’t unusual that Reeva had not shouted out when she heard Oscar scream because she did not want to give her position away to a possible intruder.
‘She could have done two things. She could have given her position away, she heard him screaming intruders in the house, they must get out. Or she can think I must hide, I must keep quiet. I do not want them to get to me. It works both ways, there is no special potion there. There is no special answer there, there is no special probability.’
Having to his mind answered the state’s case, Roux went on the offensive and began to deal with the law. It was important for him to explain what was potentially viewed as Oscar’s changing defence or different versions. He also had to prove to the court that it was not the athlete’s intention to kill anyone, but that he felt threatened and was acting on reflex.
Oscar could not be considered a ‘reasonable man’ by the conventional test, he stated. ‘The law is not that reasonable man from 1960 in his grey suit and his grey shoes. We have moved away. We … we referred to the case to say it has moved on. You have to look at the person in the same position with the same abilities/disabilities,’ Roux insisted. He argued that in discharging the firearm, Oscar did so because of an increased startle response. The startle response was reflexive and Oscar could not be held accountable because he lacked capacity in the involuntary reflexive response. He also emphasised that the startle response was exaggerated or increased due to the ‘slow burn’ effect of his disability over years and his consequent increased vulnerability.
Roux pointed to Professor Derman’s evidence to back this up and criticised Nel for questioning his credibility. ‘He is highly, highly, highly qualified. He is the most qualified person in the country. Whatever he was saying to the court, he backed up with research, with authoritative articles, publications on that very point. He was not saying something because he says that is what I am thinking.’
The defence counsel then proffered a risky analogy in comparing Oscar to a woman who had been abused over a long period of time and who had then snapped and killed her abuser. He used this to demonstrate his theory on ‘slow burn’. But Judge Masipa, a known advocate for women’s rights, was quick to question the analogy:
Court: You spoke about the ‘slow burn’. I understand it when you speak about an abused woman situation, how does it apply to the accused in this case?
Roux: I will explain it and that is fully dealt with in the evidence of Professor Derman, but I am going to sum it up and also refer to: you are a little boy without legs, you experience daily that disability and the effect of this. You experience daily that you cannot run away. I am not talking ab
out abuse here. You know I cannot run away. I cannot run away. I do not have a flight response. We all know that we have three responses: freeze, fight and flight, primal. What Professor Derman was at pains to explain, is to say that is well known in research and his … also his experience with that disability, over time you get an exaggerated fight response, that is why he would go and not run away. That is the ‘slow burn effect’. Not abuse. It was just a brilliant … the word was for the first time used in relation to abuse. So that constant reminder I do not have legs, I cannot run away, I am not the same, that is with him. He can pretend … he can pretend that he is fine and he is wonderful with his legs on and we see this athlete and that is what Professor Scholtz was saying, and I will invite you to look at that part, when he says we have two Oscars … we must understand that ‘slow burn’ and the anxiety. If you are anxious and if you are vulnerable, and if you have the ‘slow burn effect’, you do not go to bed and cannot sleep, lie awake, but the moment you are confronted with danger, or perceived danger, it comes to the fore. Then … then you are compromised because of the ‘slow burn’, because of the anxiety, because of your real position in that sense and it was in that sense that I say, the abuse is different, but it is the same. Without legs, abuse. Abuse, abuse. So ultimately when that woman picks up that firearm … we can use the common word, I have had enough, I am not shooting you because you have just assaulted me, not because of one punch with a fist in my face, I would never have shot you because of one punch with a fist in my face, but if you have done it 60, 70 times, that effect of that over time it filled the cup to the brim that is … in that sense, My Lady.
Essentially, the defence case was that, in the face of danger, Oscar had to choose between fight, freeze or flight and over time the fight reflex had become exaggerated because, with his disability, ‘flight’ was not an option. Roux went so far as to demonstrate this by slamming the desk in front of him for effect. ‘You are vulnerable. You have the effects of the “slow burn” over many years. You are anxious. You are trained as an athlete to react to sound, sprinters. We all know him. You are trained. He says, take all those factors into account and he stands now with his finger ready to fire if necessary, and he stands there and then …’ Roux banged his hand on wood.
