by Mandy Wiener
Roux stressed that he was not putting forward contradictory defences and explained what he was asking of the court in his heads of argument:
If the Honourable Court were to find that the Accused did not discharge the shots in a reflexive response, consequent upon an exaggerated startle, which made him incapable of acting in accordance with his appreciation of right and wrong, or incapable of acting, then the alternative finding can only be that the Accused intentionally discharged the shots, in the belief that the intruder/s was/were coming out of the toilet, to attack the Accused and the Deceased.
But Roux did make one significant concession during his closing argument. This was around the shooting incident at Tashas. Oscar took partial responsibility. ‘He is guilty, My Lady, he is guilty on the first alternative, that he negligently used that firearm and causing the discharge. It must be like that. He says that in so many words. He says, “I made a mistake,”’ said Roux, raising the question as to why Oscar did not plead guilty on this charge from the outset. This would have negated the need to call several witnesses who discredited his character.
Roux persisted with his client’s innocence on the sunroof charges and suggested that Darren Fresco and Samantha Taylor had conspired against Oscar. He insinuated that Fresco had testified to save himself and that Taylor’s motive was to get back at Oscar as she believed he had cheated on her. He even argued that Fresco should not be granted indemnity from prosecution, a decision Masipa had to make.
With Oscar’s father in the public gallery, having allegedly refused to give a statement to the defence to back up his son’s claim on the ammunitions charges, Roux persisted with his client’s version. Oscar did not believe he should be convicted for keeping his father’s ammunition in his safe.
In closing, Roux urged the judge to consider Oscar’s position: the ‘slow burn’ of his disability over his lifetime, his startle response, his anxiety.
It comes down to that split second, that one minute or 20 seconds, I do not know how long it was, or 30 seconds in the accused’s life, where he was standing at the entrance to the bathroom, firearm pointed at the door, that is what this case is all about.
Should he have … in the event if the court not finding reflexive, should he have discharged the shots. Not confusing it with dolus, as a reasonable person in his position.
If the answer is yes, that is the end of the case. If the answer is no, then all the other aspects would only be mitigation, he must be convicted.
We have explained in the heads of argument, why we believe in those peculiar circumstances he was not negligent. We ask you to consider it and then in your discretion, you and the learned assessors consider that crucial point, taking into account three o’clock in the morning. Knowledge of danger of people entering the house, standing with the firearm. Should he have discharged the firearm, yes or no. We have made our submissions then, M’Lady, and we say this is what the case is all about.
Late on the Friday afternoon, both men had made their cases. They had invested all of themselves in their closing arguments. Oscar, watching the display of expertise and performance from a prime seat in the courtroom, knew there was no more to be done. The arguments had been made.
It had been an excruciating six months for those who had packed the public gallery day after day, most notably the extended Pistorius family, Reeva’s parents and the Myers. And then, in what was seen as a final act of resistance, Oscar’s aunt Lois Pistorius, glowered at Nel and asked in Afrikaans: ‘Kry jy nie skaam nie? [Aren’t you ashamed?],’ Beeld newspaper reported. Nel didn’t hear her and didn’t respond.
Later that afternoon, Oscar tweeted his gratitude to those who had walked with him over the past few months:
Thank you to my loved ones and those that have been there for me, who have picked me up and helped me through everything.
Over the 39 court days of the trial, a total of 37 witnesses had taken the stand. Thousands of pages of court transcripts had been produced and dozens of exhibits introduced.
Judge Masipa, a 66-year-old former social worker and journalist, held in high esteem by her contemporaries despite her limited experience as an advocate, now had to take it all away and mull it over. She and her two assessors had to deliberate and determine whether the version put forward by the state was the only reasonable, possible version of events – did the prosecution meets its ‘burden of proof’? Did a global superstar – reckless and gun-toting, incapable of taking responsibility for his actions – deliberately, intentionally, kill his beautiful model girlfriend in cold blood in a premeditated murder? Alternatively, she had to consider whether enough doubt had been cast by the defence in posing its version. Did a vulnerable, anxious young man, affected by a lifetime of disability and a turbulent upbringing, fearful of violent criminals, desperately try to protect the love of his life in the only way he could, and was he now suffering through the most monumental tragedy?
There was also a murky grey area between these two polarised perspectives, which Masipa would have to navigate by considering complex legal interpretations and nuanced understandings of the law to reach a final verdict.
The Scales of Justice
There is a perception in South Africa that money and influence can buy justice. This notion has been reinforced by a series of legal decisions over the past few years that have been highlighted in the media.
National Police Commissioner Jackie Selebi was convicted of corruption, sent to prison for 15 years, spent less than a year in the hospital wing of a correctional facility and was then released on medical parole, suffering from kidney problems.
A decision was taken by the acting head of the National Prosecuting Authority to withdraw corruption charges against President Jacob Zuma based on so-called spy tapes alleging political interference. This was despite Zuma’s financial adviser Schabir Shaik being convicted on a reverse charge of corruption. Shaik was also released on medical parole, having been diagnosed with hypertension.
But perhaps the case that has most entrenched this perception, rightly or wrongly, is that of Fred van der Vyfer who was acquitted of murdering his girlfriend, Stellenbosch student Inge Lotz. With their wealth, the Van der Vyfers were able to fly in the very best international forensic experts to expose what was widely considered the questionable practices of the police investigators. They were able to lay bare what appeared to be a conspiracy against Fred; he was found not guilty of the murder and to this day no one has been convicted of the crime.
Stephen Tuson, associate professor at the School of Law at the University of the Witwatersrand, believes that this perception is based in reality. ‘I think it is absolutely true if you can hire a competent defence. But not only that but competent investigators and competent science and forensic investigators, competent reports from all sorts of specialists – you will be able to counter everything the state raises against you, and there is absolutely no doubt in my mind that money buys you a better quality of justice, without exception. Because you can afford to make all the preliminary applications for all the documentation and evidence and forensics you want. All of these processes and all of these investigations cost an enormous amount of money and the attorney’s time costs a lot.’
While the perception remains that money and influence do indeed buy a better quality of justice, research appears to show differently. Rather, Oscar’s status and celebrity could have a detrimental effect to his right to justice.
In fact, at the close of the defence case, Barry Roux told the court: ‘We were unable to call a number of witnesses because they refused, and didn’t want their voices heard all over the world.’ Of course, the defence could have exercised its right to subpoena the witnesses to testify, but that did not happen. ‘It’s not Barry’s style,’ as one source close to the defence team put it.
As an example, Samantha Greyvenstein told us that while she did consult with the defence team in chambers, she ultimately chose not to testify for them. ‘Everything that I said in my statement was
true and I didn’t feel that I had anything else to contribute. Everything else would have been an elaboration. I wanted to stay completely neutral and I didn’t want to be in the limelight. I prefer not to throw myself and my family into the media,’ said Greyvenstein.
Oscar’s lawyers had opposed the application to have the trial broadcast and, in the end, believed that televising the trial counted against him. They argued this would lead to an unfair trial and create a media circus and that Oscar’s trial should be treated like any other. The concern was that televising proceedings would allow witnesses to tailor their evidence – an allegation that emerged several times during Roux’s cross-examination.
This notion was again highlighted when the media juxtaposed the massively high-profile Oscar Pistorius murder trial with the case underway in the courtroom alongside Court GD. Thato Kutumela was on trial for raping and murdering his pregnant model girlfriend Zanele Khumalo in 2011. While Oscar’s fate was being decided next door, Judge Johan Kruger sentenced the 28-year-old to 20 years in prison.
Law expert Kelly Phelps says that despite widely held public beliefs, research actually suggests that, if anything, fame of the accused leads to harsher treatment by the courts. ‘With regards to money – people seem to assume that money buys a miscarriage of justice. This is grossly unfair. If anything, money levels the playing field between the state and the defence, rather than tilting the scales in favour of the accused. The state has huge resources available to it in prosecuting cases that far outweighs the resources of most accused persons. The focus should be on getting poor people access to justice to the same extent that wealthy people have access to justice, not on removing the access to justice of wealthy people. The fact that wealth evens the playing field is a universal reality in all legal systems, not something unique to South Africa.’
And research tends to back up what Phelps says. In ‘Professional Athletes Held to a Higher Standard and Above the Law: A Comment on High-Profile Criminal Defendants and the Need for States to Establish High-Profile Courts’, LN Robinson examined the treatment of professional athletes. The study found that professional athletes’ celebrity status and the national media coverage that accompanies their cases mean that some athletes are singled out as sacrificial lambs while allowing other athletes to receive preferential treatment.
‘High-profile defendants, although occasionally above the law, nevertheless frequently find themselves subject to increased scrutiny due to their status and visibility, and that as a result a special court system is necessary to protect their right to a fair trial.’
With that said, however, the study also found that when an athlete is actually sentenced to jail, the system often provides that person with preferential treatment while the sentence is being served:
For instance, while in jail awaiting trial, it was reported that OJ Simpson received special treatment not afforded to other inmates. He received a hot shower every day, was given unlimited visitation privileges, hot dinners, extra time out of his cell to stretch his legs, more access to the telephone, private no-contact visits with his girlfriend and children, and visitors on Christmas Day.
A recent study out of Warwick University, entitled ‘Celebrity Adjudication: Comparative Analyses of United States Verdict Rates for Celebrity Defendants’, examined celebrity status as an outside influence on judicial decision-making. The researcher examined 303 celebrity verdicts from 1998 to 2010 in order to shed light on whether celebrities are adjudicated in the same or a similar manner as non-celebrities. The findings suggest that celebrities do not receive any special treatment at trial, and are in fact convicted at a 12.1 per cent higher rate than non-celebrity defendants.
One possible explanation for this outcome is the idea of betrayal. ‘We put our faith in these people, we emulate them in many sociological ways; we dress like them, we eat what they eat, and we tend to admire them. When they fail to live up to our lofty ideals for their behaviour we feel betrayed and take our revenge.’ Another possible explanation is envy. ‘So, though we admire celebrities, we may secretly want them to fail because they frequently have the status, wealth, and attention we do not. When given the opportunity, we punish them.’
Much of the research focuses on cases in the United States where juries decide guilt or innocence. In South Africa, of course, trained judicial officers and assessors make the decision and not juries of laypeople.
Despite the research, reading the public temperature in South Africa, the assumption was that with his own wealth and that of his family, Oscar would be able to hire the very best experts in the world, that he would turn to foreigners to assist him and that his own forensic team would vastly outsmart the local policemen and investigators.
While the defence did go to American company The Evidence Room to help in recreating the events of Valentine’s Day in 3D animation, no foreign expert or world-renowned authority was called as a witness for the defence.
However, it did emerge that during a two-week adjournment in April, the legal team contacted US forensic expert Alexander Jason, who referred them to acoustics expert Susan Witterick at dBx Acoustics in the UK. Witterick stated on her online blog that she was briefed by Oscar’s defence team and was put on standby to get on a plane to be in the witness box within a fortnight. She said, in the end, the team opted to use Ivan Lin because ‘they couldn’t afford to use me’.
It also appeared as though even the initial experts they approached didn’t remain involved. It seemed that the defence then had to make do with what they could and those they approached only conducted tests well after the trial had begun. In fact, defence counsel Mannie Witz went as far as to call the defence ‘lastminute. com’ and ‘Johnny Come Lately’ when commenting on the team’s preparation.
During the course of the trial, both the defence and prosecution teams drew criticism from commentators for their tactics and strategy. This was inevitable when the trial was being so closely scrutinised and being broadcast blow by blow. The legal fraternity in South Africa is a small one, and behind the scenes of the High Court theatre, a fascinating version of how things may have played out could be heard. Most lawyers see it as unethical to criticise their colleagues in public, particularly in a field dominated by ego and competition. Instead, they would only speak anonymously. And despite the chatter in legal circles and the extensive speculation about what was going on behind closed doors, only those within the legal teams truly knew the circumstances. That didn’t stop the sharpest legal minds from volunteering an opinion.
What was potentially going on behind the scenes within Oscar’s legal team? Was it all about who was calling the shots and who held the real power?
‘I know for a fact there is massive infighting between Roux and Oldwadge over the instructions which they give to Oscar,’ comments a top criminal defence attorney. ‘They speak to Oscar about a specific incident and then Kenny kind of takes over and says this is important. Kenny took over. He’s hired because Oscar’s brother was defended by Kenny in other matters.’
A source close to the defence team, who does not want to be identified, confirms there was a disagreement between Oldwadge and Roux. ‘There was a serious fallout. I don’t know what it was about but they had a big fight. They spent an hour behind closed doors and when Kenny came out he was furious.’
The attorney believes that the root problem is Oscar’s choice of attorney. Brian Webber has very little experience in criminal cases and primarily practises in corporate litigation. ‘I don’t think that Oscar’s lawyer has done a criminal matter in the last 20 years. It’s an enormous misconception that the lawyer just sits there in the back – he’s the one who sits down with his client and goes through the case. The buck has to stop somewhere. I prepare the living shit out of a guy. Barry wasn’t briefed properly on this. Barry needs to feel heavily supported.’
A senior advocate with decades of experience fully agrees with this notion. ‘Advocates carry out the instructions of the attorney. They can give advice b
ut can’t tell you what to do. An advocate’s job is to prepare a case for litigation and litigate. They can determine strategy, but they can only advise. I can say to you, these are your options, having heard your version, but I can’t adapt your version or panel beat it. Your attorney in discussion with you will give instructions and the advocate must do it. If a client says, “I want you to stand on your head and wear pink underwear,” then you fucking do it. But you can’t withdraw for nebulous reasons. If you’re available, you have to take it. It’s called the cab-rank rule. Ethically you’re not supposed to choose – some people would never get represented if that were the case.’
Just about every lawyer we spoke to was of the opinion that the defence strategy was wrong from the outset and that such a detailed version should never have been put on record at the bail application.
‘Remember what his rights are, to say fuck all. He had already verbally told the police his version. They’re calling the doctor to the funeral to be honest,’ says the attorney.
The senior advocate agrees: ‘I thought they dealt with it very poorly. That statement is deadly. It amounts to a confession for murder. I presume that they felt cornered. The state only opposed bail to get a version. All you need to do is give a version, very bland, as non-committal as possible. You don’t even have to give a version at all. I would have stuck with “intruder, big fright, fired shots. It’s the morning after, I actually don’t even know, my client is not able to depose to a statement, and we’re considering hospitalising him.” I’m sure Barry was livid with that statement.’
