by Mandy Wiener
However, it is understood that Roux did play a role in settling on the affidavit.
The attorney believes Roux allowed Nel great latitude in cross-examination. ‘You can’t allow Gerrie to stand up and go on and on and on. Barry could have jumped up. Gerrie will cross-examine an innocent or honest person into looking very bad. He is the representative of the people and his duty here is to get the truth in front of court. Nothing is going to stop him. Gerrie is fucking unstoppable. He gave Oscar the hiding of his life.’
Another top advocate, who has defended many a criminal, says the problem from the outset was that ‘the tail wagged the dog’ and the ‘fuck-up of a bail application’. It all came down to strategy.
‘In the plea explanation, it was putative private defence. When they saw it didn’t tie in, then they went with temporary, non-pathological incapacity. It’s what they do in road rage cases – if I lost my temper to the point that I couldn’t control myself, I get off. It’s an “emotional storm”.
‘They took a principled decision right in the beginning not to use automatism because they denied the argument. But there’s no hybrid. The public and the courts didn’t see it coming and then Vorster came and it changed for the third time. They wanted to keep both doors open but they could have cut a deal right in the beginning.’
Advocate Mannie Witz was willing to go on record about what he thought of the strategy of both the prosecution and the defence. He assisted Darren Fresco in drawing up his statement and has been a prominent commentator throughout the trial. Witz says Oscar’s legal team had no choice but to go with the intruder defence as they were ‘married to it’, because it was what Oscar had told Dr Stipp and the Standers in the minutes after the shooting.
‘They must have been aware that their client, when they got instructions, must have told them that Stipp was there. He had told Stipp that he had made a mistake and he had told Stander. I think he had to stick to that version. Especially when a guy like Dr Stipp is a person who is a complete independent – he’s got nothing to do with any of the parties – if he’s going to come along and say that, I think you’re married to that version. I think what the defence tried to do, they tried to taper that version in with a very difficult defence, which is putative private defence.’
Witz thinks they were trapped into the bail application statement. ‘There’s been a lot of criticism going around about the bail application statement, and I mean he’s got very experienced guys who appeared for him. The defence knew from the beginning that what they set out in the bail application was going to be used eventually, but I think the state was actually quite cunning and quite shrewd in that bail application.’
Witz says he’s been surprised at how tardy the defence appears to have been in preparing witnesses. ‘A lot of the witnesses have been after-the-event witnesses. Like Professor Merryll Vorster. Merryll is a very competent woman, very experienced and she knows this game, and I mean they only got hold of her after Oscar had given his evidence and after everything, and then she then came out with this anxiety disorder. I found it a bit strange. They never gave the reports to the state, so the state was really caught unawares and a lot of these reports were done after the event.’
Like the other lawyers we interviewed, Witz is of the opinion that the core problem is an attorney who isn’t experienced in criminal law and a potential fallout within the defence team.
‘Brian’s not a criminal lawyer. It’s the second one he’s ever done in his whole life and the last one. Brian used to do all the Pistorius family stuff and do all the endorsement and the civil stuff and commercial work when they needed an attorney. He just said to me this is the second and the last in his whole career and he has been on the go for 35 years,’ says Witz.
He has also heard about the friction within the defence team. ‘There’s talk about it. There’s a lot of talk around the chambers about what’s going down and what happened, etc. No one knows what the real truth is.’
Regardless of the speculation in legal circles, it seems as though the reality is different. A source close to the defence legal team rubbished many of these speculations.
‘There was really not a fallout at all between Barry and Kenny. They work very well together and have a good relationship. Barry calls the shots and Kenny does the groundwork. Barry will never be intimidated by Kenny.
‘The real fallout was between Brian and Kenny. For a day or two there was a bit of sulking. Kenny felt that some of the things he asked from Brian were not forthcoming quickly enough. To say that Kenny and Uncle Arnold are big mates is not true. Arnold was sort of interfering and Kenny took no nonsense. Arnold was saying “do this, do that” and Kenny didn’t like it.’
The source suggests criticism of Webber’s lack of experience was, however, spot on. ‘Brian was just out of touch with the criminal aspects, the strategies, he was lacking the experience.’
The source is quick to explain the defence team’s strategy around the bail application statement, saying that criticism is simply unfair. It’s also understood that Oscar was keen to take the stand at the bail application already but he was stopped by his lawyers.
‘We all know in a bail application that you stay clear of the merits. Oscar wanted to tell his story. He wanted to give evidence at the bail application already. Barry knew he would not have coped. He wanted his version out there, understanding the dangers. He wanted to tell the truth. He didn’t want them later to say that he’s coming up with a version. He insisted on giving evidence and the legal team said “No”. They would rather take the route of an affidavit. In fact, in giving that version, the legal team believed it would save his credibility ultimately in the trial. There will always be contradictions in a version but the material gist remained the same throughout all his versions. Ultimately, the judge would have realised that Oscar’s version is not a fabricated afterthought premised on a reading of the docket and trial preparation.
‘Barry didn’t like it but felt that once Oscar’s version was confirmed by the experts, that it was not unsafe to go that route.’
Why didn’t the defence choose to go with overseas forensic experts, as it was widely thought would happen?
‘There were huge time limitations to get experts and the only people they could get were Wollie and Dixon. With Dixon, for example, Barry never anticipated he would go beyond the agreed ambit of his evidence. They couldn’t go internationally to bring in expert witnesses due to financial constraints,’ said the source.
And why did it appear that so much was done at the very last minute? The source states that this is not true and the defence was never in disarray, as has been suggested by observers.
‘The only witness that was instructed belatedly was Merryll Vorster, for two reasons – the one was that another witness became unavailable very late and when they considered Oscar’s evidence, they realised that the role that his anxiety played should be explained. They realised they had no choice but to call another expert witness and that’s why they went to Merryll.
‘With Van Schalkwyk, the social worker, she went to the legal team after Oscar’s evidence, telling them that it was unfair what was being said in cross-examination that it was “all about Oscar”. She said she wanted to testify to correct that perception and Barry called her so quickly because the next expert witness was not available the following day and, rather than standing down and waste court time and money, he put the witness on the stand. They thought she was a great witness.
‘Dixon’s and Wolmarans’s tests weren’t done late. Barry wasn’t happy with the cricket bat test and he sent them back to redo it again. It’s not a criticism of Barry’s but of the efficiency of the defence witnesses.’
While colleagues are highly critical of Roux’s apparent failure to protect the accused while he was on the stand and not object as actively as he could have done, those close to the defence legal team suggest this was an intentional move by the senior counsel. He had read the judge and did not want to provoke
her.
‘There were many instances where objections to the cross-examination of Nel would have been justified. However, it was felt that the judge would see right through what was taking place and that the unfair cross-examination would be converted into a negative for the state as it was obvious that the judge was not impressed with Gerrie’s style of cross-examination. The defence also did not want to be seen to protect Oscar in his evidence all the time as that in itself would create a negative perception.’
A source close to the legal team is dismissive of gossip and baseless speculation and was ready to hit back, taking a swipe at Advocate Witz, a regular on TV during the trial. Those in the defence team have also all heard the rumblings that have been going on in chamber corridors, ‘always by the same people, who should not necessarily be in a position to criticise.
‘Any experienced lawyer will realise that he or she does not know the full facts and the complexity of the facts and to sit on the sideline and to shoot from the hip is not only dangerous but outright stupid. It’s for that very reason that you would not see prominent counsel on television shows as they know that it would not only be improper but that they are not privy to the full facts and the difficulties in the matter. However, those wanting to improve their image would revel in the attention,’ says the source. ‘You’ll never see Barry doing that.’
While the prosecution team did not appear to be struck by the same internal politics and wrangling, it wasn’t without its problems. During the course of the trial Gerrie Nel’s style of cross-examination shocked many. Commentators described it as a ‘scorched earth approach’, ‘win at all costs’ mentality and suggested that deliberately humiliating or laughing at a witness was ‘atrocious behaviour’.
However, the real criticism of the prosecution would only come after judgment when it appeared to many that the state had got its tactics wrong. The sentiment was that they had overreached, been too greedy and gone for too much right at the outset.
An experienced criminal advocate, who doesn’t want to be named, has strong views on the prosecution’s approach. ‘I think their strategy was poor. I think they went for a big hallelujah and they didn’t have to. If they had just gone quietly for murder and not dressed it up as anything more than just a murder, then it would have been different. There wouldn’t have been all this confusion with different kinds of dolus. But they had to go with a thing called premeditated murder, which doesn’t exist in South Africa, and conflated the issues. We didn’t have to have sobbing and screaming and neighbours coming by and trajectories and kak. None of that was necessary.
‘Murder in South Africa is not a big deal – we get convictions for murder every day. They put so much extra stuff in to try and dress it up like the number one murder in the world when in fact it isn’t. The personalities are irrelevant.’
A source within the state’s team disagrees, saying they were never distracted by the personalities or the media attention. ‘It was a case like any other. Honestly, it was just a case and I think our reaction was more that we would want to do it because, even before we went to court and were listening to the media and everyone speculating about oh poor Oscar and poor Oscar, we were just thinking oh those could have been our daughters. Is her life now less important because someone important would have killed her? No way. And for us we just went to court. That’s it. We didn’t know it would get the kind of attention it did. We knew it would get media attention, but it wasn’t important.’
The criminal advocate says that while decisions would have been made by the whole team, the lead prosecutor’s style does have an impact. ‘It’s Gerrie’s style to go for the big thing and we’ve seen it happen so many times. It’s a common error in prosecution. It is his style to go for broke, like he did with Jackie Selebi. This case is simple – it’s just a murder. There was a human being in a very small, enclosed place. Another human being fired a gun into an enclosed space – on his own version expecting another human being to be there. That is murder.’
Litigation attorney David Dadic agrees that the state was overly ambitious and its tactics backfired. ‘I do believe that the evidence never got to the point of where they wanted it to get to regarding a conviction of premeditated murder. Should the same energy and resources have been spent entirely on proving eventualis rather than the difficult convention of premed, we may have seen a different result.’
In the same way that commentators say the defence was ‘married’ to Oscar’s bail version, so too was the prosecution ‘married’ to its approach to the bail process.
‘When the bail hearing happened, Nel wanted it to be a Schedule 6 premed because he wanted a version from Oscar in bail. He wanted to attach him to a version. He left himself with that difficulty. It was a good move at the time to get a version from Oscar, but it backfired because he had to stick by that charge and prove it. He couldn’t leave it as a tactic,’ says Dadic.
Like the criminal advocate, Dadic says the court would not have got confused if the prosecution had not led unnecessary evidence. ‘It would have been less confusing in the court’s mind. The waters were very coloured by over-evidence – WhatsApp messages and iPhones and all these things that at the end of the day didn’t even come into bearing.’
Kelly Phelps says she has never been able to understand why the state persisted with a premeditated murder charge. ‘I have never doubted the sincerity of their belief and their approach, but I have always been absolutely confounded as to what that sincerity of belief is based on. There has never ever been any substantial evidence. If you read the defence’s heads of argument, where they have trawled through all the evidence and built up this chronology based on incontrovertible facts, it’s the one thing that you can’t dispute. I don’t see how anyone can read that timeline and not be utterly convinced.’
By presenting a premeditated murder case to the court under the context of massive media hype and live broadcast, the state might also have influenced the ‘court of public opinion’. Those laypeople watching, who don’t understand the law, have drawn their own conclusions and these could be incredibly difficult to shift.
Phelps believes it is unfair to Pistorius and to Steenkamp’s family. ‘I think it’s forever changed public opinion and I don’t think it will ever be reversed. I think they’ve absolutely prosecuted the case in the media,’ she says. ‘How many people are ever going to read those heads of argument? I think this really has been trial by media. You cannot prosecute a case on a hunch. It’s a disservice to the victim’s family because it creates white noise.’
As is inevitable with any criminal case, especially one run so openly and so intensely scrutinised, everyone will always believe their view to be right. The law can also be open to interpretation and so it was with the State vs OLC Pistorius. Everyone had an opinion.
Judgment Day
The back door to courtroom GD swung open, revealing two elevated moonboots and a wheelchair. It was carefully steered down the carpeted slope past the teeming public gallery, avoiding several armed officers in bulletproof vests, and through the cordoned-off main courtroom area, before coming to a stop in an open space next to the defence counsel’s desks.
Carl Pistorius was parked, ready for judgment. The incongruity of the image of Oscar’s brother, one arm in a plaster cast and clearly incapacitated from a bad car accident he had been involved in weeks earlier, contributed to the surreal nature of the entire picture and the almost circus-like atmosphere at play in and around the High Court in Pretoria.
Outside, a fried-chicken stand did a roaring trade to international journalists who had jetted in for the big story. A woman with a quirky tulle hairpiece held up a painted banner reading, ‘Oscar you were, you are, will always be inspiration, a HERO.’ Another, advertising herself as Mrs United Nation Limpopo, clutched a large poster featuring newspaper clippings of herself with rhinos, alongside pictures of Oscar and Reeva. A drunk Afrikaans-speaking man in khaki and a red hat danced with ANC members in yellow overalls
parading signs calling for Oscar to rot in jail if found guilty. We had gone down the rabbit hole and emerged into this madness.
Inside, the extended Pistorius clan packed into the front row – aunts, uncles, cousins, doting sister Aimee and father Henke, panama hat in hand. Barry and June Steenkamp sat in the same row on the other side of the courtroom, flanked by their advocate and, as usual, members of the ANC Women’s League; Barry’s brother Mike and his wife had joined the family for the first time, making this the biggest Steenkamp showing since the start of the trial. The Myers family sat a few seats away. Darren Fresco paced anxiously up and down; his wife, in a short leopard-print dress, sat in the Steenkamp camp. Marc Batchelor, his peroxide hair gelled to a peak, sat in the back benches. The court orderly, responsible for announcing the judge’s entrance, manned the front door. The feisty prosecutor, the calculated defence counsel, the team of forensic investigators, the clerk, the stenographers, the journalists who had been following the twists and turns of the case: all the characters were in place, bar one …
A mere two years earlier the Blade Runner had been paraded on the global stage of the Olympic Games, an icon who had overcome adversity to inspire and be lauded worldwide.
It was for a different reason that Oscar was now walking through the media, four rows deep on either side, spilling over with onlookers and journalists and their cameras on ladders, into the courtroom to face judgment in his murder trial. He strode through the pack, his game face on, the image of concentration – a flashback to him on the track moments before the starter’s gun fired.
Escorted by his ever-present entourage of familial bodyguards, Oscar stopped to greet various relatives. However, his focus was clear as he headed to the wheelchair and Carl, making for the brother who had been by his side throughout his life, and who had not allowed time in intensive care to prevent him from witnessing this momentous event.
