Oscar Pistorius: NOT a case of white privilege

Dawie Jacobs

2016-07-07 at 13:05

My final thoughts:
1: Although I am of the opinion that the first conviction and the sentence were the most appropriate given the proven facts, I accept the final outcome and will not be part of further post mortems on this case.

2: I admire Judge Masipa that kept her head when all around her were losing theirs and blaming it on her.

3: I have admiration for Barry Roux and his team for the way in which they handled this case - they did the legal profession proud.

4: Judged by how comparable cases were dealt with, I have no doubt that if this case was not about Oscar Pistorius the charge would have been culpable homicide, if at all, and the hearing a maximum of a few days.

5: Given my experience in court in my first career and also in postings around the world, I did not believe it possible that I could still be so utterly disillusioned by the manner in which the state, the media and society dealt with a fellow human being in a so-called civilized world. The clock was turned back to the dark ages in this most unusual case where a man was made a scape-goat for a multitude of wrongs in a society.

6: My heart goes out to this fallen icon and both families affected by this immense tragedy, who must now put their lives together and nurse the deep scars left by this inhumane battle fought before the cameras of the world.

Whatever happens in future will not change my deep disappointment in a society that ruthlessly turned on its own and became pawns in a game directed by the state, the media, politicians and revengeful individuals.

As I have said before, the way this case was dealt with is an indictment against mankind and a reading of what society we have become.

However, I conclude on a positive note by expressing my admiration for those individuals in the legal profession and the media whose souls are not for sale and who made their voices heard against the tide of popular opinion. Also other voices of reason from within society that went up right from the start against this travesty of justice based on their inner convictions and strong sense of fairness and justice. Bad things happen when good people remain silent.

Oscar Pistorius A Case of Non Preferential Treatment

29 October 2015, 09:14

Oscar Pistorius A Case of Non Preferential Treatment.

A sad feature of South African society is the high instances of people being killed or seriously injured during home invasions.

It is therefore not surprising that there are incidents of intruders killed and sadly also family members killed mistaken for intruders. However the impression created by the State and media is such instances must be rare and that Oscar was somehow unique in both believing there was an intruder and fearing an intruder. What is also unique in this case is how, at each step, Oscar is apparently viewed and treated differently to other similar cases and certainly has not been given anything that could be considered preferential treatment. The media have taken every opportunity to argue erroneously that he is somehow privileged that the verdict, judgment, his incarceration in the hospital section of the prison, his release to house arrest was further evidence of his preferential treatment. The media have embellished reports with sensationalist fabrications that infects and spreads like a virus throughout the media world. Thus reports that a hard drive was found in his cell became something illegal found in his cell and few reported the truth that it contained TV programmes he was given written permission to have. The Press Ombudsman recently ruled in his favour against media sources claiming he was given privileges in prison. The same media sources earlier reported that a gang leader in the same prison made death threats against Oscar should he be given preferential treatment.

The media circus continues to play into the Hands of the State, it allows them to justify their actions when in fact they have singled Oscar out in their desire to win the case at any cost. It has allowed them to justify their appealing the case when no other similar case has ever been appealed. It favours the voices of political groups such as ANCWL who not only have interfered politically in this case but have done so unabated with no comments from the NPA or State as to how inappropriate and unethical their involvement in the case is. The State has done nothing to halt such organisations from undermining the Judicial System and assuming a position and stance that they are above the Law, that they know better than the Judge and her assessors. The States silence in fact condones this position and in doing so it undermines it's own authority.

If one looks behind the façade of sensationalism that has been allowed to flourish, what is revealed is the antipathy of preferential treatment. In every aspect of the case the treatment Oscar Pistorius received, displayed a practice of bias intervention which singled him out for unique treatment within the criminal justice system which saw both political interference and political commentary at each stage in the case. Prior to the commencement of the case the application for television rights was granted despite the expressed opposition from Oscar’s legal team. The idea of educating a nation to the judicial process, a demonstration that Justice was Justice regardless of ethnicity, wealth or fame was seen as more important than the expressed views and rights of the individual. The televising of the trial, the media desire for sensationalism and fabrication resulted in death treats been made against Oscar. Subsequent applications for televising other trials most noticeably Dewani were refused on the grounds they would prejudice the accused. Had Oscar’s trial been a successful integration of the rights of the accused person coupled with the media coverage there is no doubt that subsequent applications for televising trials would be approved. A media channel was given permission to come into existence for the sole purpose of covering and commenting on the trial. A channel whose panel members were so predominantly pro State that Nel himself could have hand picked many of them. In fact he did pick an associate professor from the channel to work on the appeal.

The decision to revoke Oscar’s already approved release to house arrest in August was yet another example of how he was being treated differently to others. In June, the Minister of Correctional Services stated that he did not intend, at that stage, to appeal Oscar’s release to house arrest. In July 2015 the same Minister set up a task force to evaluate the parole process. If the timing of the consideration for release was an issue, why did he not revoke all releases in July when the task force was established. What also seems strange is the Minister’s decision regarding the timing of Oscar’s release. This was made prior to the conclusion of the report he commissioned. In establishing the task force the Minister stated that a new framework was needed to manage parole in SA. Although the preamble of the report was to look at certain aspects of the parole system, the timing of consideration for release in relation to time spent did not appear to be one that weighed sufficiently on the mind of the Minster to include it in the review. The timing of the decision to release Oscar predated his addressing the Parole chairpersons and vice chair persons and it would appear that neither Oscar’s approval for parole or the timing for consideration for release was considered an issue at the time. The Progressive Woman’s League who orchestrated the petition to halt Oscar’s release effectively elected themselves to act as Judge in the case and by referencing the petition the Minister gave credence to such actions. It is also concerning how this erroneous assumption that this case is about violence towards women despite the lack of evidence and verdict to the contrary has been allowed influence such major decisions. One also in my view has to question how appropriate it is to inform someone they would be released only to revoke this 48 hours or so before they are due to be released.

The HOA in the States appeal reads like a retrial. It's assertion the Judge made an error in judgement seems based on the premise that the only verdict acceptable is the verdict they want. However the States case that Oscar intentionally killed Reeva simply isn’t there. It relies on accepting the least probable inferences from the evidence, relying on testimony that was flawed and failing to call key witnesses. Essentially the State feel the SCA should accept that Oscar intentionally killed Reeva based on an argument that one woman heard 177 metres away, which was predominantly a female voice speaking a language and in a location she couldn't identify, while the security guard walking outside the house and in the near vicinity heard nothing. The State also wish to connect this so called argument with the pathologist’s testimony as to the timing of the last meal. This testimony however also concluded that determining the timing of the last meal from stomach contents is not an exact science and there are many variables that will affect digestion rates as well as a wide time frame. Reeva was not fully dressed as Nel claims, she was not wearing under wear and was dressed in typical night attire. Such attire would be strange if the couple were eating as the State claim. Oscar’s house was clearly searched by the police when they arrived, photographs were taken later that morning. Yet the position of the fans and duvet would have prevented the police searching the balcony, something they would have undertaken as part of their investigation. The evidence points to Oscar having mistaken Reeva for an intruder therefore it was a tragic mistake.

What the media coverage of the case has persistently ignored is the number of people convicted of similar offences to Oscar who receive non custodial, suspended sentences. In one case a home owner shot and killed a man on his roof he believed to be attempting to burglar his home. The man shot in the direction of the deceased killing him. Again the charge was CH and a sentence of 7 years suspended for 5 years was given. The man served no jail time. In cases where home owners killed an intruder the verdict was invariably CH and there was no appeal. There was no discussion about Dolus Eventualis and no debate that shooting in the direction of a person equates with an intent to kill. In fact the Judge in the above case said that 'killing the victim didn't mean he did the right thing but it could happen to anyone'

Another case is that of a man who mistook his pregnant wife for an intruder and shot her. The man was in bed with his wife when she got up to use the bathroom. The husband was convicted of CH and given a suspended sentence. Again the legal principle of Dolus Eventualis featured nowhere in the case. Yet shooting a person at point blank range without ascertaining who they are, can and was in this case as likely to result in death as shooting through a door four times. It was never determined what his intentions were regarding the perceived intruder.

In 2004, Rudi “Vleis” Visagie, a well-known rugby player, mistakenly shot and killed his daughter. She was driving out of the family home in the early hours of the morning. Visagie saw the car and mistakenly assumed it was being stolen and, without checking, fired a shot at the driver, killing his daughter. The NPA decided not to prosecute this case, believing that the tragic loss of his daughter was sufficient punishment. In considering this case what I can't help but question is applying the same principles that the State applied to the death of Reeva namely what were Visagie’s intentions towards the car thief. He couldn't claim his life was at risk as the car was being driven away from his house. The gun simply couldn't have gone off and using the logic of Masipa he intended to use the gun. Visagie was trained, he needed to be to have a gun licence. The striking difference was that the charges were dropped because it was felt that he had suffered enough and was done for compassionate reasons.

This same compassion has been absent from Oscar's case. In both cases Oscar and Visagie were responsible for the death of someone they loved. The distinction is in Visage’s case the State recognised the mental pain Visagie was going through, the trauma and utter despair he felt. How he would have to live with the consequences of his actions each day for the rest of his life and the State responded to his pain with compassion. Oscar too experienced that same pain, despair, trauma at having to live with how his actions caused the death of someone he loved and cared about for the rest of his life.

The State however responded by allowing a Media circus which they initially orchestrated to grow and develop unchecked. The Judiciary permitted the televising of the trial and did nothing to prevent the media from fabricating and sensationalising what was in essence a very sad and tragic human story. There is an inherent difference between freedom of the press and creating fictitious stories to increase sales. While Visagie was never charged, in Oscar’s case the State continue to fight to obtain a murder conviction. The State in pursuing DE in relation to an intruder realise that such a conviction would prove Oscar did not know it was Reeva. The State persistently and unashamedly fail to accept that believing it was an intruder would be alarming and terrifying for a person with such a significant disability as Oscar's. The State also fail to acknowledge his loss, the grief he experienced, the guilt he must carry on a daily basis and want him incarcerated for 15 years. They argue that this is Dolus Eventualis despite accepting in all other cases of intruders being killed the verdict is CH. They appeal a competent verdict despite never adopting this practice in similar cases. In fact this is the only case in Nel’s entire career he has appealed. Such practice has little to do with justice but far more in my opinion with a desire for vengeance and revenge.