Chase Your Shadow (24 page)

The five were released after their newspaper agreed to pay a fine. Recognizing Masipa’s talents, the paper’s bosses promoted her to a position previously held only by white journalists, as women’s page editor of
The Post
. From there, she moved to
The Sowetan
, then black South Africa’s leading newspaper, where she was appointed court reporter, an experience that persuaded her to broaden her horizons and study law.

Often studying at night while continuing to work as a journalist and raising her children, she graduated in 1990, the year Mandela was released. Pistorius was then four years old. Masipa, then forty-three, had fought to do away with the racial privilege that the extended Pistorius family symbolized. While she was growing up in a tiny home in Soweto, Gerti Pistorius and her husband were building up the family dynasty, living in a mansion in Pretoria, the citadel of white power.

Now the fates of Masipa and Pistorius were about to meet. On the face of it, this was not good news for the dynasty’s most celebrated son. His defense team’s scrutiny of her record revealed that her judgments in recent trials indicated a harsh disposition towards men whose victims were women. She had handed down a 252-year sentence in May 2013 to a man found guilty on eleven counts of housebreaking and robbery, three of rape and one of attempted murder. In sentencing him to fifteen years for each of the eleven robberies, twelve years for the attempted murder and a life sentence for the three rape charges, she said she was particularly concerned that he had ‘attacked and molested the victims in the sanctity of their own homes, where they thought they were safe’.

In 2009 she gave a life sentence to a police officer who had shot and killed his wife during an argument. ‘No one is above the law,’ Masipa declared. ‘You deserve to go to jail for life because you are not a protector, you are a killer.’

Might it be, some in his family wondered, that Masipa shared the sentiments of those women from the ANC Women’s League, and beyond, who yearned to see an example made of Pistorius? Would she succumb to the pressure of those who believed that gender violence was the key issue here, and that the opportunity should not be missed to send a message to the nation that attacks on women would be punished with extreme severity?

Masipa would no doubt strive to separate her own views from her interpretation of the evidence in the case, but experience indicated that, in the event of a close call, she would be as likely as any judge to be swayed by her personal susceptibilities. As to the color of her skin, would the fact that she was black, and had a history of political activism, be a factor at the moment of reckoning? Pistorius’s defense team feared initially that it would be. They were mistaken.

Masipa had been a beneficiary of her country’s revolutionary changes and her thinking had moved with the spirit of the times. Politically, as legal colleagues testified, she was a moderate. Following the example of Mandela, she, along with the vast majority of black South Africans, had opted to forgive, if not necessarily forget, the sins of apartheid. Reconciliation, rather than revenge, had been Mandela’s prescription for successful democratic change, and the majority of black South Africans had shown a disposition to embrace it.

Such a willingness to reject retribution not just for forty-six years of apartheid but for more than three centuries of systematic racial exploitation was hard to understand for many white South Africans. The explanation, however, lay in a mixture of pragmatism and generous-heartedness among black South Africans, qualities that Mandela did not possess in isolation, but that he embodied.

The pragmatism was a function of poverty. All black South Africans craved the dignity of political freedom, but most were also slaves to the daily urgency of putting food on the table. They wanted the vote, but even more pressing was the need to get by from day to day. In that light, most had the clear-sightedness to understand the reality that white South Africans had a monopoly on the skills required to keep the water and electricity systems running, and that it was they who ran the businesses that provided them with work. Driving the whites into exile – or ‘throwing the whites into the sea’, as the Pan-Africanist Congress and some other radical black minorities proposed – might afford a pleasing short-term satisfaction, but were such a course to be taken, before long the economic consequences would be catastrophic.

When Alan Dershowitz, a celebrated American lawyer who served on the defense team in the O. J. Simpson case, said on CNN on the eve
of the trial over which Judge Masipa would preside that South Africa was ‘a failed state’ and ‘a lawless country’, he was only displaying his ignorance. It was true that the ruling party that Mandela once headed had not been immune to the corrupting effects of twenty years of uninterrupted power, and the administration of the state was often incompetent and lax. Crime rates were high and burglaries were on the rise, yet police statistics showed that between 1994 and 2010 the annual number of homicides had dropped from 26,000 to 16,000. The economy grew year in year out and the poor, who now had far greater access to water and electricity than during the apartheid era, were getting less poor. The average increase in the income of black households between 2001 and 2011 was 169 per cent, compared with 88 per cent for white ones; and though whites still commanded a disproportionately high share of the national wealth, the richest person in the country was a black man. It was possible, by a careful selection of the facts and by setting the bar at Western European or American standards of prosperity, to make the case that the new South Africa had been a disappointment. But the truth was muddled and ambiguous. Things could have gone better but, as examples in the Middle East and elsewhere in Africa showed, they could have gone an awful lot worse.

Don Gips, US ambassador in South Africa between 2009 and 2013, observed that one’s view of South Africa depended on what side of the bed one got out of in the morning. Vestiges of racism remained, especially among older white people, and gross incidents of discrimination sometimes surfaced in the press, but Gips, who was appointed by Barack Obama, noted that ‘the everyday racial atmosphere between black and white is more relaxed in South Africa than in the US’. Afrikaner society was, in the main, more free-thinking than it had been when Mandela came to power and, in the big urban areas at
least, black and white people mixed in bars and nightclubs with an ease that startled foreign visitors primed to think of the country in apartheid terms.

Baffling to outsiders who studied international politics was the fact that all the usual reasons for countries to fall apart abounded in South Africa. In addition to the racial and cultural fault lines, there were religious ones, too, with Christians, Jews, Hindus and Muslims living side by side. Inequality in terms of income and standards of education remained among the widest in the world. Yet South Africa was a stable, politically vociferous country, where there were no limits on freedom of speech, elections were free and fair, institutions such as parliament and the press were solid and, in terms of almost every democratic box worth ticking, ahead of most nations – not least another country that had abandoned tyranny about two decades earlier, Russia.

As to the generous-heartedness that provided the emotional fuel for the peaceful transition, that also derived from the poverty and the day-to-day disorder in which most black South Africans had always lived. They were more accustomed to tragedy, less expectant of tidy or happy endings than their relatively pampered white compatriots. But there was a cultural element to it, too, a disposition to empathize and to forgive, which black parents had been passing on to their children from generation to generation. A mystery, though not unique to South Africa, was how a country with so many people who had the milk of human kindness flowing through their veins could yield such a high incidence of rape and, despite the drop in the murder rate, so many horrific crimes, not just against women but often against children. The conundrum was as hard to decipher as the character of Oscar Pistorius himself.

South Africa was a country of extremes, of rich and poor, and good and evil, living side by side. Pistorius, a kind and considerate
individual given to hair-trigger explosions of anger, exemplified the national schizophrenia. He mirrored South Africa in that he contained much of the best and the worst of the country within him. And he served to illustrate the bigger truth that individuals, like nations, are unfathomably varied and complex, eluding easy definition.

One thing that was certain, however, was that black South Africans displayed a capacity rarely found elsewhere for understanding and forgiving their enemies – helping to explain not only why they had made peace with the whites but also why the ANC had only turned to armed resistance as a last resort, fifty years after its foundation, and why even then the number of civilian victims over three decades was a tiny fraction of the toll exacted in parallel liberation struggles in Africa, the Middle East, Asia and Latin America.

This magnanimous disposition of black South Africans had a name, ‘Ubuntu’, described by one of its most enthusiastic advocates, Archbishop Tutu, as the custom of seeing that ‘a person is a person through other persons’, and that if you seek to diminish others, you diminish yourself. ‘Ubuntu’ was the reigning spirit of the Truth and Reconciliation Commission which Mandela appointed and over which Tutu presided from 1996 to 1998. It was a way to exercise justice that was in keeping with the political circumstances of South Africa at that time and the values that Mandela and Tutu embodied. Rather than pursue retribution, as in the Nuremberg Trials that followed the Second World War, a pact was sought whereby in return for the confession of crimes committed in the apartheid era – confessions made in the presence of the victims or their surviving relatives – the perpetrators would receive state-sanctioned amnesties from prosecution. Over the two years the commission ran Tutu chaired innumerable anguished encounters and ceremonies of forgiveness, as members of secret apartheid-era police units, but also individuals who had killed
on behalf of the black liberation struggle, came forward and made their confessions.

In one especially memorable instance, a notorious assassin in the security police called Eugene de Kock appeared before the commission. De Kock, who had served as a colonel at the head of a state-sanctioned clandestine death squad, had already been convicted of eighty-nine charges, including six counts of murder, and sentenced by a regular law court to 212 years in a maximum-security prison in Pretoria. More killings had been carried out under his leadership that the court had failed to register. He chose to confess to them before the truth commission, even though he had no realistic hope of obtaining a reprieve from jail. His reputation had been such that his own security police colleagues used to call him ‘Prime Evil’. What he confessed to at the commission was his participation in the murders of four other activists, with which he had not been charged. In the presence of a horrified Archbishop Tutu, De Kock gave honest, vivid and gruesome accounts of how he had shot his victims and then incinerated their bodies. He also expressed remorse for his crimes and begged forgiveness of their relatives. They granted it.

De Kock duly went back to his cell to continue serving the sentence imposed by the law that Judge Masipa served, though Tutu might have wished for more leniency. In early 2014, around the time when Masipa was preparing for what was likely to be the biggest trial of her life, Tutu gave an interview in which he spelled out his views on what he regarded as the spiritual limitations of the state’s criminal justice system. ‘There is nothing that cannot be forgiven, and there is no one undeserving of forgiveness,’ Tutu said, adding, ‘We cannot ever say a person is a monster. We can say what they did is monstrous. But once you say someone is a monster you are actually letting them off because a monster does not have moral responsibility. You are also
saying they do not have the capacity to become different. You are saying they are totally and completely lost and you cannot say that of a human being, ever.’

Those principles were harder to implement within the professional world that Judge Masipa inhabited, but as she herself would have noted prior to the Pistorius trial, there existed two significant and possibly relevant legal precedents for dispensing mercy, even when the identity of the killer was beyond dispute.

In one instance, in May 2004 a man called Rudi Visagie saw his car being driven out of the driveway of his home at five in the morning. He fired one shot at the car, killing the driver instantly. The driver was his nineteen-year-old daughter. When the case came to be heard, the judge deemed that Visagie had suffered enough and set him free. Approached for comment by the press ten years later, after the shooting of Reeva Steenkamp, Visagie, who had once been a professional rugby player, sided with his country’s greatest sporting idol. ‘I can tell him, I feel for you,’ Visagie said. ‘You can’t take it back . . . you can’t take that bullet back.’

There was also the case of ‘Bees’ Roux, the rugby player who beat a black policeman to death but received a suspended sentence for culpable homicide, with the approval of the victim’s wife and brother, who hugged him in the prosecutor’s office after the deal was agreed.

It is possible that had the victim been a white South African his relatives would have displayed a similar willingness to understand and to forgive. The response to the killing of Reeva Steenkamp was similarly divided among those who had ‘Ubuntu’ in their ancestral culture and those who did not. And also between those who habitually used social media – who were disproportionately white, because whites had a disproportionately greater access to technology – and those who didn’t.

Random samples of opinion among South Africans in the year between the shooting incident and the trial indicated that the attitude of white people towards Pistorius was more vindictive than that of their black compatriots. ‘Pistorius intended to kill her. Let him rot in jail,’ was the majority white view. The ANC Women’s League, a predominantly black organization, had taken the same position after deciding to use the case in its campaign against gender violence. The Women’s League had a credibility problem, though. They had kept quiet when the country’s ANC deputy president Jacob Zuma was tried for rape in 2006 and then, after he was controversially acquitted, openly backed him in his successful bid for the presidency three years later, overlooking the fact that he was a polygynist with four wives.