One Tragic Night (35 page)

How would Reeva have spent her 30th birthday? Gina says her ‘Alfie' had big plans. ‘She was going to Vegas for her 30th. One of our friends was getting married there and it was going to be, it was going to be a big year,' she says excitedly. ‘You know, life carries on and you can get swept away and then you get those real moments when you realise that she's not coming back and you are going to have to spend her birthday without her.'

There was an underlying frustration for the Myers family that Reeva's birthday could be overshadowed by Oscar's court appearance, but Gina stressed that it didn't have to be that way.

‘I think it's a choice. I think that if you want it to be about Reeva it will be. I know that every single person who loved her and cared for her and every single person she had an impact on; she gave talks to schools, she was becoming a big celebrity and she was doing well in her own career. And everybody she came into contact with, they will be remembering her and for us – we will be celebrating her. And for a lot of people it will be about her. It's a choice.'

Gina spent part of Reeva's 30th birthday in the public gallery of a court, a location she could never have predicted. Gina, Kim and Desi sat in the front row, an arm's length from Oscar and just a few seats from his sister Aimee. Dressed in funereal black, they stared as Oscar, Aimee and Carl silently held one another's hands and prayed as the commotion of photographers played out around them.

Reeva's boyfriend stood in the dock as the accused, wiping away tears and blowing his nose as he was formally served with an indictment containing the most severe count: the charge of murder for killing Reeva Steenkamp.

With the packed courtroom hushed, Magistrate Nair set down the trial to run from 3 March until 20 March 2014 at the High Court in Pretoria. When asked by Nair if he was well, Oscar quietly replied, ‘Under the circumstances, Your Honour' – but as proceedings were postponed, the BBC's Andrew Harding tweeted that he had shaken the athlete's hand and asked how he was. Oscar apparently shook his head and mouthed, ‘Not good.'

Less than an hour after the hearing ended, Carl Pistorius tweeted a photograph of Oscar and Reeva along with the words:

With the release of the charge sheet and the witness list, the strength and strategy of the state's case was revealed. When he went on trial on 3 March 2014 in Pretoria, Oscar Leonard Carl Pistorius was to face four charges: murder and three separate counts on the contravention of the Firearms Control Act. Signed by the Deputy Director of Public Prosecutions for Gauteng North, Advocate GD Baloyi, the sheet contained details of the charges against Oscar and alternative charges on which he could be convicted:

The indictment also contained seven points listed under a summary of substantial facts, which outlined the essence of the state's case:

Attached to the indictment was a list of 107 state witnesses who the prosecution could potentially call to give evidence during the trial. Only once the prosecution had closed its case, could the defence legal team consult with those witnesses who had not been called and potentially secure them as their witnesses.

This list contained a litany of Oscar's neighbours from the Silver Woods estate, a large contingent of police officers and forensic experts, several of Oscar's friends and ex-girlfriends, Reeva's friends and some colourful characters with whom Oscar had previously had run-ins. These included footballer Marc Batchelor, several members of the Myers family, boxer Kevin Lerena, ex-girlfriends Melissa Rom and Samantha Taylor, and Samantha's mother Trish, Justin Divaris and Samantha Greyvenstein as well as numerous members of Oscar's own family.

Now that the defence was aware who the state intended calling and the strategy it would be adopting, it could retain the services of its own expert witnesses. The defence also hired The Evidence Room, an American forensic animation firm based in Cleveland, Ohio, that specialises in recreating crime scenes. Founded by 43-year-old CEO Scott Roder in 2003, the company reportedly works on 100 cases a year and can charge as much as US$10 000 per video. In the run-up to the trial, Roder spoke to
Time
magazine, with the magazine describing the videos as ‘Pixar meets murder trial: illustrating car crashes and murders with faceless cartoons of people in jagged geometric landscapes.

‘We don't give opinions, we don't say “this is how it happened”, we describe the scene,' Roder told
Time.
‘That's our job: to help people understand the bigger picture.'

The defence continued to work with University of Pretoria forensic geologist Roger Dixon and firearms and ballistics expert Thomas ‘Wollie' Wolmarans. Forensic pathologist Reggie Perumal, who was retained by Oscar's team on the day of the shooting, was believed to still be working with the defence.
Time
also reported that a US forensic scientist famous for testifying in the OJ Simpson
murder trial was asked to join the team, but this was never confirmed by the defence.

But as much as the legal teams were preparing for the forensic battle that lay ahead, the broader belief was that the trial would turn on technical legal arguments. Researcher and author Antony Altbeker, who has written numerous books about policing and criminal trials in South Africa, believed that the outcome of the case would come down to the law. ‘The big point about Oscar's matter is that we know who did it, we have his version and there's no mystery about who killed Reeva. So the big questions are ultimately going to be legal questions. I don't think the forensics will matter an enormous amount. The only way the forensics will
really
count in this trial, I think, is if there's any part of them that undermine his credibility, where he has said x and the forensics show y,' said Altbeker before the trial started.

Johannesburg-based criminal attorney Tyrone Maseko shares Altbeker's view on the weight of the forensics versus the importance of the law in this trial. ‘In murder cases forensics can be very important; however, in this case I do not believe that they are determinative for the reason that Oscar admitted killing Reeva. Therefore the central questions become factual and legal. Insofar as some of the questions being factual, the forensics can be of assistance to the court in the sense that the court still needs to enquire into the reasonable possibility of the accused's version of events,' says Maseko.

With a selection of the most brilliant and highly respected lawyers in the country set to spar against one another on such a publicised stage, it was inevitable that the law would be the battlefield on which they would cross swords.

South Africa has a legal system as diverse and textured as its population. It is a meld of the customary law system inherited from indigenous African cultures, a civil law Roman-Dutch system from the original Dutch settlers who arrived at the Cape of Good Hope in the seventeenth century and a common-law system from the British who colonised a chunk of the country from 1910 to 1961, when it was known as the Union of South Africa before becoming a republic. In 1994, at the end of apartheid, South Africa adopted a groundbreaking interim constitution that was formalised in 1997. While the law is hybrid, and the Roman-Dutch system is the bedrock, broadly speaking the law governing criminal acts follows the English model.

The court system in South Africa is organised in a hierarchy from the Magistrates' Courts at the bottom to the High Courts in each division of the country, a Supreme Court of Appeal in Bloemfontein and the Constitutional Court in Braamfontein, Johannesburg, which is the highest authority in both constitutional and non-constitutional matters.

Criminal trials are officiated over by a presiding officer, such as a magistrate or a judge. South Africa no longer has a jury system after it was abolished in 1969.

When South Africa abandoned the jury system, the jury was replaced with a system of assessors. The judge can request to be joined by one or two assessors who, like a jury, help in deciding questions of fact, leaving questions of law to the judge. Assessors are usually either experts in a particular field under scrutiny in a case or advocates, magistrates or legal academics. In this way, specialist cases are dealt with by specialists in a particular area.

Legal experts are of the opinion that a judge is unlikely to be manipulated and/or corrupted in some way. As a result, the concept of a ‘mistrial' does not exist in South African law. It is the judge's responsibility to apply the law of the land and follow due process, as well as to ensure that the accused is given a fair trial. The decision of a magistrate or judge is open to a review process, which could see a case travelling up the hierarchy of courts over a period of time as lawyers seek to establish whether or not an alternative presiding officer would find the same result.

South Africa also subscribes to what is known as an ‘adversarial system' or an ‘accusatorial model' of criminal procedure, which sees lawyers for both the prosecution and the defence being allowed the opportunity to cross-examine a witness while the presiding officer remains impartial, playing the role of referee or arbiter.

Wits criminal law associate professor James Grant describes how this works. ‘An adversarial system is characterised by an impartial passive adjudicator who decides on the case put before him or her by the two parties to a dispute. The role of lawyers in this system is to make the best case possible for his or her client. In an inquisitorial system [a modern example of which is France], the adjudicator remains impartial, but adopts an active truth-finding role. Lawyers in this system assist the adjudicator in finding the truth. In South Africa, while our system is primarily adversarial, our judges are allowed to ask questions of witnesses for clarification, and may even go so far as calling their own witnesses.'

Judges don't get involved in assisting either side and it is up to both parties to prove their case. ‘They do not “descend into the arena” and ask questions or
procure evidence that is designed to assist any party in the proceedings. The parties themselves bear the onus of making their case or defence to the presiding officer and he or she merely arrives at a decision at the end of the proceedings,' adds Maseko.

He explains that cross-examination in a criminal trial such as the Oscar Pistorius case sees lawyers interrogating the evidence of any witness called by the opposing side, with the view of discrediting the evidence presented by the witness. ‘This can be done in one of two ways, either by demonstrating to the court that the witness's evidence cannot be relied on because it is factually inaccurate. This can be done by getting the witness to concede that their recollection of events is not good or accurate and/or presenting to the witness evidence, documentary or otherwise, which is more reliable and which evidence contradicts the witness's testimony before court and asking the court to draw the necessary inference. Another way in which counsel can discredit a witness is by subjecting them to intense cross-examination with a view to exposing them as a liar. This is dangerous for any witness to do as he or she can be charged with perjury.'