One Tragic Night (38 page)

In De Oliveira's trial, the court rejected his defence and he was convicted of murder. He appealed the decision and the ruling by Judge Smalberger set out the principles of putative private defence – the defence that Oscar Pistorius is likely to rely on too:

The case of former Springbok rugby player Rudi ‘Vleis' Visagie is potentially a perfect example of putative private defence.

Early on a Sunday morning in 2004, Visagie and his wife Frieda were asleep at home on their plot in Maggiesdal, outside Nelspruit, when his wife woke up and shouted that someone was stealing their daughter Marle's car. The vehicle was being driven out the gate.

Visagie took his gun and shot at the car, hitting the ‘thief' in the head. But then, on further investigation, the Visagies were horrified to discover that the apparent thief was actually their daughter. She had been driving her own vehicle
and was on her way to surprise her boyfriend for his birthday. Marle was rushed to the Nelspruit Mediclinic with a head wound but was declared dead on arrival.

‘There appears no basis on which to suspect that Visagie knew, or had the slightest idea, that it was his daughter driving the car. As such, this appears to be a perfect example of putative private defence being a valid defence to a charge of murdering his own daughter. Although Visagie was not entitled to resort to lethal force in the circumstances, he mistakenly believed that he was entitled to do so. Thus he intended to act lawfully, and could not be convicted of murder,' explains Professor Grant. ‘It is arguable whether his conduct was reasonable and it is possible that he may have been convicted of culpable homicide. Nevertheless, the NPA [National Prosecuting Authority] declined to prosecute, taking into account the gravity of the tragedy and that living with what he had done would be its own punishment.'

In 2012, Glenn Boshoff of Centurion shot his eight-year-old daughter through a closed bedroom door, thinking she was an intruder. When burglars broke into the family's home in a secure complex, Boshoff was awoken by his dogs barking and went to investigate. He apparently saw an armed intruder at the bottom of the stairs and another climbing through a window. Boshoff grabbed his revolver out of the safe. In the meantime, eight-year-old Edith had woken up and made her way to her parents' bedroom. As she turned the handle of the door, Boshoff fired a shot, thinking she was an intruder trying to get in. It was only when he opened the door that he discovered his daughter. The six intruders fled the scene and Edith was rushed to hospital in a critical condition where she died.

Other similar cases have been reported in the media over the past few years and if Oscar's version of events is indeed true, he is not the first person to suffer such a tragedy.

In Oscar's case, assuming the state does have a case strong enough to prove murder, he would have to raise a believable defence of ‘putative private defence'.

‘What putative self-defence says is that, simply put, the law will not punish you if you made a genuine mistake of verily believing that you were entitled to a defence excluding unlawfulness, but actually in reality you were not entitled to that defence because in reality there was no threat to your life. But if all the surrounding circumstances of the killing are looked at, it is clear that your mistake is one that is reasonable, then you lack “intention” and you cannot be convicted of murder, but also your actions were not negligent because your apprehension of imminent danger and your actions to ward it off were reasonable in those circumstances,' explains Maseko.

In 2010, Goodness Mchunu and two accomplices were charged with murder,
attempted murder and arson after she attempted to set fire to her boyfriend's shack in revenge for him having a wandering eye. Goodness, a resident of Lidgetton in KwaZulu-Natal, set fire to the shack but her boyfriend wasn't there at the time. She fled when she realised she had ‘burnt the wrong people', those inside the residence at the time of the incident. One man was killed and another escaped with burn wounds. Neither of these was her boyfriend – the target of the arson attack arrived home to find his shack in flames.

In this case, it was her aim and object to kill her boyfriend so there is direct intention (
dolus directus
) regarding the murder charge. There is indirect intention on the arson charge (
dolus indirectus
) – her aim and object was to kill her boyfriend, but by setting fire to his dwelling she foresaw the destruction of his dwelling by fire as a substantially certain outcome of pursuing her aim and object to kill.

‘This case is also an example of the rule of law
“error in objecto
” (mistaken identity), which is the state's alternative argument in the Pistorius matter. That is, a mistake as to the identity of the occupant of the shack will not be a defence to a murder charge – when she set fire to the shack she intended to kill the person inside the shack, though she was mistaken as to the identity of the person,' explains Phelps. ‘The major difference between this case and Pistorius's is the putative defence. He is not arguing mistaken identity but mistaken belief in self-defence. This is what the judge will need to reconcile and the parties will need to argue.'

The problem Oscar faced with putative private defence is that the court has to be convinced that he genuinely believed his life, and or that of Reeva, was in danger. That is why the state dedicated a great deal of time leading evidence to show that it was unlikely and improbable that Oscar could have genuinely believed that it was an intruder behind the door.

‘As to the question of whether, on Oscar's own version, he believed it was an intruder behind the door and he fired shots because he believed his and Reeva's lives were in danger, assuming that it was an intruder behind the door, would it have been reasonable for him to fire four shots at someone he didn't know was armed, that is, he hadn't assessed the extent of the danger (if any) to himself or Reeva. Is that a reasonable reaction? Can it be said that the action taken to ward off the attack was commensurate with the attack? These are questions that will be argued by both counsels to different ends and the court will ultimately have to pronounce on these questions,' describes Maseko.

In essence what the defence is saying is that Oscar genuinely believed that Reeva was in bed when he approached the toilet door and that he was convinced
someone – an intruder whose motives he couldn't have known – was inside the house and in the toilet. He was fearful because it was dark and he couldn't have known what the next action of the intruder would have been. He approached the door to investigate and when he saw that it was closed and heard a noise, he fired, because – presumably – if he hadn't he could have been fired at.

‘It is not a bad argument except that the factual basis of that defence had to be laid by Oscar himself,' says Maseko. For this reason, Oscar was left with little choice but to testify. His defence would also be at pains to show how vulnerable and fearful Oscar is and just how aware of security he is.

In order for the state to prove its case of premeditated murder, it has to show that Oscar Pistorius planned the murder of Reeva Steenkamp. It has to prove that he planned intentionally and unlawfully to kill another human being. For premeditated murder, the state has to present the court with a motive for the murder. It would be difficult to prove premeditation without establishing a motive and showing the court what might have driven Oscar to set in motion the deliberate actions that led to the killing.

‘If the court is of the opinion that the state has not proven beyond reasonable doubt that the act of killing the deceased is one that the accused considered and had the opportunity to bail out of, but did not, then if all the elements of murder are proven beyond a reasonable doubt, the accused will be found guilty of murder,' explains Maseko. ‘If the court finds that the state has failed to prove murder either because it accepts the accused's version that he lacked intent in that he genuinely believed that it was an intruder in the bathroom, the court will have to go a step further and determine whether his actions were not negligent, that is, would a reasonable man in the shoes of Oscar Pistorius faced with the same circumstances have reasonably foreseen that it may be Reeva in the toilet and not fired? This entails looking at all the surrounding circumstances, such as the time of the night, the interaction between the accused and deceased prior to the shooting, the duration of the whole thing, the sounds the accused allegedly heard, security at the estate, and all the other actions that the accused could have taken such as to flee, etc.'

Against a charge of murder, the defence must show that Oscar was genuinely mistaken in respect of every requirement of private defence. On a charge of murder, the defence is judged subjectively – by what the accused was actually
thinking. To escape a conviction of culpable homicide, Oscar has to show that his mistake was reasonable, that he genuinely believed he was under threat, and this will be judged by the reasonable person test.

‘Remember, the defence doesn't technically have to
prove
anything; it simply needs to raise reasonable doubt,' emphasises Phelps. ‘The burden to prove its case rests on the state in all criminal trials. To lay a foundation for the putative defence, Pistorius's team needs the judge to believe that he genuinely thought his life was in danger and that he was responding to protect himself and his girlfriend. Evidence of his fear of crime/objective safety issues provides an air of plausibility to his version of events. In other words, if the court accepts that he was genuinely fearful of crime/for his safety then it could assist the court in accepting that he genuinely, though mistakenly, believed there was an intruder in the house on the night in question.'

The judge has many decisions to make. Some of these will turn on the her opinion on the credibility of Oscar's testimony. The judge also has to make a judgment call on the gun-related counts, in addition to the murder charge.

There will inevitably be doubts as to the guilt of the accused on any of the charges, but it is up to the court to decide whether or not these doubts are reasonable. The judge will decide whether the state has met its burden of proof and proved its case for each of the charges beyond a reasonable doubt.

After weeks of sweltering heat in the capital city, the rain swept in and fell relentlessly, at times in violent sheets, at others in a persistent drizzle. Like the hundreds of journalists who had flown in from around the world to claim their seats in the courtroom, the storm parked itself at Madiba Street and didn't leave for at least the first week of the trial.

Taxis barrelling down the road outside the High Court in Pretoria threw up waves of water on to the pavements where rows of outside broadcast vans had been stationed, satellites on their roofs at the ready. Presenters dressed in suits and jackets hoodwinked their viewers, their legs below the camera shot comically wrapped in plastic bags to keep them dry.

Across from the Palace of Justice, on Palace Street, metro police officials kept a close eye on the traffic. Newspaper vendors peddled their broadsheets previewing the trial, with the headline of the local
Pretoria News
reading ‘Oscar's Date with Destiny'. The mezzanine veranda at the post office facility across the road from the courthouse had been hired out to eager broadcasters looking for an elevated position, and it was jam packed with gazebos, camp chairs and camera tripods. The media pack, both local and foreign, had just emerged from arguably the biggest breaking news story in the history of the new South Africa, the death of former President Nelson Mandela. Some had even hung around in the country in anticipation of the next big story: the Oscar trial.

Dodging raindrops, a lone drone buzzed in the sky, its operator searching for the perfect shot of the accused arriving at the courthouse. It was 3 March 2014 and Day One of the Oscar Pistorius murder trial.