One Tragic Night (41 page)
Authors: Mandy Wiener
While Masipa is a driver for transformation and change in the legal fraternity, she takes issue with the pace at which it occurs. She's critical of the lack of support there is for female judges who have to take care of children and their families. She lists this as one of the reasons there are so few female judges.
Judge Masipa and her husband live in Midrand, between Kyalami and Leeuwkop. Both her parents have passed away; her dad died just after she
qualified as a lawyer and her mom soon after she had been appointed to the bench. She has also lost one of her two sons, who died from a stroke when he was 21. Her surviving son is married with three children and she dotes on her grandchildren, even though she struggles to fit time with them into her schedule. She also financially supports a crèche and a women's beading project run by her sister.
Unassuming, quiet and reserved, Judge Thokozile Masipa was thrust into the media spotlight in a way almost no other judge had been in the history of the country's courts. Her every move was under intense scrutiny and her resolve would be tested as the former crime reporter and social worker made a determination on whether or not the country's one-time golden boy had committed murder.
Following the court orderly's instructions, all those in court rose. Judge Masipa slowly and stiffly made her way to her chair, followed by her two assessors. Advocates Nel and Roux each took turns to stand and introduce themselves and their teams, before Masipa dealt with housekeeping issues. The first of these was to swear in her two assessors.
Janette Henzen-du Toit became an advocate in 1998 and was admitted to the Pretoria bar and the bar in the North West province. She has worked for the Legal Aid Board and as the High Court unit manager at the Johannesburg Legal Resources Centre. She first sat as an assessor in 2005 and also has experience as an acting judge. She is studying for her doctorate in criminal law, criminal prosecution, law of evidence and constitutional interpretation.
Less is known about Themba Mazibuko, who was admitted as an advocate in July 2012. In the Afrikaans newspaper
Rapport
, Herman Scholtz reported that Mazibuko is considered a rookie in the legal fraternity. Before being admitted as an advocate, he owned a construction company as well as a hair salon in Soweto. In an earlier interview, Mazibuko's mother Pretty told Scholtz that after school her son studied engineering but dropped out, becoming a labourer and ultimately setting up his own business. Years later his career turned to law, and less than two years after being admitted, he was assisting on the most high-profile case in the country. Judge Masipa had appointed Mazibuko as an assessor in the matter she presided over before Oscar's murder trial, so she has worked with him previously.
It is the judge's discretion to appoint assessors and they are generally experts in a particular field into which the case delves. They can only assist with matters of fact and not law. For instance, if there is a dispute over the colour of a getaway
car, they could overrule her, but they could not overrule her on interpretation of the law. Criminal law lecturer Kelly Phelps explains: âThe judge can request to be joined by 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 that is under scrutiny in a case (for example, a fisheries experts in a case dealing with the fisheries industry) or advocates, magistrates or legal academics. In this way specialist cases are being dealt with by specialists in that area.'
Once the assessors had been sworn in, Nel was up on his feet again and read aloud the four counts that Oscar Pistorius would have to answer to in the trial. Oscar stood as they were read out and four times the judge asked him to plead. The exchange was exactly the same each time:
| Court: | Do you understand the charge? |
| Accused: | I do, My Lady. |
| Court: | How do you plead? |
| Accused: | Not guilty, My Lady. |
| Court: | Thank you. |
Then defence advocate Kenny Oldwadge stood and read Oscar's plea explanation into the record:
In the High Court of South Africa, Gauteng Division, Pretoria. Case CC113/13.
In the matter between the State and Oscar Leonard Carl Pistorius, the accused.
Explanation of plea in terms of Section 115 of Act 51 of 1977.
I, the undersigned, Oscar Leonard Carl Pistorius hereby furnish the following explanation of plea with reference to the charges to which I plead not guilty.
First, Oscar â via Oldwadge â addressed the murder charge, offering his explanation of what led to the Valentine's Day shooting. Oscar went into far greater detail than was expected and gave far more information than he did during his bail application just over a year earlier. Some lawyers argued that this was to his detriment â and the prosecution argued this too. They questioned why he had not put this detail into his initial statement and asked whether he was doing this to tailor his version of events. However, the defence approach was that Oscar
had nothing to hide and by putting a detailed version before the court so early on would boost its credibility in the eyes of the judge:
1. In its formulation of this count, the State has contended that I unlawfully and intentionally killed Reeva Steenkamp, hereinafter referred to as Reeva.
2. This allegation is denied in the strongest terms. In fact, at the time of the tragic accident which led to Reeva's death, we were in a loving relationship.
3. Whilst I admit that I inflicted the fatal gunshot wounds to Reeva, this occurrence was indeed an accident in that I had mistakenly believed that an intruder or intruders had entered my home and posed an imminent threat to Reeva and me.
4. In my application for bail, I concisely dealt with the events of 14 February 2013. I am advised that I will have an opportunity to deal with a comprehensive version of the events when I testify. For purposes of my plea explanation, I emphasise the following:
4.1. During the early hours of the morning I brought two fans in from the balcony. I had shortly before spoken to Reeva who was in bed beside me.
4.2. Unbeknown to me, Reeva must have gone to the toilet in the bathroom, at the time when I brought in the fans, closed the sliding doors and drew the blinds and the curtains.
4.3. I heard the bathroom window sliding open. I believe that an intruder or intruders had entered the bathroom through the bathroom window which was not fitted with burglar bars.
4.4. I approached the bathroom, armed with my firearm so as to defend Reeva and I. At that time, I believed Reeva was still in the bed.
4.5. The discharging of my firearm was precipitated by a noise in the toilet which I, in my fearful state, knowing that I was on my stumps, unable to run away or properly defend myself physically, believed to be the intruder or intruders, coming out of the toilet to attack Reeva and me.
Oscar then moved from a defensive stance into attack mode:
5. I respectfully believe that the State has no basis whatsoever for alleging that I wanted to take Reeva's life. I will demonstrate hereunder
that notwithstanding the fact that all the objective evidence will corroborate my version of the events, the State has embarked on a strategy to rely on unsubstantiated allegations in an endeavour to prove that I wanted to kill Reeva.
6. The strategy was also employed at my bail application. I will hereunder concisely deal with some of the material aspects to support my contention herein.
7. At my bail application the State inter alia contended that I had deliberately shot Reeva whilst I was positioned at a distance of about 1.5 metres from the toilet door and whilst I was standing on my prostheses. The allegation with reference to 1.5 metres and me wearing my prostheses was clearly designed to suggest that I had pursued Reeva to the toilet and that I therefore knew that Reeva was in the toilet. Thus, that I did not entertain any fear at the time when it is alleged that I entered the bathroom.
Oscar then went after the state's use of neighbours' testimony, which was likely to be the backbone of its case.
8. The State has also by means of the evidence of the then investigating officer, Hilton Botha, sought to rely on a statement by a witness who I am told is a certain Estelle Van der Merwe, who claims to have heard what sounded like a woman's voice prior to the shooting, talking nonstop, like fighting. The witness did not say that the alleged talking came from Reeva, nor that the sounds so mentioned emanated from my house.
9. The statement, it would appear, offers an opportunity for the State to contend at the bail hearing, that âthere may â¦' â and this is a quote, My Lady â â⦠there may have been an argument between the applicant and the deceased and the evidence might point in that way'.
This witness has since deposed to a further statement which materially contradicts her first statement. In the further and better particulars, the State disavows reliance on the first statement. The State has also conceded in the further and better particulars, that they are not aware of any of the detail regarding (the alleged) argument and that it may become clear during the trial.
10. Van der Merwe's house is located approximately 105 metres from
my bedroom, with my bedroom and bathroom windows facing in the opposite direction to Van der Merwe's house. It would not have been possible for Van der Merwe to have heard anyone talking from my bedroom, in their bedroom. The State is furthermore in possession of statements by a number of witnesses, including witnesses resident in either the estate where I reside, or in an adjacent estate. None of these witnesses claim to have heard any argument between Reeva and I, nor any woman's voice talking prior to the shooting. Notwithstanding the fact that two of the witnesses (who live in closer proximity to my house than Van der Merwe) were awake at the time when Van der Merwe alleged that she had heard a woman's voice.
Oscar insisted that there was no motive for him to shoot Reeva and dismissed suggestions that â as the prosecution alleged â a fight had led to the shooting:
11. I refer to the above, as the State now alleges in the further particulars provided, that there was in fact an argument between Reeva and I and that I killed Reeva âbecause of the argument'. I am unable to comprehend on what basis the State (at the bail application) could only rely on a possibility of an argument between Reeva and I and now with even less available evidence (by disavowing Van der Merwe's first statement) allege that there was in fact an argument and that I shot Reeva âbecause of the argument'.
12. I deny this allegation and reiterate that there is no justification whether legally or factually for this unfair and incorrect allegation to have been made. The aforesaid allegation is also not supported by any of the statements disclosed to me by the State.
13. Furthermore contrary to what was contended for by the State during the bail application, the State has now conceded that it cannot be contended as a fact that I was about 1.5 metres from the toilet door and that I had my prostheses attached at the time when I discharged the firearm anymore.
Oscar then disclosed his hand and revealed that his legal team would be looking to scrutinise the police's handling of the crime scene:
14. The unfair approach adopted by the State is further evident from the evidence given by Hilton Botha at the bail application whose
evidence will be demonstrated to have been false in material respects. More particularly, that it was designed to falsely incriminate me on an allegation of premeditated murder. It will also be demonstrated during this trial, whilst Botha was the investigating officer and tasked with preserving the scene, that the scene was contaminated, disturbed and tampered with. This feature of the State's case will be dealt with when Botha, amongst others, gives evidence.
Oscar had taken the highly irregular approach of attacking the prosecution's case even before the first witness had been called. It was a bold, high-risk move that could readily backfire. He also pre-empted the state's tactics, warning against the introduction of any evidence that could tarnish his character. Introduction of such character evidence is not allowed in South African law:
15. I have been led to understand that it is unusual to challenge the State's case in my plea explanation to the extent that I do herein. However, I am left with no alternative but to explain my innocence with reference to the allegations levelled against me. The aforegoing will be exposed by having regard to the State's intended approach in this trial. This approach is to not only seek to unfairly draw inferences from purported statements of fact, which are not supported by the objective facts, but also by virtue of the statements disclosed to me by the State, to seek to introduce any admissible character evidence, under the guise that such inadmissible evidence would be admissible, similar fact evidence. To demonstrate that there was an alleged nexus between the (inadmissible) character evidence and the (non-existing) argument which allegedly led to me killing Reeva.
16. I am furthermore advised that as the State is aware of the fact that it has no evidence to prove an alleged argument and in particular in view of the fact that the State has conceded that it does not know what the feature or import of such alleged argument would have been, the only intended purpose of an attempt to introduce inadmissible character evidence would be to engineer and bring about an inadmissible attempted assassination of my character. I am advised that during the conduct of the trial, my legal representatives will object to the introduction of such inadmissible character evidence, on the basis as stated above.
17. I respectfully state that no truthful evidence can ever be tendered
that I fired the shots âbecause of the argument'. I deny this allegation in the strongest terms because there was no argument.
18. The allegation that I wanted to shoot (or kill) Reeva, cannot be further from the truth.
