One Tragic Night (88 page)

Vorster said Oscar exhibited many features of anxiety and there was a clear history of anxiety in his mother, brother and sister. She said that the encouragement
to behave as a normal child while he was growing up had a significant detrimental impact on his development:

Vorster explained how living this life only compounded the problem. Day after day, it became more difficult to keep his anxiety under control, and as the levels of anxiety increased so would his insecurities about his personal safety. She said this led Oscar to improve security at his house as reports of break-ins and other crime heightened his fear; he was hyper-vigilant, suffered sleep disturbances and would wake up believing there was someone in the house. Oscar constantly looked around, scanning his surroundings for any potential threat, with Vorster describing him as a distrustful and guarded person.

Vorster stated that during their consultation Oscar was asked to take off his prosthetic legs and, while he was embarrassed to do so, he complied. She said his ability to walk and balance on his stumps was poor and that his physical vulnerability was immediately apparent. These physical limitations fed into Oscar's mental well-being. ‘His physical vulnerability makes him more anxious. His anxiety makes him want to conceal his physical vulnerability,' she said.

It was at this stage that crucial evidence was introduced – and no one saw it coming. Vorster said she had diagnosed the accused with a Generalised Anxiety Disorder (GAD), adding that he had a long history of this disorder and it had probably commenced with the amputation of his limbs at the age of 11 months.

An aspect of Oscar's defence was taking shape. Roux was trying to explain why his client behaved the way he did on Valentine's morning – Oscar does not possess a flight response because his physical limitations make that impossible. Vorster said the court should consider Oscar's incapacity as an amputee together with his GAD condition, which would have been present at the time of the shooting.

What exactly did Vorster mean when she requested the court to take into account Oscar's diagnosis of GAD on the morning in question? Did this affect his ability to distinguish between right and wrong or his ability to act in accordance with his understanding of right and wrong? Vorster said she merely suggested that the court takes into account these factors when considering the conduct of the accused on the morning.

Nel, however, had appeared in a previous case in which a similar set of circumstances around a finding of GAD had taken place. This meant he was able to think on his feet and react, and he promptly referred the professor to section 78 of the Criminal Procedure Act that deals with ‘mental illness or mental defect and criminal responsibility'. With her vast court experience, Vorster knew where Nel was headed.

‘Do you say it is possible that he had diminished responsibility at the time?' the prosecutor asked.

Vorster was reluctant to give a straight answer; instead she skirted the simple yes or no response Nel was seeking. ‘I am not saying that this constitutes a mental illness,' she said.

Then what was she saying? The accused doesn't suffer from a mental illness and his ability to determine right from wrong was not affected. So why was Vorster called, Nel wanted to establish.

She couldn't have it both ways.

The prosecutor called the defence's bluff, arguing that if Vorster said there was just the mere possibility that Oscar suffered from diminished capacity, then in terms of section 78 he should be referred for mental observation. The witness was reluctant to commit, saying instead that that would be a decision for the court to make.

The court would indeed have to make a decision, as Nel launched an application to have Oscar sent for 30-day psychiatric evaluation.

Nel based his application on his interpretation of the section 78(2) of the Criminal Procedure Act:

Section 79, the next section in the Act, to which Nel refers, sets the guidelines and basis for a panel to be established to conduct a psychiatric evaluation of an accused. By this time Roux and the attorneys were flipping through their thick legal textbooks and case law to establish whether Nel's argument had merit. It was the defence team's decision to introduce mental health as a possible defence, so Nel felt that the law then compelled him to act on it.

It was an interesting strategy by both sides. Nel was shutting down a possible defence for Oscar and closing a potential hole for an appeal down the line. But the other side of the coin was an acquittal based on mental incapacity. Not to mention that Roux ran the very high risk of his client becoming a ‘state patient' for the rest of his life, committed to a medical facility without the option of ever leaving.

Nel argued that the court was compelled to refer the accused to the Weskoppies Psychiatric Hospital for observation. Oscar remarked to a journalist during a tea break that Nel's application was ‘a joke'. The possibility of Oscar being an ‘outpatient' and only undergoing evaluation during the day was mooted but commentators thought it an unlikely scenario because it was so unusual.

Tension filled the gallery the next morning as Oscar and his family waited for Masipa to deliver her ruling. Proceedings still hadn't started by the usual 9:30am as counsel was called to the judge's chambers. Roux emerged several minutes later and walked directly to Oscar who was standing in the dock. He appeared
resigned; with terse lips he was shaking his head. Arnold shuffled past the tightly packed bodies in the gallery to join the conversation. When he returned to his spot, he released a long sigh before speaking to his wife Lois and Aimee. Like a game of broken telephone, whispered conversations made their way down the row of Pistorius supporters.

Despite Roux's rigorous attempt to oppose the application, Judge Masipa agreed with the state's interpretation of the law and that the court had no discretion in this regard. The judge said the basis for the application was the evidence of the defence's own witness.

‘The accused may not have raised the issue that he was not criminally responsible at the time of the incident in so many words, but evidence led on his behalf clearly raises the issue and therefore cannot be ignored,' said Masipa. ‘Not only that, but the allegations have been properly substantiated by the evidence of Dr Vorster.'

Masipa chose the unlikely ‘outpatient' option for Oscar and ordered that he report to Weskoppies every weekday, starting 26 May, for no more than 30 days. A panel of three psychiatrists – doctors Leon Fine, Herman Pretorius and Carla Kotze – and a psychologist – Jonathan Scholtz – was given the task of establishing whether Oscar ‘by reason of mental illness or mental defect, was at the time of the commission of the offence, criminally responsible for the offences charged, whether he was capable of appreciating the wrongfulness of his act, or of acting in accordance with an appreciation of the wrongfulness of his act'.

Reporters, camera operators and outside broadcast vans lined the road leading to the entrance of Weskoppies Psychiatric Hospital. Established in 1892, and originally called the Krankzinnigengesticht te Pretoria (Pretoria Lunatic Asylum), its main Edwardian-styled building is tucked away behind a forest of pine trees along a ridge west of Pretoria. The state facility has hosted some of the country's most notorious criminals, including the so-called ‘Modimolle Monster' Johan Kotze – convicted of orchestrating the gang rape of his ex-wife and murdering her son – and convicted child molester ‘Advocate Barbie' Cezanne Visser. Police officers were called in to assist with security at the entrance to the hospital. Oscar arrived shortly before 9am in a black compact sedan, far less conspicuous than the usual SUV in which he arrived at court. He would spend the next four weeks reporting to the facility as and when required, where he was put through dozens of tests and interviewed numerous times by the panel of experts.

Court resumed on 30 June. The psychiatrists' report found:

Psychologist Jonathan Scholtz supported this finding:

Amongst the findings in the psychologist's report was that Oscar did not suffer from significant anxiety, nor did he suffer from a clinically diagnosable anxiety disorder. Scholtz found that the accused presented with an elevated risk of suicide, but his religious beliefs and strong family ties mitigated against this possibility. His study found no evidence to indicate that Oscar had a history of abnormal aggression or explosive violence, and those who knew him described him as gentle, respectful and conflict-avoidant.

The psychologist interviewed Oscar for a total of 19 hours and spoke to 16 people close to him, including his family members and friends such as his mom's sister Dianne Binge, his former Pretoria Boys High School principal Bill Schroder and his coach Ampie Louw. The only ex-girlfriend amongst those interviewees was Jenna Edkins, described as being in a relationship with Oscar between 2008 and 2011, ‘with intermittent breaks of short duration and still friends with him'.

Scholtz discovered what he believed was a split in Oscar's personality, what he referred to as the ‘Two Oscars': ‘The one a vulnerable, scared disabled person; the other a strong physical person achieving beyond expectation.'

He said that at various phases of his life Oscar was unfortunate enough to experience incidents when he was exposed to crime, directly and indirectly. These included a burglary at his home, the hijacking of a family member in 2011, and the attack on the man by assailants who jumped out of a taxi. ‘He became increasingly safety conscious and fearful. He became known for his nervousness and anxiety about safety in South Africa,' said the psychologist.

Scholtz believes that the construction of the Two Oscars came fully into being when the accused was a young adult: