One Tragic Night (97 page)

During the course of the trial, both the defence and prosecution teams drew criticism from commentators for their tactics and strategy. This was inevitable when the trial was being so closely scrutinised and being broadcast blow by blow. The legal fraternity in South Africa is a small one, and behind the scenes of the High Court theatre, a fascinating version of how things may have played out could be heard. Most lawyers see it as unethical to criticise their colleagues in public, particularly in a field dominated by ego and competition. Instead, they would only speak anonymously. And despite the chatter in legal circles and the extensive speculation about what was going on behind closed doors,
only those within the legal teams truly knew the circumstances. That didn't stop the sharpest legal minds from volunteering an opinion.

What was potentially going on behind the scenes within Oscar's legal team? Was it all about who was calling the shots and who held the real power?

‘I know for a fact there is massive infighting between Roux and Oldwadge over the instructions which they give to Oscar,' comments a top criminal defence attorney. ‘They speak to Oscar about a specific incident and then Kenny kind of takes over and says this is important. Kenny took over. He's hired because Oscar's brother was defended by Kenny in other matters.'

A source close to the defence team, who does not want to be identified, confirms there was a disagreement between Oldwadge and Roux. ‘There was a serious fallout. I don't know what it was about but they had a big fight. They spent an hour behind closed doors and when Kenny came out he was furious.'

The attorney believes that the root problem is Oscar's choice of attorney. Brian Webber has very little experience in criminal cases and primarily practises in corporate litigation. ‘I don't think that Oscar's lawyer has done a criminal matter in the last 20 years. It's an enormous misconception that the lawyer just sits there in the back – he's the one who sits down with his client and goes through the case. The buck has to stop somewhere. I prepare the living shit out of a guy. Barry wasn't briefed properly on this. Barry needs to feel heavily supported.'

A senior advocate with decades of experience fully agrees with this notion. ‘Advocates carry out the instructions of the attorney. They can give advice but can't tell you what to do. An advocate's job is to prepare a case for litigation and litigate. They can determine strategy, but they can only advise. I can say to you, these are your options, having heard your version, but I can't adapt your version or panel beat it. Your attorney in discussion with you will give instructions and the advocate must do it. If a client says, “I want you to stand on your head and wear pink underwear,” then you fucking do it. But you can't withdraw for nebulous reasons. If you're available, you have to take it. It's called the cab-rank rule. Ethically you're not supposed to choose – some people would never get represented if that were the case.'

Just about every lawyer we spoke to was of the opinion that the defence strategy was wrong from the outset and that such a detailed version should never have been put on record at the bail application.

‘Remember what his rights are, to say fuck all. He had already verbally told
the police his version. They're calling the doctor to the funeral to be honest,' says the attorney.

The senior advocate agrees: ‘I thought they dealt with it very poorly. That statement is deadly. It amounts to a confession for murder. I presume that they felt cornered. The state only opposed bail to get a version. All you need to do is give a version, very bland, as non-committal as possible. You don't even have to give a version at all. I would have stuck with “intruder, big fright, fired shots. It's the morning after, I actually don't even know, my client is not able to depose to a statement, and we're considering hospitalising him.” I'm sure Barry was livid with that statement.'

However, it is understood that Roux did play a role in settling on the affidavit.

The attorney believes Roux allowed Nel great latitude in cross-examination. ‘You can't allow Gerrie to stand up and go on and on and on. Barry could have jumped up. Gerrie will cross-examine an innocent or honest person into looking very bad. He is the representative of the people and his duty here is to get the truth in front of court. Nothing is going to stop him. Gerrie is fucking unstoppable. He gave Oscar the hiding of his life.'

Another top advocate, who has defended many a criminal, says the problem from the outset was that ‘the tail wagged the dog' and the ‘fuck-up of a bail application'. It all came down to strategy.

‘In the plea explanation, it was putative private defence. When they saw it didn't tie in, then they went with temporary, non-pathological incapacity. It's what they do in road rage cases – if I lost my temper to the point that I couldn't control myself, I get off. It's an “emotional storm”.

‘They took a principled decision right in the beginning not to use automatism because they denied the argument. But there's no hybrid. The public and the courts didn't see it coming and then Vorster came and it changed for the third time. They wanted to keep both doors open but they could have cut a deal right in the beginning.'

Advocate Mannie Witz was willing to go on record about what he thought of the strategy of both the prosecution and the defence. He assisted Darren Fresco in drawing up his statement and has been a prominent commentator throughout the trial. Witz says Oscar's legal team had no choice but to go with the intruder defence as they were ‘married to it', because it was what Oscar had told Dr Stipp and the Standers in the minutes after the shooting.

‘They must have been aware that their client, when they got instructions, must have told them that Stipp was there. He had told Stipp that he had made a mistake and he had told Stander. I think he had to stick to that version. Especially
when a guy like Dr Stipp is a person who is a complete independent – he's got nothing to do with any of the parties – if he's going to come along and say that, I think you're married to that version. I think what the defence tried to do, they tried to taper that version in with a very difficult defence, which is putative private defence.'

Witz thinks they were trapped into the bail application statement. ‘There's been a lot of criticism going around about the bail application statement, and I mean he's got very experienced guys who appeared for him. The defence knew from the beginning that what they set out in the bail application was going to be used eventually, but I think the state was actually quite cunning and quite shrewd in that bail application.'

Witz says he's been surprised at how tardy the defence appears to have been in preparing witnesses. ‘A lot of the witnesses have been after-the-event witnesses. Like Professor Merryll Vorster. Merryll is a very competent woman, very experienced and she knows this game, and I mean they only got hold of her after Oscar had given his evidence and after everything, and then she then came out with this anxiety disorder. I found it a bit strange. They never gave the reports to the state, so the state was really caught unawares and a lot of these reports were done after the event.'

Like the other lawyers we interviewed, Witz is of the opinion that the core problem is an attorney who isn't experienced in criminal law and a potential fallout within the defence team.

‘Brian's not a criminal lawyer. It's the second one he's ever done in his whole life and the last one. Brian used to do all the Pistorius family stuff and do all the endorsement and the civil stuff and commercial work when they needed an attorney. He just said to me this is the second and the last in his whole career and he has been on the go for 35 years,' says Witz.

He has also heard about the friction within the defence team. ‘There's talk about it. There's a lot of talk around the chambers about what's going down and what happened, etc. No one knows what the real truth is.'

Regardless of the speculation in legal circles, it seems as though the reality is different. A source close to the defence legal team rubbished many of these speculations.

‘There was really not a fallout at all between Barry and Kenny. They work very well together and have a good relationship. Barry calls the shots and Kenny does the groundwork. Barry will never be intimidated by Kenny.

‘The real fallout was between Brian and Kenny. For a day or two there was a bit of sulking. Kenny felt that some of the things he asked from Brian were not
forthcoming quickly enough. To say that Kenny and Uncle Arnold are big mates is not true. Arnold was sort of interfering and Kenny took no nonsense. Arnold was saying “do this, do that” and Kenny didn't like it.'

The source suggests criticism of Webber's lack of experience was, however, spot on. ‘Brian was just out of touch with the criminal aspects, the strategies, he was lacking the experience.'

The source is quick to explain the defence team's strategy around the bail application statement, saying that criticism is simply unfair. It's also understood that Oscar was keen to take the stand at the bail application already but he was stopped by his lawyers.

‘We all know in a bail application that you stay clear of the merits. Oscar wanted to tell his story. He wanted to give evidence at the bail application already. Barry knew he would not have coped. He wanted his version out there, understanding the dangers. He wanted to tell the truth. He didn't want them later to say that he's coming up with a version. He insisted on giving evidence and the legal team said “No”. They would rather take the route of an affidavit. In fact, in giving that version, the legal team believed it would save his credibility ultimately in the trial. There will always be contradictions in a version but the material gist remained the same throughout all his versions. Ultimately, the judge would have realised that Oscar's version is not a fabricated afterthought premised on a reading of the docket and trial preparation.

‘Barry didn't like it but felt that once Oscar's version was confirmed by the experts, that it was not unsafe to go that route.'

Why didn't the defence choose to go with overseas forensic experts, as it was widely thought would happen?

‘There were huge time limitations to get experts and the only people they could get were Wollie and Dixon. With Dixon, for example, Barry never anticipated he would go beyond the agreed ambit of his evidence. They couldn't go internationally to bring in expert witnesses due to financial constraints,' said the source.

And why did it appear that so much was done at the very last minute? The source states that this is not true and the defence was never in disarray, as has been suggested by observers.

‘The only witness that was instructed belatedly was Merryll Vorster, for two reasons – the one was that another witness became unavailable very late and when they considered Oscar's evidence, they realised that the role that his anxiety played should be explained. They realised they had no choice but to call another expert witness and that's why they went to Merryll.

‘With Van Schalkwyk, the social worker, she went to the legal team after
Oscar's evidence, telling them that it was unfair what was being said in cross-examination that it was “all about Oscar”. She said she wanted to testify to correct that perception and Barry called her so quickly because the next expert witness was not available the following day and, rather than standing down and waste court time and money, he put the witness on the stand. They thought she was a great witness.

‘Dixon's and Wolmarans's tests weren't done late. Barry wasn't happy with the cricket bat test and he sent them back to redo it again. It's not a criticism of Barry's but of the efficiency of the defence witnesses.'

While colleagues are highly critical of Roux's apparent failure to protect the accused while he was on the stand and not object as actively as he could have done, those close to the defence legal team suggest this was an intentional move by the senior counsel. He had read the judge and did not want to provoke her.

‘There were many instances where objections to the cross-examination of Nel would have been justified. However, it was felt that the judge would see right through what was taking place and that the unfair cross-examination would be converted into a negative for the state as it was obvious that the judge was not impressed with Gerrie's style of cross-examination. The defence also did not want to be seen to protect Oscar in his evidence all the time as that in itself would create a negative perception.'

A source close to the legal team is dismissive of gossip and baseless speculation and was ready to hit back, taking a swipe at Advocate Witz, a regular on TV during the trial. Those in the defence team have also all heard the rumblings that have been going on in chamber corridors, ‘always by the same people, who should not necessarily be in a position to criticise.

‘Any experienced lawyer will realise that he or she does not know the full facts and the complexity of the facts and to sit on the sideline and to shoot from the hip is not only dangerous but outright stupid. It's for that very reason that you would not see prominent counsel on television shows as they know that it would not only be improper but that they are not privy to the full facts and the difficulties in the matter. However, those wanting to improve their image would revel in the attention,' says the source. ‘You'll never see Barry doing that.'