One Tragic Night (23 page)

At one point during the day, Roux noticed a man he recognised as the clerk for the State Attorney arriving at his chambers to serve papers for the case. He only remembered the clerk's brief visit because of the extremely colourful shirts the man favoured. Roux left his office after 11pm that night, still unaware of the media storm swirling around his new client's case.

It was for this reason that Roux was flummoxed when he arrived at the Boschkop police station to consult with Oscar on the morning of the bail application. He had driven through to Pretoria with Oldwadge early in the morning and had anticipated that there might be a few media vehicles outside but instead was met by a bombardment of cameras, microphones and satellite trucks. At the courthouse, the scene was amplified and Roux battled to make his way through the hordes, but fortunately, the foreign correspondents in Pretoria weren't familiar with him and he managed to slip through the crowd. Realising the massive public interest in the case, Roux thought, Hell, I better speak to Gerrie, and quickly met with the prosecutor whom he had come to know well over the years.

Now both men were ready to proceed.

While reporters found their spots in the courtroom, photographers were still jostling for position around the dock, the activity prompting a court official to order that every photographer and camera operator vacate the courtroom so that an accreditation process could resume. Officials also wanted to lay down the law as to when pictures could be taken of the accused.

The media hype that had gathered momentum since the shooting more than 24 hours earlier was encroaching on the courtroom. A member of the state's team, whose identity we have kept confidential, said the attention puzzled them. ‘I think the fact that it was just the two of them, and everyone in the media speculating about the kind of relationship they had, something must have just happened in those hours before she died and what else could have happened between a young couple other than a fight? We agreed it was premeditated; it could never have been an accident, absolutely not.'

Away from the humid, claustrophobic courtroom, behind the wooden door and thick steel gate, Oscar was preparing for his first court appearance. With the clang of keys on metal grabbing the attention of the entire courtroom, several individuals emerged from the holding cells to speak to the athlete's family. Bottles of water and food were handed over and returned to the cells. Proceedings were about to start.

Yvette van Schalkwyk has 24 years' experience as a court-appointed social worker and probation officer. In February 2013, she was working for the Department of Social Development, where she had been since 1989 after acquiring her Bachelor of Social Work degree.

On the morning of 15 February, the court orderly at the Pretoria Magistrate's Court approached Van Schalkwyk and asked her to assist with Oscar Pistorius. The court manager also put in a request for her to accompany him during the bail application. She didn't know why the request was sent to her, but she assumed it was for emotional support and to monitor Oscar's behaviour. At that stage, she knew nothing at all about the facts of the case.

So it was that the probation officer made her way to the holding cells in the court building where she found Oscar preparing for his court appearance, ‘heartbroken' and ‘emotional'.

‘What I saw from the first time that I saw him, from the first second, was a man that was heartbroken about the loss. He cried, he was in mourning, he suffered emotionally. He was very sorry about the loss, especially for her parents. The suffering they are going through. That was the theme throughout the whole period that I saw him. It was mainly about Reeva, the loss. He loved her,' Van Schalkwyk would later recount to the trial court.

‘He cried 80 per cent of the time. He talked to me about what they planned for the future. His future with her, the loss that he never is going to see her again. Her family, her mother and father, what they are going through. That is what I saw, I saw a heartbroken man that [was] suffering emotionally.'

Despite his fragility and apparent emotional distress, Oscar knew he would have to attempt to pull himself together to walk out into the courtroom, into the dock, and face the world.

Magistrate Desmond Nair pulled on his black-and-red robe and made his way from his office to Court C. It had already been an eventful morning, with a delegation of foreign and local media clogging the passageway to his chambers as they awaited clarity on whether or not they could photograph and film proceedings. Nair was beginning to realise the extent of the public interest in the case and, while he wasn't daunted by the scale of the coverage, he knew he would have to be on top of his game that morning.

When he arrived at the courtroom, he took in the scene – the swollen public gallery, the benches crammed with reporters – before turning to a security officer to inform him that he would not enter until the situation was under control.

Nair then took a moment to compose himself, aware that he would have to be very careful of every decision he made. He reminded himself to be conscious of the accused person's right to be respected and that he had to ensure that he received a fair bail hearing.

The courtroom finally settled and Nair adjusted his robe. He wanted to feel in command of his courtroom, but he didn't want to give the impression to the media and the public that they were subservient to him. He had to affirm the perception that he was in control and that the world could be reassured that he would take charge.

Magistrate Desmond Nair swept into the courtroom in a dramatic manner, his robe billowing behind him, and took his seat. Nel, the prosecutor, rose as everyone else in the room sat down, and called for Oscar Pistorius to be brought in.

The once triumphant athlete who had graced the globe's tracks, often with his hands in the air celebrating triumph, entered briskly with his hands by his side and his head down. He was dressed in a dark suit and tie. Oscar positioned himself towards the centre of the dock and stared at the floor. His face was contorting, overcome with emotion and anguish. It was clear he had not had much sleep.

‘The state versus Oscar Leonard Carl Pistorius,' said Nel, as he called the case. Nair's first task was to set the accused at ease:

The prosecutor proceeded by telling Nair that the state would apply to have the matter postponed for seven days for further investigation.

Oscar, who was by this time seated in the dock, broke down in uncontrollable sobs, his body heaving as he gasped for air. His father, Henke, who was in the first row of benches, leaned forward and placed his left hand on his son's back. It did little to calm the accused. Tears escaped Oscar's fingers as his hands cupped his face, and his leg was bouncing. It was evident for all to see that this was a broken man.

Nair ruled that no live recording would be allowed, but pictures and filming could take place when the court was not in session – a standard ruling with which many local reporters are familiar. The magistrate did, however, order that the audio of the closing argument and judgment in the bail application could be broadcast.

Then the real business of the day began. As anticipated, the defence set about bringing an application for Oscar to be released on bail. However, there was a crease that had to be ironed out first – one that would result in the defence having to ask for a postponement before the formal bail application could be heard.

The state wanted the court to consider the case under the more serious crime of premeditated murder rather than of murder or culpable homicide and thus to deem it a Schedule 6 offence. Roux, on the other hand, wanted the matter dealt with in terms of Schedule 5, and asked that the bail application be postponed until the following Tuesday in order to allow the defence time to prepare.

Nair confirmed this stance in an exchange with the prosecutor.

‘The bail proceedings – is the state saying premeditated murder?' asked Nair.

‘We will argue it was premeditated murder,' said Nel.

According to South African law, a Schedule 6 offence is the most severe charge possible – a Schedule 5 is serious, but Schedule 6 is the same crime committed
in a more aggravated manner. For example, if the Schedule 5 charge is murder, Schedule 6 would be the murder of a policeman, for example. If Schedule 5 is rape, Schedule 6 would be the rape of a minor or the rape of a mentally challenged individual. In other words, it is the same offence, but a more aggravated, severe form of the crime. In this particular instance, premeditated murder is listed in the Criminal Procedure Act as a Schedule 6 crime. The determination of which schedule the offence falls under has implications for bail and for sentencing. The standard required for an accused person to be granted bail is higher and the jail time the accused could face is extended. On a Schedule 6 offence, the accused would carry the onus to show that there are exceptional circumstances that should result in his being granted bail. He would have to satisfy the court – through giving evidence or by an affidavit – that exceptional circumstances exist that are in the interest of justice to permit his release. On a Schedule 5 offence, the accused only needs to show that it would be in the interest of justice to release him and he does not need to go the extra mile to show exceptional circumstances.

Roux also asked that Oscar be detained at the Brooklyn police station, and added that they had already obtained permission from the station commander Brigadier André Wiese.