One Tragic Night (31 page)

Despite all this, he found that the state had been unable to show that it had such a watertight case that it would compel the accused to attempt to flee his trial.

‘The issue before me is whether this accused, being who he is, and with the assets he has in the country, would possibly seek to duck and dive all over the world when, even by the state's own concession, he may at the worst case scenario face culpable homicide. I cannot find that it has been established that the accused is a flight risk.'

The magistrate spoke for over two hours. During this time, international networks had been displaying images of black screens while carrying the audio of Nair's ruling. Reporters tweeted every minute detail of colour and atmosphere from inside the room in order to portray some picture to accompany the audio.

The tension was tangible as Nair crept ever so slowly towards finality. Some journalists had two typed-out versions of tweets ready to copy and paste into their profiles and hit ‘send'. Oscar's cousins circled the block for the umpteenth time with his bail money.

After a long pause, Nair continued: ‘I have come to the conclusion that the accused has made a case to be released on bail.'

A shout of ‘Yes!' boomed out from the public gallery as celebrity businessman and self-proclaimed ‘friend' Kenny Kunene punched the air. Smiles rushed over the faces of the Pistorius family, while Oscar dropped his head in relief.

Nel quickly rose. ‘As the court pleases,' he said, before moving onto discussions on the bail conditions.

Nair said he was grateful for the time counsel had taken to discuss the terms of bail, but made it clear that the decisions surrounding bail would be up to the court.

‘Bail is fixed at an amount of one million rand,' he announced.

Nair went on to list a slew of travel and movement restrictions, and also imposed the condition of a correctional officer who would be able to monitor Oscar at any time of the day.

Usually, in matters of this nature, the prosecution and defence would agree on the conditions and the amount at which bail would be set. One of the two parties would write up an order for the court to approve. This had happened in this case and the state and Oscar's lawyers were satisfied with the agreed terms and conditions. However, Nair surprised both sides when he dismissed their agreement and took it upon himself to impose stringent, little-heard-of conditions that would be roundly dismissed by an appeal judge a month later.

After a week in jail, the Blade Runner would be released from custody. The bag men made their way into the court building in a rush to pay the cash bond before officials knocked off for the weekend. And eventually a silver Land Rover was allowed into the court precinct through the tunnel that leads to the holding cell entrance.

The Sophie de Bruyn driveway was jammed with a pack of camera operators, some on motorbikes ready to give chase as the vehicle made its way towards Waterkloof. The 4-metre-high brown gates opened as the 4x4 approached it. The vehicle passed through as lenses pressed up against the glass windows. As photographers hastily downloaded their images showing the international superstar seated in the middle of the back seat of the car, the vehicle sped away.

Oscar was free, for now.

Magistrate Nair drove out the court complex through the phalanx of video cameras just as dusk was beginning to set late on the Friday afternoon. As he made his way down Schoeman Street out of the city centre, he felt a great sense of relief that the weight of the week and the case had been lifted. He had spent most of the preceding nights awake, working through his notes on the application. The magistrate had always believed that the easiest mistake a presiding officer can make is to not review the arguments put before him before returning to court the following day. He was exhausted.

But his relief was short-lived. That Sunday his family was struck by a tragedy of enormous magnitude. The bodies of his first cousin and her two sons were found at their Johannesburg home by her ex-husband. It was believed she had poisoned her children before taking her own life. At the end of a week so overwhelmingly dominated by death, Nair felt the desolation of the loss. This wasn't a case to be assessed by stark facts and finite law, but rather to be mourned on a human level. A reminder of the true value of life and loss.

Magistrate Desmond Nair loves the law. He speaks with great passion and conviction of the peculiarities and nuances of legal proceedings, more so when he's delving into his favoured field of bail. It is for this reason that he agreed to a rare interview about a matter that he has presided over. It is highly unusual in the South African legal system for a magistrate or judge to sit down with a journalist to discuss a case that has come before them. It's February 2014 and the country is gearing up for Oscar Pistorius's trial to get underway. Technically, Nair is allowed to speak about the case because he has disposed of the matter. It has been moved from the Magistrate's Court to the High Court and a trial judge has been appointed.

Nair was central to the Olympian's initial court proceedings as it was his voice that was carried live on global news networks while delivering his judgment in the bail application. While he downplays the so-called fame he achieved, it is no secret in Pretoria's legal circles that Nair has a tendency for pageantry and would have enjoyed the show of the event playing out on the world's stage.

Nair began his career as a magistrate in the small town of Dundee in KwaZulu-Natal on South Africa's eastern flank. He had grown up in the province – he was born in Dannhauser near Newcastle and studied at the University of Durban-Westville (now a campus of the University of KwaZulu-Natal) for his BA Law and LLB. He prosecuted in Dundee for two years before taking up a post on the bench. In 1995 he was appointed as a magistrate in Johannesburg before spending time in the Specialised Commercial Crimes Court (SCCC) in Pretoria. He is now the Chief Magistrate in Pretoria.

As a boy, his was a disciplined home and while he can't profess to having been a victim of apartheid or having been heavily involved in the struggle for liberation,
he was certainly aware of the principles of justice and equality. While at school, young Desmond discovered an ability to debate and speak publicly. ‘The teachers at school saw the potential when it came to public speaking and then I would be debating all the time. I was chosen to represent the school at what was known as the Jan Hofmeyr Speech Contest, and that was with all the schools, across the colour line, in Dundee. I spoke about justice and fairness and equity. I think that is where some of the teachers realised, you know what? This guy is a talker.'

It was this realisation that set Nair on the path to a law career. But still he chose to go to the bench rather than the more lucrative option of private practice. ‘I don't think I was as much comfortable wanting to fight and take instructions to fight. I find myself more at ease being a judicial officer. Being an umpire. But I get involved in the matters as well. I don't believe, like I'm told, that in civil matters it's the parties who bring the matter to court and if they err or they don't call a witness, you should be very careful before you jump in. I'm still very active as a judicial officer.'

The 45-year-old father of three was only 25 when he was first appointed as a magistrate. His head of office in Dundee had gone on leave over the December holidays in 1994 and he was picked as the stand-in. ‘I took to it immediately. I enjoyed it from day one and I found the interpretation, the application of the law, to be enjoyable. I was so dedicated,' he says pointing at the shelves full of books lining his office walls. ‘Those law reports, behind you now, I would pick them up like a novel, just to read. And I would read them non-stop!' he exclaims. He even has a photograph, taken by a colleague, of himself as a young magistrate pouring over volumes of reports.

Nair's time on the bench at the SCCC and as Chief Magistrate in Pretoria prepared him well for the intensity of the world's focus and the Oscar Pistorius case. At the SCCC, he became used to the calibre of argument, and of advocate, that feature in High Court trials. ‘It was there already that I was sentencing guys to 15 years, 10 years for white-collar crime, mostly, complicated fraud matters and most of the accused would employ senior counsel. I had already had the experience of the SCs before me, so I wasn't really daunted by the quality of counsel that some of the accused persons have had representing them,' he explains.

It was the drunk-driving case of Judge Nkola Motata that truly tested Nair and taught him about the intricacies of dealing with the scrutiny of a trial run through the media.

‘The matter involving Judge Motata was a lengthy one. It took us more than 18 months to finalise and I would say I cut my teeth there in dealing with matters of that magnitude. It was a full trial. Although it was a drunken-driving matter,
we got involved in 19 interlocutory applications wherein I had to give judgments and, during the course of that trial, two or three times the matter landed up in the High Court,' Nair reminisces. ‘One had to be very, very careful. You had to mete out justice. And you also had to deal with the fact that there would be this great public pressure to see whether he's going to get off with a lighter sentence.'

But, Nair admits, nothing could really have sufficiently prepared him for the unprecedented level of interest that Oscar's appearance drew. ‘You couldn't compare the Pistorius matter to any other matter, including Judge Motata, simply because I had never experienced the surrounds of the courtroom with the international media. I remember on the first day, when the bail application started, there were about 40 or 50 people who were waiting outside here who wanted to speak with me before the matter started to see how we were going to work out the logistics,' he says, referring to the media's persistence in wanting to broadcast the appearance live. ‘I had to appoint a task team within this office to deal with the media so that I didn't engage them and then, of course, I had to deal with the fact that when I got into the courtroom – even though I had made certain rulings in terms of law – you still found people breaching those rulings.' Nair, of course, had to balance Oscar's rights with the public interest in the case and the media's desperation to get the story.

‘You want to appear to be firm, but polite at the same time … One must remember that our case law, when it comes to televising proceedings, also talks about the dangers of being drawn into this whole media frenzy and not focusing on your job because it does affect your concentration. If you're new to it, you can get fazed by it.'

Nair was annoyed that his ruling about the accused being photographed or videoed while court was in session appeared to have been violated and a picture of the athlete in the dock was wired around the world, appearing on the front pages of newspapers. In that instance, the editor visited Nair in his chambers to provide an explanation and apologise. ‘I was very, very taken aback by the fact that I had made a ruling – and you don't expect it. They put an explanation on the table in terms of how it happened. I think they all realised that you would not want to let the South African media be the cause of a banning order in terms of media in the courtroom. Rather let it be somebody else, but not the South African media houses. I saw a tremendous amount of respect for me, for the rulings I made. They were always very careful.'

Nair strokes his moustache as he casts his mind back to that day in February 2013, when he first realised that the world-famous Paralympic athlete and icon would be appearing before him in court as an accused. He was first told the news
of Oscar's arrest by the Acting Senior Magistrate. He was shocked. ‘As a person, shock, you know, because you've heard and read about him. But I had to remind myself from the first minute, you may just be presiding on the matter so you're going to just have to focus yourself on the person as an accused person.'