One Tragic Night (33 page)

‘When I look back, I often think about the emotions on the counsels' faces at different times during that bail application. Counsel are watching you all the time. When you interject to ask questions, especially during argument, and you remember I took both prosecution and state to great lengths to explain why they were arguing a, b, c and d … it's then that counsel don't really know. They start to guess which way this one is going. So by the time you step into court to give your judgment, they are playing back, “Why did he ask me that? Why was he asking about this …?” I've heard afterwards that the judgment was something of a pendulum: at some point looking like it was going this way, at some point looking like it was going that way, but that's again my personal style of giving a judgment.'

Nair also believes that the focus of the world's attention on his courtroom bodes well for the public's perception of the country's criminal justice system. As a result of the interest in the application, more people have learned about how the system works in reality and the merits and flaws of its ability to mete out justice.

‘I think it's very positive that fate would have it that the South African criminal justice system, more specifically the bail operations in a courtroom have come to the fore. We had the opportunity to show how you do a bail application in a country that has a remarkable Constitution and everything in the Criminal Procedure Act is so married to the Constitution. I personally think that at any level – at bail level, at trial level, at appeal level – any international jurist would be proud. I know I gave it my best and I've got no reason to believe that, apart from the bail conditions that were overturned in some respects, the law was incorrectly applied.'

Ultimately, Nair chose to set bail at R1 million, considerably higher than the R250 000 Oscar offered to post. The magistrate has been known, such as in the case of Chanelle Henning, to set bail high, reaching up to R5 million, and with his international deals and success, the Paralympian could have been considered lucky not to have his bond set higher.

‘I was satisfied with R1 million,' Nair says sternly and hints at the possibility that he had considered a higher amount. ‘In the thought process up to the fixing of the amount, one thinks about various options when it comes to the amount of bail and the conditions. It's part of the decision-making process. I'm a firm believer that bail must be fixed at an amount which you certainly would be able to afford, but you will feel the pinch if you lost that amount of money. You must remember that a substantial portion of the bail was made up by guarantee and bond, so for me it's never about taking blood for stone. You can't fix bail at an amount that is clearly impossible for an accused to pay.'

A month after Nair delivered his judgment, Oscar took the decision on appeal in the High Court in Pretoria. Judge Bert Bam presided over that appeal and overturned some of the conditions imposed by Nair. These included that he surrender his passport to the magistrate's office, that he refrain from applying for a passport or travel documents until the case against him is concluded, that he refrain from entering the international departure hall of any airport, that he submit himself to the supervision of a probation officer, that he not be charged with an offence relating to violence against women while on bail, and that he refrain from consuming alcohol or a banned substance.

Bam stated that the conditions that Oscar report to the Brooklyn police station twice a week, and that he not go to his home at the Silver Woods estate, also be disregarded because they were not in Magistrate Nair's order. The judge also found that his court had the right to hear the appeal, because the Criminal Procedure Act did not limit it to the magistrate's court where the bail application was heard.

Bam was scathing of Nair in his ruling, finding that he had ‘misguided himself', was ‘patently wrong' and had imposed ‘punitive' conditions on the accused. He also warned that bail should not be used as a tool to inflict an ‘anticipatory punishment'.

‘I think he's capable and competent but in this matter he was overwhelmed and overreaching. I think he just got caught up in the excitement. I think his judgment touched on things that were absolutely unnecessary. And I was shocked about the bail conditions, because half of those things I didn't even know you could actually do. Why he appointed a probation officer, who knows? Obviously some or other judge was going to change it. [Nair] opened the door and I think he gave [Bam] sufficient opportunity to criticise him,' says one public prosecutor who watched the case closely.

The defence's decision to appeal Nair's ruling – and to go to the High Court rather than return to him – clearly touched a nerve.

‘It took me by surprise because my personal view was that you ought to have come back to me and said, “We've got an issue with this, this and this.” But I respect the fact that they have a right to go on appeal and I respect the judgment by Judge Bam,' says Nair. He's diplomatic when asked about Bam's harsh choice of words. ‘It's not unusual to hear those sentiments or comments when a matter is taken on appeal. I've also acted for a term now in the South Gauteng High Court and I've had appeals against refusal of bail where I have had to evaluate the judgments of my friends who are magistrates – and Regional Court magistrates in some instances – and overturn their decision.'

In the wake of Bam's ruling, there had been hushed rumblings in Pretoria's legal circles that the criticism of Nair's decision had its roots in a previous standoff between the two men, a legacy of a long-fought legal scrap. Nair had presided over the case of Olympic athlete Sydney Maree and convicted him. Bam was the senior counsel representing Maree. Does Nair believe this was payback? No, he assures.

‘Well, factually you are correct, I presided over the Sydney Maree matter and then Judge Bam was the senior counsel who represented Mr Maree. And we have worked together in the past. I would want to respect Judge Bam as being the gentlemen that he is and somebody who would not allow previous legal battles to be at the forefront when he is presiding over a legal matter.'

Nair still has unanswered questions about the incident and the version put forward by Oscar. It was these questions, which he included in his judgment, that the defence would have to answer in the trial.

‘At the time that I raised those questions in my judgment, it wasn't calculated to influence anybody else in the future. It's just my style from the time I started on the bench to write a judgment into probabilities and improbabilities by asking questions in the judgment because that is how you test probability and improbability. But I think you may well hear those questions again in future.'

Now that he has disposed of the case, will Nair be watching the trial as it plays out down the road at the High Court, like the rest of the country?

‘I think I will,' he smiles, his moustache stretching across his cheeks. ‘There's no impediment to me following it now at all.' But will he be watching it for the sensation or for the law? ‘For the law,' he says predictably, a reminder of just how deep his love for the law runs. ‘Because you can't help but put yourself in the position of the trial judge. I often said during the hearing, “I'm not the trial judge,” when I qualified some things, but if I were hearing the matter, what would it be like in terms of the law? Purely in the law.' He can't help but wonder.

Over the period of a year, from February 2013 until March 2014, both the prosecution and the defence prepared for what inevitably became known as ‘the trial of the century'. The state's legal team of Gerrie Nel, Andrea Johnson, Captain Mike van Aardt and a contingent of top police investigators busied themselves securing affidavits, consulting with witnesses, conducting extensive forensic tests and carefully constructing their legal argument.

The same scenario was playing out in Barry Roux's chambers in Sandton, which inconveniently were undergoing a large-scale renovation. A trip to the defence's ‘war room' involved a hazardous walk around building rubble and under scaffolding. Files labelled ‘State vs Pistorius' began to stack high in Roux's office, with some having to occupy space on the carpeted floor.

But it wasn't only the lawyers who were furiously working: Oscar's PR machine also found themselves busy putting out fires as his name constantly reappeared in media reports. The appetite for stories about the fallen superstar was insatiable; every move he made and every development around him was publicised.

In March 2013, reports surfaced that Oscar was on the verge of suicide, that he was a broken man and that he was struggling to pay for spiralling legal fees. The reports emanated from a BBC3 documentary, featuring an interview with Oscar's friend Mike Azzie. ‘He just always seems to mention Reeva and to ask us to pray for her and her family,' said Mike. ‘But most of all, you've got to understand that we are there for him and we will always be his friend. He has no confidence in his tone of voice and he is just a man that is almost like someone that is walking around in circles and doesn't know where he is going. I would say that, just speaking to him, that he is a broken man and that I would go as far to say that he would be on the verge of suicide. It really worries me.'

The Pistorius family quickly moved to quell the rumour and shut down the suspicions:

One dilemma facing Oscar in the year that followed was whether or not he should resume training. Running was what defined him before the shooting and how he had achieved fame and glory. He had not been on the track since Valentine's Day. His last competitive race had been his victory in the 400 metre final at the Paralympics the previous September. He had visited his training track at the University of Pretoria in March, but he had not chased the stopwatch as normal, settling instead for a short jog. That visit to the training ground had been captured by a schoolgirl on her cellphone and sparked rumours of his return to racing.

In early April 2013, his agent Peet van Zyl stated publicly that Oscar wanted to get back to training, but that he was not ‘mentally ready' to compete.

‘From our meeting, it was clear and evident it's going to take some time for him to be ready to compete. He's trying to process this whole ordeal,' said Van Zyl.

Oscar's family and his long-time coach Ampie Louw were keen for him to get back into training and into some kind of routine, but on 4 April his family issued a statement:

Three months later, Oscar made a formal return to his regular track routine, an event that was marked by the release of a two-minute video by his family. In the
clip, Oscar was bearded and had lost a lot of weight. He was clearly emotional as he pulled on his carbon-fibre running blades. Dressed in a blue hooded Nike sweatshirt, he slowly made his way around the track in his first formal session in five months.

Back in April 2013, the family chose to issue another statement – this time in response to vitriolic and opinionated comments on Twitter and other social media platforms. They indirectly rebuked the group that had come to be known in the media as the ‘Pistorians', fiercely loyal women who had banded together on Twitter, posting derogatory and offensive comments about Reeva, changing their avatars to images of Oscar and rabidly defending him against detractors at any opportunity:

But Oscar couldn't keep his name out of the headlines. Out on bail, he had spent the time since the Valentine's Day shooting largely holed up at his uncle's Waterkloof mansion in Pretoria, apparently reading the Bible and watching television.

But he did venture out. On the heels of the family's statement in April, the
Sunday Times
reported on how he had enjoyed a few drinks on a night out at the Kitchen Bar restaurant in the Design Quarter in Fourways with tow-truck baron Craig Lipschitz. The Pistorius family public relations consultant Anneliese Burgess was quick to deny the claims as they appeared in the
Sunday Times,
which followed up its initial report with a further article: