One Tragic Night (93 page)

Opinion was that it could ultimately emerge that Oscar could be the master of his own downfall. His own testimony could trip him up.

After a month-long hiatus, everyone returned to their seats in Court GD as if they had never left. But they had – foreign correspondents had spent the month away from the human drama of the Oscar Pistorius trial to cover violent conflict in Gaza, an Ebola outbreak in West Africa, the escalating tension in the Ukraine following the shooting down of a Malaysian Airlines plane and the kidnapping of some 200 schoolgirls by Boko Haram in Nigeria.

But on the morning of 7 August, they were all there to witness two masters of their craft wrapping up their cases. It was Day 40 of the trial and there was an air of relief and an atmosphere of finality as the case entered its last stretch prior to judgment.

For the first time both fathers appeared at the trial. Barry Steenkamp, a large hulking man with a thick white beard, uncomfortable in a suit, arrived with his wife June, who had attended each day. He shared a warm embrace with the ANC Women's League's Jacqui Mofokeng, who had been a pillar of support for the family, both emotionally and financially.

Barry had indicated a week earlier in a Sunday newspaper that he felt dutybound to be in court for his daughter. He hadn't attended previously because of ill-health, suffering a stroke a few weeks before the trial started. Barry took up a seat next to June, while to his left was the couple's advocate Dup de Bruyn. June's cousin Kim Martin, another regular supporter of the family, was also there.

The Myers sisters and their mother were in their usual places, towards the middle of the front bench, effectively a buffer between the Steenkamp and Pistorius camps.

The extended Pistorius family filed in: all the uncles, Theo, Leo and Arnold, with their spouses, as well as several cousins. Oscar's father Henke arrived and
shook the hands of the male relatives and greeted the women with a hug and a kiss. He and Arnold did not appear to acknowledge one another, a testament to the strained relationship Henke has with his family. However, Aimee did give her father a warm embrace and seemed emotional to see him arrive. Oscar did greet his dad, but only later during a break. When Henke thrust his arms around his son, Oscar didn't budge, cementing his hands to the wooden dock as he was awkwardly hugged.

The one notable absence was Oscar's brother Carl. He had been seriously injured in a car accident in Limpopo just days before. He had spent several days in the Intensive Care Unit of a Pretoria hospital with multiple broken bones and was unable to attend.

By the time Oscar took his seat in the dock of the courtroom, in a dark suit and dark-framed eyeglasses, both the defence and the prosecution were set to present closing arguments. The timeframe had been set down for two days. Each side had handed in its ‘Heads of Argument', written summaries of their cases, but this was an opportunity for the senior counsel of each party to argue before Judge Masipa and the two assessors. It was inevitable that Gerrie Nel and Barry Roux would play to the public, that their arguments would be theatrical, that the legal proceedings had the potential to deteriorate into a pageant. In closing argument, often the man with the best oratory ability will appear more convincing, particularly in this arena, which was the first South African trial to be broadcast live.

Nel went first and he opened by setting the scene with a quote from his favourite defence advocate, the fictional Horace Rumpole from the television series
Rumpole of the Bailey:
‘With all due respect to Your Ladyship, I was thinking that a criminal trial is a very blunt implement for digging out the truth.'

He explained himself: ‘Now, M'Lady, and it was evident in this matter. It was not the matter that the truth was just there, it was a case that we had to work on, worked on days, worked on hard, both the state and the defence, but we are confident, M'Lady, that, although blunt, it always leads to getting to the truth and, I think, in this matter it also did.'

As a prosecutor, Nel is an expert in ‘packaging' his arguments, relying on analogies and metaphors for ease of understanding complex matters. He used three such devices as he made his case: the analogy of an athlete dropping the ‘baton of truth'; a destroyed ‘mosaic'; and a ‘baker's dozen' of inconsistencies in Oscar's version.

He opened with the first of these analogies: ‘The State will expose how he stumbled over his lies and deceit and in the process dropped the baton and he
was unable to complete the race. It is the State's case that the accused was a deceitful witness and that the court should have no difficulty in rejecting his core version of events.'

Nel immediately went on the offensive, attacking Oscar's credibility as a witness, accusing him of being incapable of taking responsibility for any wrongdoing and playing the role of the ‘victim' of circumstance. He argued that the accused was a deceitful witness who had tailored his evidence and used ‘wellcalculated and rehearsed emotional outbursts to deflect the attention and avoid him having to answer questions'.

Nel posed a burning question. Just what is Oscar's defence? ‘Is it putative self-defence? Is it an act of sane automatism? Did he have criminal capacity to act? Or was it all an accident (as in Tashas restaurant) where he had the gun in his hand and it purportedly discharged itself?'

The state believed an objective evaluation of the facts showed that there had been no real threat to the accused. ‘The perceived imminent attack was nothing more (on his version) than a sound. The door was locked. There was no evidence that there was even an attempt to open the door from within the toilet cubicle.' This meant he could not argue he was acting in self-defence.

‘It is our argument that, on his own version, the accused acted so unreasonably that his version could never be accepted as reasonably possibly true,' said Nel.

He argued that even if the court did accept Oscar's version, he should still be convicted of murder. ‘He cannot escape a finding that he acted with
dolus eventualis
by arming himself and, whilst approaching the “danger”, foresaw the possibility that he may shoot and kill someone but reconciled himself with this possibility by walking into the bathroom and then without objective or subjective cause, fired four shots into a small toilet cubicle whilst anticipating that someone was in the cubicle and likely to be killed.'

Nel moved to negate the defence that Oscar was suffering from anxiety and that he felt vulnerable. ‘There will be argument about the anxiety of the accused, that he was an anxious person. Now what is interesting, M'Lady, is that the anxiety did not present itself when they were stopped by the Metro Police officers on the way back from the Vaal, not at all, quite the opposite. He was not anxious, he challenged the Metro Police officers, he engaged with the police officer about what he was doing with his gun, not an anxious person being worried and scared of the police being there and finding my firearm. We say, M'Lady, that the anxious nature of what the accused would want the court to believe is anxiety-on-call, when I need to be anxious, when I need somebody to accept my anxiety, I have it on call, anxiety-on-call,' said Nel somewhat disparagingly.

Nel floated the concept of a ‘mosaic of proof', arguing that the objective facts create ‘a rather gruesome mosaic'. ‘We will argue that the accused destroyed his mosaic with his unconvincing contradictory evidence. Each separate piece of circumstantial evidence, viewed in isolation, may be argued to only weigh as much as a feather but all the feathers together on the scale will convincingly balance the scale in favour of the State.'

It was an approach Nel had taken before in a case in which he could rely on only circumstantial evidence – the case against former police chief Jackie Selebi: the belief that it is the weight of all the feathers, all of the individual pieces of evidence, that will outweigh the defence's case.

Nel also made another subtle reference to Selebi, who he once referred to as the worst witness to ever testify in a court. Nel suggested Oscar was not far behind the former police chief.

‘It is our respectful submission that the accused was an appalling witness. We cannot argue that he was the worst witness ever, that honour belongs to someone else. The accused was, however, demonstrably one of the worst witnesses ever encountered. The accused did not present as someone striving to give a truthful version, but rather as someone who was tailoring a version and was more concerned with the implications of his answers than the truth thereof.'

In the case of Selebi, Nel had used the device of ‘Selebi's Five Big Lies'. Now, he created ‘Oscar's Baker's Dozen' exposing the major discrepancies, contradictions and in the state's view, deceitfulness exposed during Oscar's evidence.

Number 1
– Nel challenged Oscar's answers to questions posed to him around the infamous ‘zombie stopper' video. Initially Oscar testified that he had no idea what it was but was then shown a recording of himself using the phrase.

Number 2
– Nel claimed Oscar realised he needed to be inside his bedroom to rely on a sound he had heard in the bathroom, but he ‘forgot his version under oath in the bail application'. Nel also accused Oscar of resorting to blaming his counsel for his contradictory versions.

Number 3
– Nel argued Oscar had to create time to allow Reeva to get to the toilet and because he had to be inside the room to hear the sound in the bathroom, he created a version that included a second fan – but had only mentioned one fan in his bail application statement. Nel argued that this ‘destroyed some of the pieces of the mosaic as the accused had to adapt his version because there was no space for a further electrical plug in the extension cord'.

Number 4
– Nel stated that ‘with the mosaic pieces falling from the canvas', Oscar ‘turned his version of events into a farce', claiming he apparently moved the
fans to where the duvet was. Nel had argued that the placement of the objects showed that Oscar's version could not be true, but the defence had argued the scene was tampered with. ‘He also had to create a version that would make it possible for him to go onto the balcony to shout for help. The snowball effect of a lie becomes quite evident.'

Number 5
– Nel believed the tailoring of evidence by Oscar had a ‘domino effect' and if ‘one piece of the mosaic is moved the rest have to as well to keep the picture intact'. He argued that with the fans having been moved, Oscar had to create an untrue version about the duvet.

Number 6
– Nel claimed Oscar had to explain why the police would have moved the smaller fan into the corner of the room and then thrown the duvet onto the floor, followed by a pair of Reeva's jeans. All of this would have had to have been done before the photographs were taken at 05:58 without knowing Oscar's version.

Number 7
– Oscar's failure to deal with the duvet on the floor ‘led to the accused having to adapt his version to place the duvet on the bed which in turn led to a contradiction (Number 8) of when he last saw the deceased'.

Number 8
– During the bail application, Oscar claimed he never saw Reeva get up as his head was in his hands and it was pitch black and she was behind him. Nel argued that Oscar then gave several contradictory versions about the duvet, including ‘Reeva had the duvet over the bottom part of her legs' and ‘I could see the duvet going up, that is all I could make was a silhouette … I presume that it was her legs under it …'

Number 9
– The state argued Oscar's version about him wanting to cover the blue LED light emitting from the amplifier is so improbable it cannot be reasonably possibly true. ‘He had to ensure that he remained with his back to the bed in an attempt to explain why he did not see the deceased leave the bed.'

Number 10
– Nel believed the time-and-position adaptation created a further domino effect more devastating to Oscar's version than he could have foreseen. ‘It must be impossible on his version for the denim, which he had in his hands, to land on top of the duvet if the duvet had not already been on the floor.'

Number 11
– Nel insisted it would be ‘inconceivable' that Oscar would have failed to mention in the bail application that he spoke to Reeva when he got up. He believed this must be a tailored version to ‘avoid a negative inference from the improbable version that he woke up and never ascertained where the deceased was'.

Number 12
– On the state's version, Oscar's mosaic continued to fall apart when
he tried to explain his warning to Reeva. ‘At first the accused allegedly whispered to Reeva, however, this changed to – “I did not whisper at her, M'Lady. I said it in a soft manner.” He realised that “whisper” would imply closeness as part of the normal meaning of the word.'

Number 13
– Nel criticised Oscar's unconvincing evidence about the activation and deactivation of his house alarm. ‘Viewed in the light of all the other inconsistencies and contradictions, it becomes significant with the real question being why the accused would even have bothered to deactivate the alarm.' Nel contended that if Oscar was so traumatised from previous events, he would have triggered the alarm. He pointed to a cellphone charger downstairs as evidence that Oscar had gone downstairs to charge his phone.

In short, through the illustration of the baker's dozen, the state was arguing that Oscar's version would have to be rejected because it simply did not make sense.

‘M'Lady it was just so many lies in such a short period that the snowball effect became so evident. He tells one lie and he has to continuously build on it, build on it and it just pick up so ridiculously,' exclaimed Nel. ‘We will argue that the court reject his version that he heard a sound which he perceived to be an intruder. We argue that there was no moving of fans. The fan was in the doorway, the curtains open and the deceased fled to the toilet with her cellphone. Without the moving of the fans and the closing of the curtains the accused's version is just not reasonably possibly true but in fact false.'