One Tragic Night (98 page)

While the prosecution team did not appear to be struck by the same internal politics and wrangling, it wasn't without its problems. During the course of the trial Gerrie Nel's style of cross-examination shocked many. Commentators described
it as a ‘scorched earth approach', ‘win at all costs' mentality and suggested that deliberately humiliating or laughing at a witness was ‘atrocious behaviour'.

However, the real criticism of the prosecution would only come after judgment when it appeared to many that the state had got its tactics wrong. The sentiment was that they had overreached, been too greedy and gone for too much right at the outset.

An experienced criminal advocate, who doesn't want to be named, has strong views on the prosecution's approach. ‘I think their strategy was poor. I think they went for a big hallelujah and they didn't have to. If they had just gone quietly for murder and not dressed it up as anything more than just a murder, then it would have been different. There wouldn't have been all this confusion with different kinds of
dolus.
But they had to go with a thing called premeditated murder, which doesn't exist in South Africa, and conflated the issues. We didn't have to have sobbing and screaming and neighbours coming by and trajectories and
kak.
None of that was necessary.

‘Murder in South Africa is not a big deal – we get convictions for murder every day. They put so much extra stuff in to try and dress it up like the number one murder in the world when in fact it isn't. The personalities are irrelevant.'

A source within the state's team disagrees, saying they were never distracted by the personalities or the media attention. ‘It was a case like any other. Honestly, it was just a case and I think our reaction was more that we would want to do it because, even before we went to court and were listening to the media and everyone speculating about oh poor Oscar and poor Oscar, we were just thinking oh those could have been our daughters. Is her life now less important because someone important would have killed her? No way. And for us we just went to court. That's it. We didn't know it would get the kind of attention it did. We knew it would get media attention, but it wasn't important.'

The criminal advocate says that while decisions would have been made by the whole team, the lead prosecutor's style does have an impact. ‘It's Gerrie's style to go for the big thing and we've seen it happen so many times. It's a common error in prosecution. It is his style to go for broke, like he did with Jackie Selebi. This case is simple – it's just a murder. There was a human being in a very small, enclosed place. Another human being fired a gun into an enclosed space – on his own version expecting another human being to be there. That is murder.'

Litigation attorney David Dadic agrees that the state was overly ambitious and its tactics backfired. ‘I do believe that the evidence never got to the point of where they wanted it to get to regarding a conviction of premeditated murder. Should the same energy and resources have been spent entirely on proving
eventualis
rather than the difficult convention of premed, we may have seen a different result.'

In the same way that commentators say the defence was ‘married' to Oscar's bail version, so too was the prosecution ‘married' to its approach to the bail process.

‘When the bail hearing happened, Nel wanted it to be a Schedule 6 premed because he wanted a version from Oscar in bail. He wanted to attach him to a version. He left himself with that difficulty. It was a good move at the time to get a version from Oscar, but it backfired because he had to stick by that charge and prove it. He couldn't leave it as a tactic,' says Dadic.

Like the criminal advocate, Dadic says the court would not have got confused if the prosecution had not led unnecessary evidence. ‘It would have been less confusing in the court's mind. The waters were very coloured by over-evidence – WhatsApp messages and iPhones and all these things that at the end of the day didn't even come into bearing.'

Kelly Phelps says she has never been able to understand why the state persisted with a premeditated murder charge. ‘I have never doubted the sincerity of their belief and their approach, but I have always been absolutely confounded as to what that sincerity of belief is based on. There has never ever been any substantial evidence. If you read the defence's heads of argument, where they have trawled through all the evidence and built up this chronology based on incontrovertible facts, it's the one thing that you can't dispute. I don't see how anyone can read that timeline and not be utterly convinced.'

By presenting a premeditated murder case to the court under the context of massive media hype and live broadcast, the state might also have influenced the ‘court of public opinion'. Those laypeople watching, who don't understand the law, have drawn their own conclusions and these could be incredibly difficult to shift.

Phelps believes it is unfair to Pistorius and to Steenkamp's family. ‘I think it's forever changed public opinion and I don't think it will ever be reversed. I think they've absolutely prosecuted the case in the media,' she says. ‘How many people are ever going to read those heads of argument? I think this really has been trial by media. You cannot prosecute a case on a hunch. It's a disservice to the victim's family because it creates white noise.'

As is inevitable with any criminal case, especially one run so openly and so intensely scrutinised, everyone will always believe their view to be right. The law can also be open to interpretation and so it was with the State vs OLC Pistorius. Everyone had an opinion.

The back door to courtroom GD swung open, revealing two elevated moonboots and a wheelchair. It was carefully steered down the carpeted slope past the teeming public gallery, avoiding several armed officers in bulletproof vests, and through the cordoned-off main courtroom area, before coming to a stop in an open space next to the defence counsel's desks.

Carl Pistorius was parked, ready for judgment. The incongruity of the image of Oscar's brother, one arm in a plaster cast and clearly incapacitated from a bad car accident he had been involved in weeks earlier, contributed to the surreal nature of the entire picture and the almost circus-like atmosphere at play in and around the High Court in Pretoria.

Outside, a fried-chicken stand did a roaring trade to international journalists who had jetted in for the big story. A woman with a quirky tulle hairpiece held up a painted banner reading, ‘Oscar you were, you are, will always be inspiration, a HERO.' Another, advertising herself as Mrs United Nation Limpopo, clutched a large poster featuring newspaper clippings of herself with rhinos, alongside pictures of Oscar and Reeva. A drunk Afrikaans-speaking man in khaki and a red hat danced with ANC members in yellow overalls parading signs calling for Oscar to rot in jail if found guilty. We had gone down the rabbit hole and emerged into this madness.

Inside, the extended Pistorius clan packed into the front row – aunts, uncles, cousins, doting sister Aimee and father Henke, panama hat in hand. Barry and June Steenkamp sat in the same row on the other side of the courtroom, flanked by their advocate and, as usual, members of the ANC Women's League; Barry's brother Mike and his wife had joined the family for the first time, making this the biggest Steenkamp showing since the start of the trial. The Myers family sat a few seats away. Darren Fresco paced anxiously up and down; his wife, in a short
leopard-print dress, sat in the Steenkamp camp. Marc Batchelor, his peroxide hair gelled to a peak, sat in the back benches. The court orderly, responsible for announcing the judge's entrance, manned the front door. The feisty prosecutor, the calculated defence counsel, the team of forensic investigators, the clerk, the stenographers, the journalists who had been following the twists and turns of the case: all the characters were in place, bar one …

A mere two years earlier the Blade Runner had been paraded on the global stage of the Olympic Games, an icon who had overcome adversity to inspire and be lauded worldwide.

It was for a different reason that Oscar was now walking through the media, four rows deep on either side, spilling over with onlookers and journalists and their cameras on ladders, into the courtroom to face judgment in his murder trial. He strode through the pack, his game face on, the image of concentration – a flashback to him on the track moments before the starter's gun fired.

Escorted by his ever-present entourage of familial bodyguards, Oscar stopped to greet various relatives. However, his focus was clear as he headed to the wheelchair and Carl, making for the brother who had been by his side throughout his life, and who had not allowed time in intensive care to prevent him from witnessing this momentous event.

Oscar bent down, kissed Carl on the cheek and gave him a hearty hug, embracing his brother for several seconds. As he stepped back, Oscar's face momentarily betrayed him. Tears weren't far away, but for now he held them in, composed and focused, as he walked to the dock where he took his seat as the accused. The final act of this drama was about to begin.

‘Staan in die hof!
Stand in the court!'

As she did for each session of the trial, Judge Thokozile Masipa carefully made her way towards her chair, leaning against the wall for support. A stand had been placed on the bench in front of her seat, a thick wad of paper perched on it. Without any introduction, she launched straight into business. The only diversion was first to tell the accused that he could remain seated until she instructed him to rise.

Oscar gave little away, staring intently at Masipa as she began to read from the
bundle of white paper on the stand in front of her. ‘In 2013 the accused stayed at house number 286 Bush Willow Street …'

The expectation had been that Masipa's ruling would be dull and dense, containing summaries of the evidence of each of the witnesses who had testified and extensive reference to case law and precedent. The thinking was that she would deliver her judgment over two days and keep her cards close to her chest, only revealing towards the end which way she was going to rule.

Masipa ran through her summary of the facts of the matter, those issues that were not in dispute and Oscar's plea explanation at the start of the trial six months earlier. The court was hushed, but for the incessant hammering on laptop keyboards. Some people scribbled away on notepads. Masipa first set out ‘the issues', explaining that these were limited to whether ‘at the time when the accused shot and killed the deceased, he had the requisite intention and if so whether there was any premeditation'.

She did not see the need to summarise all the evidence placed before her. ‘It shall not be possible, nor will it serve any purpose, to rehash the evidence in detail,' she explained. ‘It shall also be fruitless to repeat every submission by counsel. This court has, however, taken all the evidence and that includes all the exhibits and all submissions by counsel into consideration.'