Updated 24 August 2015

More on the 'Oscar oops'

Cybershrink explains how the law provides for a possibility, not a compulsory release, and how Oscar has not been denied anything he has any right to.


So, it turned out that the announcement of Oscar’s imminent release from prison to the luxurious punishment of his uncle’s mansion was premature.

Little understanding of the facts

If such high profile cases get messed up over such basic issues, what hope do we have of something resembling justice within our system? 

Read: What it's like in a South African prison

Social media have been briefly ablaze with displays of rather impressive ignorance – showing  how many people, many with fierce feelings about the case, actually have very little understanding of the facts. For instance, there are people online complaining that nobody should say anything nasty about this nice guy, “because he has served his time”. He most certainly has not. He has served only a tiny portion of the merciful sentence he received from a highly sympathetic judge.

Others insist that he “has paid his debt to society”. That’s an even more dodgy concept. “Society” has not presented an invoice, expressing what it believes the extent of that debt to be, and has certainly not collectively decided that this has been paid in full. I don’t understand how some individuals presume to represent and speak for “society” and assume that their feelings of satisfaction are representative of society at large.    

It is clear that many people don’t understand the law. It says a person may be eligible to be considered for release after they have served at least this tiny proportion of their jail time. (This has nothing at all to do with justice; it’s just an attempt to reduce over-crowding in our prisons.) The law provides for a possibility, not a compulsory release. Oscar has therefore not been denied anything he had any right to. There’s been a delay in applying a privilege he still may be allowed to enjoy, and that’s it. 

One wonders whether, apart from a resolve to be as merciful as possible, the judge might have anticipated that a short sentence would activate this “get out of jail free” card.  If she’d sentenced him to 5 years and one week, he wouldn’t have been eligible for this major discount. She was surely fully aware of the advantages of that period.

Read: Oscar’s three sources of danger

Though the petition from the Progressive Women’s’ Movement of South Africa (PWMSA) may have led to the review,  the poor timing of his release – during Women’s month – and just after Reeva’s birthday, was clumsy, bad-mannered, stupid, thoughtless and crass. But that is not actually why the release has been delayed. There were serious procedural errors, of a kind we’ve become distressingly used to from many government departments. The error should not have been made at all, or been spotted and corrected at a much earlier stage.

What was the unseemly rush about?

Many of us cheered when we heard the announcement by Correctional Services Minister Michael Masutha. We’re not used to a minister acting promptly, sensibly, and in response to wide public distress. Hats off to him! As I pointed out earlier, there was an unseemly and peculiar haste in rushing him out of jail, which did not suggest that a sensible and objective review of the situation had taken place.

Apparently the minister and his advisors discovered that the decision to release Oscar on correctional supervision had been made BEFORE he had served the required minimum of one sixth of his sentence.  Section 73(7)(a) of the Correctional Services Act, Act 111 of 1998, states that: “A person sentenced to incarceration under section 276(1)(i) of the Criminal Procedure Act, must serve at least one sixth of his or her sentence before being considered for placement under correctional supervisor, unless the court directs otherwise.” Yet this decision was made on 5 June, before that necessary condition had been met, effectively invalidating it.

Read: How does medical parole work?

What was the unseemly rush about? Was there pressure being applied from some mysterious person or interest group to push the decision through? It was a foolish decision, both technically incompetent and likely to offend many people.

Because it would not have been appropriate for the Minister to ban any such release, it has been an excellent move to refer the decision to the Parole Review Board for re-consideration. The Board needs to be thorough and impeccably objective. They need to come up with the best solution for everyone, not just for Oscar, or any other interested party.

Less whining, vomiting and drama

There has been speculation that Oscar and his representatives might sue in response to this delay. This would not be wise. Who would he sue? The Minister has acted on senior legal advice, and within his prerogatives. And, depending on how rapidly the Review Board comes to a decision, such a suit could even delay his release.

But, we need to bear in mind that, in November, the State’s appeal against his conviction and sentence is due to be heard, and  it would surely be best to have Oscar and his lawyers concentrate entirely on the appeal and its consequences.

Read: An open letter to Oscar

If the State’s appeal is rejected, the initial sentence will be upheld, and if the Review Board has agreed on correctional supervision, he could return to plan A, and enjoy a prompt release into the arms of his family. 

If the State wins the appeal, the court could substitute a verdict of murder and revise Oscar’s sentence to 15 years, or order a retrial. In the first case he would want his lawyers to be ready to file a prompt appeal.  In the second case there’d be the ordeal of a second trial, highly expensive for everyone involved, including the citizens of South Africa.

We sincerely hope that this time round Oscar’s team will have learned from the first time round, and that there would be less whining, vomiting and drama – and more competent experts. 

Read more:

Why parole for Oscar Pistorius is perfectly legitimate

Depression behind SA bars

Oscar: why the sick jokes?

Image: Shutterstock

Professor MA Simpson is Health24's CyberShrink. A South African psychiatrist, he qualified in medicine and in psychiatry in Britain. He has been a senior academic, researcher, and Professor in several countries. Read more of his columns.




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