It’s fine when rusks and shortbread crumble, but when advocates start doing the same it's not a pretty sight.
At the end of the court session, Roux apparently forgot that his microphone was still live and was heard to mutter, “Ek gaan verloor” (I’m going to lose). It’s interesting that he felt that it was all about him losing, rather than Oscar.
Read: Oscar – Roux's rants against the media
The Supreme Court of Appeal was very impressive, with excellent judges challenging the claims of both sides – in a way the public had been longing to hear for a long time. Maybe Roux was lulled into an illusion of excellence by Judge Masipa’s extreme sympathy and passivity.
Nel presented the case for a murder conviction ably and crisply, and was well able to answer all questions.
A loud hum of humbug
Roux, however, floundered and never seemed convincing. He squirmed, stuttered and flapped, and seemed more intent on defending himself than defending Oscar. Evasive and awkward, his arguments fluttered around. He didn’t answer the judges directly, but kept on dodging questions and focusing on irrelevant points. He repeatedly said, “I’ll get to that later” but never did.
When a judge pointed out that the toilet in Pistorius’ house was really small, with no place to hide from the bullets, he claimed that it would have been easy to hide behind the tiny portion of wall to which the door was fixed – and wistfully revisited some of his favourite arguments from the trial.
He harped on Oscar’s lack of two legs (not entirely accurate!) as though it should be a reason for exoneration.
He also insisted that Oscar’s anxiety disorder (never convincingly established) was an adequate excuse for the shooting, leading one of the judges to remind him that having an anxiety disorder hardly authorises someone to shoot at will.
Read: Pistorius has no mental defects
The joy of good judging
The judges were outstanding, restoring one’s faith in our legal system. It’s such a pleasure to watch genuine experts show their skills. They had clearly read the transcripts and Masipa’s odd decisions attentively. They were able to identify serious flaws, and I was delighted to hear them focus on some of the examples I pointed out during the trial.
They found it hard to understand how Masipa could have praised the State’s ballistic expert as excellent, but then go on to ignore all his findings and forming her own conclusions that contradicted his.
Read: Oscar's alarming array of ‘experts’
They demolished the absurdity, implicit in the Masipa judgement, i.e. that it mattered where Oscar thought Reeva might be. It is not against the law to kill “a Reeva”. It’s against the law to kill any human being, which is what he did.
It’s impossible for any reasonable person to believe that Oscar fired “zombie stopper” bullets into a small toilet without knowing that the person inside would be killed. Accepting his claim that he didn’t realise it was Reeva in the toilet, he had no way of knowing who it was, why they were there, whether they posed any sort of threat, or how they might try to harm him.
He chose to ignore the possibility that it might be Reeva, or an unarmed (or inadequately armed) burglar. It’s very unlikely that a burglar would enter a house through a small toilet window, rather than choosing the far easier route of climbing onto the balcony. And then, choosing to avail themselves of the facilities before starting to steal stuff? And why would a burglar choose to shut the toilet door, obscuring their view?
He made a load of assumptions! He assumed that Reeva was back in the bedroom, without having checked, even though it would have been pathetically easy to do so. He assumed the intruder was well armed, a good shot, and intent on shooting him.
The skill of mind-reading
The defence argued that because Oscar had a “genuine subjective belief” that he was in imminent danger, even if this belief was false and unreasonable, he couldn’t possibly have intended to act unlawfully.
When we speak of a “genuine subjective belief”, there’s no evidence whatever for this, only Oscar’s self-serving claim that it was so. By definition a subjective belief is internal, invisible, and unprovable. A court should not assume that such a claim is true. Of course it might be true, but so might for instance an accused’s unsupported claim of an alibi – yet any competent court would expect proof of an alibi.
Read: Judge Masipa 'reads' Oscar's mind
And does such a belief justify killing a human being? What if a white supremacist had a “genuine subjective belief” that all black people are inherently dangerous and murderous, and on encountering a black person on his property, whipped out a gun and shot them dead? Surely we would not conclude that because of this convenient belief, he did not intend to act unlawfully by shooting them. If ignorance of the law is not a defence, why should it matter whether someone intended to act unlawfully, or mistakenly thought they were acting lawfully?
Like the unproven anxiety disorder, can this handy, invisible belief justify criminal conduct and provide a magic “get out of jail free card”?
When a fact is not a fact
South African Courts seem to have a unique interpretation of the word “fact”. But we are in very dodgy territory if we allow a trial judge to decide what someone thought or believed on a particular occasion, and have this accepted as a fact – as this would require the skill of mind-reading. (Especially when a judge ignores the person’s actual provable or admitted actions contradicting the “belief” they claim.)
Much is made of the assertion that the trial judge found that he “honestly believed Reeva was in the bedroom”. Any competent psychiatrist or psychologist would hesitate to make such a claim. If I did it, it would be called speculation, but when a judge does it, it’s called fact. Strange indeed!
Read: Is Judge Masipa letting Oscar get away with murder?
The prosecution very reasonably thought it obvious that Oscar must have foreseen a risk of death to whoever was behind the door and “nevertheless decided to take a chance and gambled with the life of the deceased reckless to the consequences”. Contrary to Roux’s argument, by acting on the belief that Reeva was safe in the bedroom and not the person behind the door, he was gambling with her life, choosing not to make absolutely certain of the fact.
Deciding on a new sentence
The Court has adjourned and we’ll hear their decision later. They discussed their options. Everyone seemed sensibly averse to the possibility of a retrial. If, as it appears possible, they agree that the verdict should have been murder rather than culpable homicide, who will then decide on the new sentence?
They could refer the case back to the original court to decide, though, having found that the previous judge erred in applying the law, should the matter really go back to the same judge to decide on a new sentence? It also seems as if they may themselves have the right to decide on the revised sentence.
Roux understandably doesn’t want a retrial or even a major review of sentence, as this will be really expensive. Nel, on the other hand, probably wouldn’t mind, as he could even call new witnesses to argue for a longer sentence.
The state of ‘expert’ evidence in SA courts
More on the 'Oscar oops'
The Pistorians – when love is blind
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.