Updated 16 September 2014

Judge Masipa 'reads' Oscar's mind

Few people expected Judge Masipa to make a contentious and provocative decision, at odds with a large body of expert legal opinion on crucial issues.


Some judges tend to quibble and comment a lot during a trial, but Judge Masipa has been nearly silent so we’ve not had any chance to become familiar with her way of thinking.

Those who predicted a "murder" verdict didn't misread the case or evidence, they just didn't foresee such a contentious and provocative decision – at odds with a large body of expert legal opinion on crucial issues.

Possible appeal

Apparently Judge Masipa has the ability to block the State’s attempts to appeal by insisting that the point of difference is a matter of fact and not of law. This would be grossly unwise, however. If she is confident that her eccentric interpretations are sound, she should welcome an appeal, so her judgement can be confirmed by a senior court, and perhaps better explained. If she is wrong, this would be revealed and corrected by the higher court.

Her judgement oddly seemed to change flavour mid-morning after a few adjournments and some urgent whisperings from an assessor. This may be entirely coincidental, but there was a distinct change of gear after the first part, which wisely rejected some of the more desperate and potentially damaging proposals Roux made, to later stages of marked leniency, which led to Oscar’s "dream" verdict.

Read: The absurdities of the Oscar trial

The dark suspicions that arose in social media weren't mollified by the Pistorius family who effusively thanked her. 

Judges are supposed to make decisions based on the law and its definitions, but sometimes their decisions are highly personal interpretations of those parts of the evidence that appeal to them.

Exercise in mind reading

I was surprised that Judge Masipa’s jaw-dropping decision, so scantily explained, seemed on re-reading to be an exercise in mind reading that most "shrinks" would hesitate to attempt. She told us that she had “found” what was transpiring in Oscar's mind at the time of the shooting, and was confident she was correct. Wow!

I don’t recall Oscar ever having specified exactly what he was thinking – and his flood of wildly contradictory excuses certainly don't support the learned judge's interpretation. 

Her views, in fact, were deeply puzzling. Oscar did not, from what I saw, "give a version that was reasonably possibly true". He gave a dizzying series of contradictory versions and a buffet of excuses that absolutely could not, collectively, be simultaneously reasonable, let alone possibly true.

Read: Successes and shortcomings of the Oscar trial

On day two she marginally changed one of her more astounding comments of day one not to correct the misinterpretation of the law, but to make it harder for the State to appeal against her decision.

She had made a comment that seemed to imply that it was somehow illegal to kill Reeva,  but quite okay to kill someone else. Only after her associates had probably drawn her attention to the outrage and confusion this was causing, did she amend her odd comment, changing the reference to killing Reeva “or anybody else”. In this country it’s actually illegal to kill anyone!

Heart-rending displays of anguish

She took an almost sentimental approach to Oscar’s dramatic emotional displays after Reeva’s death, mentioning the prayers, and the grief, and apparently assuming that nobody who had deliberately murdered someone could possibly behave in such a way.

Read: Oscar trial: who stole the show?

I disagree with her, and in my experience and many crime reports, some very wicked and cruel killers have shown heart-rending displays of anguish after a killing, just as some clearly innocent people may seem unexpectedly cold and unemotional.

The decision on the ammunition charge was absurd, and if it were more widely accepted, nobody could ever be convicted for unlawful possession. Oscar said he didn't know it was illegal to have it, but was that true?

He’d undergone training and passed an examination, and most definitely must have known that it was illegal. If ignorance of the law, or ignoring what one does know, is accepted as a defence, it creates a dangerous precedent.

To say he didn't intend to break the law, or that he didn't know it was wrong should be irrellevant. How is it fine to have ammunition without permission or license, locked in a safe where only you control access,  and you know it’s there, and offer no excuse whatever ?

Nel looking bad

As I have said repeatedly, it was seriously unwise for Nel not to have re-opened his case and called further expert witnesses to refute the wild claims of the defence. He seems to have been over-confident. Roux did not earn a positive outcome by technical skill or the brilliance of his witnesses, but by the weakness of the prosecution and the boundless misplaced sympathy of the court.

Read: Why we were so glued to the Oscar trial

Tweetchers get a thrill

As usual, the naïve folks who waste their time analysing tweets have been all atwitter. They remind me of kids who are thrilled to discover that if you poke a frog with a stick it will jump. So they keep on poking at it, and giggling every time it jumps – until the frog is dead. 

I watched one of these twitchers interviewed on the Oscar channel. Both the interviewer and twitcher were astounded at the totally banal figures produced. Wow! Crazy! Like characters in a comic book, they gurgled with delight. 

They were once again stunned to find that there were very few tweets about the trial while it was adjourned and, now, hold your breath here folks, the number of tweets increased markedly when the trial resumed! Amazing! Who could have anticipated that?

Read: Psychiatrist: Why Oscar deserves to be on TV

When the verdict drew near, they were agog to find there were more tweets mentioning Oscar than Ebola or Gaza. Not that there was anything much happening with the virus or the area that day, but, "My goodness, it’s the craziest thing!” The only amazing thing here is that grown people waste their time with such trite nonsense.

Archaic Latin terms

The case has revealed many absurdities and faults in South African law, which need attention and intervention. In the New South Africa, should we really be using archaic Latin terms, rather than language everyone can understand?


Has Oscar’s bad behaviour been irretrievably pathologised? In attempts to excuse his bad choices and conduct, everything he does is transformed into pathology. Dr. D is terribly concerned about his Amygdala, but then she worries about so many Amygdalas . . .

Read: Pistorius has no mental defects

Instead of being just a snotty young man who feels dangerously entitled, his misconduct is labelled as “self-harming behaviour”. As this reinforces his habitual failure to take personal responsibility, it’s the excuses that do him harm.

If the court’s wave of sympathy for him lasts through sentencing, and he gets some trivial punishment without any jail time, we will have our "OJ Simpson moment" – and respect for the law in this country will never be the same again.

Read more:

Is it worth sending Oscar to jail?
Will Oscar get 'special treatment' in jail?
Is Oscar Pistorius really writing a book?

Image: Scales of justice and hammer from Shutterstock

See breaking news and the hottest health tips before anybody else by joining South Africa’s biggest and best health community, like health24 on Facebook now!

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.


Read Health24’s Comments Policy

Comment on this story
Comments have been closed for this article.

Live healthier

Exercise benefits for seniors »

Working out in the concrete jungle Even a little exercise may help prevent dementia Here’s an unexpected way to boost your memory: running

Seniors who exercise recover more quickly from injury or illness

When sedentary older adults got into an exercise routine, it curbed their risk of suffering a disabling injury or illness and helped them recover if anything did happen to them.