On Law, Other Stuff

It’s not that simple…

This is the first and last thing I will say about Oscar or the crime or his sentence or about people who talk about him or his crime or sentence. But I do feel compelled to add my bit. Why? Because I can and because I feel strongly about this.

Here’s the thing. Since the world of law has moved from the courtroom into the lounge/TV/canteen/laptop/anywhere else, the entire world has become a legal expert. Everyone feels inclined to want to comment on whether the accused is an evil, cold-blooded killer or a compromised person who suffers from certain anxieties or whether the legal team should have put up certain evidence ( or used  certain expert witnesses) or whether the court has missed a vital piece of evidence or misconstrued the law or anything to do with the trial which has become a topic of conversation everywhere. And I think it’s marvelous that the public is now better informed about how a trial works and who starts with examination in chief first and how aggressive cross -examination can sometimes appear to be and the whole course of criminal procedure. In my own mind, I am still not sure whether the exposure to the media is advantageous or hinders the proper and natural conduct of counsel in arguing a particular matter. But what I do know is that the fact that people have now  seen and heard how (criminal) law works in practice gives them a skewed perspective of their own ability to make an objective judgment or have an opinion  that is properly informed or valuable or even logical, let alone whether the law is fair and just.

Now, don’t get me wrong because EVERYONE is entitled to their opinion because it is a fundamental right enshrined in our wonderful Constitution and it creates debate and awareness and challenges ideas that perhaps need to be overhauled but somehow, in all of this, there seems to be a flaw where opinions are concerned because what  is the value of an opinion if is an uninformed opinion? And I say this with the greatest respect because it’s easy to offer an opinion but it is of little value when it has no legitimate basis. And yet we are all quick to comment and offer our view when our view is only predicated upon a gut feel or a subjective stance or a limited understanding.

So when I hear a seemingly authoritative and unfettered comment on whether justice has been served or not in regard to our double-amputee ,Olympic athlete, and whether it can’t be right that someone only gets 5 years for killing an innocent girl, or that he has suffered enough and should only get correctional supervision I want to explain what I am explaining here, and that is this:

Law is a complex business and an intense discipline which  requires years of study and an understanding of many, many legal principles and thought processes and vastly varied scenarios and a  thorough examination of thousands of cases and millions of provisions in various pieces of legislation that have been dealt with in our courts by persons who have also spent years studying cases and contemplating  how to solve a legal problem: how to restore the balance in society when someone has suffered harm and how best to compensate the injured party or punish the person who caused it and to ensure that the interests of society are best served.

And so how to make it fair and indeed, what is fairness and does it equate to justice? As a young, ambitious, naïve student, I wanted it all to be fair and I wanted the law to make it all fair but somewhere along the line, one becomes abit disillusioned sometimes. I try not to be too much of a cynic about it all when I try to impart to my students some of what I learnt of this wonderful world of rational though and considered logic because I could do that sometimes too. And , no doubt sometimes I do.

But what I wanted to say is that most of the comments that people make about the law ( and let me be specific here, on Oscar) are not fair. They are not fair because fairness is a consideration that can only happen when one is able to objectively come to a conclusion based upon a thorough assessment of all the particular facts of a matter with a thorough knowledge of how the law applies to these particular facts.

And the truth is that very few can really say they know all the facts unless they have heard EVERY bit of evidence ( or read every word of the judgment if they missed some of this during  the trial and even then, that may not be entirely accurate)  and even fewer can really comment much on the law unless they have studied the law or practised law in any way.

So yes, have an opinion but be hard on your opinion and ask whether., in all honesty your opinion is fair.

Just saying.

8 thoughts on “It’s not that simple…”

  1. Very eloquent blog and a good summing up of the complexities of law which does highlight the fact that the common souls opinion is non other than that an uneducated opinion but in law I have seen that too often one cannot see the wood for the trees and whilst one cannot oversimplify law one can expect that it would be better and I’m not saying I’m 100% right , to see the correct conviction arrived at than to applaud a judge for her well balanced and thorough application to brilliant sentencing for the incorrect one 👍

    1. Hullo John and thanks for taking the trouble of replying to my blog- wish more people would be prepared to air their views as such!. So, I would like to say this 1. It’s difficult for me to formulate a specific response to your general view that “”ïn law, I have seen that too often, one cannot see the wood for the trees” since I have no idea which specific case you are referring to. Perhaps you could give me some more detail here? and 2. I’m not quite sure what you mean by “one can expect that law would be better”as the word better implies that there is something against which law can be measured as it is comparative word and I can only assume that you mean, more just? Or fair? If so, then I believe that this has already been answered in my original comment? if the legal reps decide that the conviction is based on an incorrect interpretation of the law, then the law provides for a right of appeal as it unrealistic to expect that every decision is necessarily correct. However, even if the conviction is wrong, she can only pass sentence based upon her finding in the judgement, and in this sense, my view is that she was entirely correct.

  2. My pleasure Dominique, let me rephrase what I meant in 1, what i was trying to say was that in law there seems to be such an emphasis placed on the technical aspect of sentencing for example the sentencing according to section 276 1 (i) which allows for 1/6 of the sentence served, before possible conversion at the discretion of the Correctional commissioner versus for example section 276 1 (b) which allows for 1/4 to be served etc. The point being, that its not a science and a different judge could have applied either of the above but with fewer years, turning it into a mathematical equation of more times less, or less times more, or even a non custodial sentence and blah blah blah……..so I see science being mixed with “discretion” which can make a bit of a mockery of the basis. Its like going to huge pains to ascertain the value of a company by due diligence of every financial aspect and projecting profits, forwards, backwards inside out……and then saying ok well, thats the definitive number, now lets just use a multiplier of 2 or 3 or 6 ?? get my point. So if a gun was discharged unlawfully and the cause of the accused pulling the trigger was a “startle” because a door opened unexpectedly, for example =’s a sentence of 4 years imprisonment, then if no door opens, in another case and the “startle” was merely a perception of a threat in the mind of the accused, how many more years than 4 does that equate to, or if the door only “half opened”, then what sentence does that call for ? For me that is a scenario where unneccesary attention is being paid to the detail, but that is not whats important (hence wood/trees). What is important ? That brings me to your questioning of the meaning of my statement with my poor choice of the word “better”, which you pounced on 🙂 forgive me I am a layman, yes I should have probably used a word like just, or fair. So in this particular case, where my opinion, is that the conviction was hopelessly wrong, the system must first cumbersomely grind through the whole process of closing arguments during sentencing and another week of court procedures to finally arrive at the point when sentence is painstakingly passed down and all the technicalities of the aforementioned sections are considered…….when ultimately the punishment (or sentence) does not fit the crime ! So the lack of procedure for appeal on conviction prior to sentencing does not exist which makes no sense at all, but lets not digress there, because that is no doubt fraught with complications like the reality of the amount of time taken with the appeal process and the convicted therefore remaining in “no mans land” etc. So in my opinion (and here is my conclusion) if you or I were the judge and lets just consider the undisputed facts, nothing else, (no lamps, no gastric content, no cricket bats etc) just a closed door, 4 rounds (not 1), of lethal ammunition fired at virtually point blank range by the accused into a cubicle the size of a cupboard and when he was asked, why he didn’t for example, fire a warning shot into the shower, his answer was that the ricochet could have injured him, must i conclude that he had the presence of mind to be cautious in that regard, but did not have the presence of mind to foresee that he may kill whoever was behind that door under a hail of black tallon ammunition ? That is quite frankly laughable, but moving on…..if you or I were the mother or father of that child (and how precious are our own children, lets think of them to remind us of how the deceased parents would think)who was taken away through the accused unlawfull actions, and we listened to a sentence handed down, that will most likely result in a mere 8 months behind bars and in month 9, the accused can be floating on his pool floater, iPod in his ears, bowl of popcorn in hand watching the rugby on his flat screen TV (this is house arrest) would we consider that a just sentence ? So yes, I think the layman expects the courts to get the conviction correct and first time, without an appeal process being necessary, considering the seriousness of this crime, I don’t think that is too much to ask. If you remove all the circumstantial evidence which ultimately played no part in this case, it was not complicated. So lets see if there is an appeal, if there is not, then judge Masipa has sent a message out there to all women through her conviction and sentence, that violence and killing of women is not that serious in the eyes of the law…….and that would both scare and anger me if I was of the female gender.

    Just saying

    1. Hullo again ! I really enjoy your interest in this discussion and retort – you deserve a lengthy reply. So let me try to deal with each of your allegations in point form, with a proviso that I am not a specialist in criminal law and have not considered the specific provisions of the CPA for many many years , though it’s not really necessary for purposes of my reply.
      1. Re: your comment that the law tends to emphasize the technical aspect of sentencing and that it’s not a science and a different judge may have found differently:
      You are quite correct. Law is not a precise science at all. It is the exact opposite, being a consideration of the specific details of the facts of the case in question, as presented by the legal reps in evidence and based on past precedent (case law) and similar cases, (note , not the same but similar cases as no 2 cases are ever the same, ) AS well as distinguishable ones, that the judge comes to a decision. Unfortunately, once again, it’s the media who have dissected the case and cast their own (subjective and non-legal) view of the sentence as being calculated which I feel is most unfortunate. Even though the conviction may have been wrong (ie culp and not murder , which I feel is a strong possibility, based purely on the reasonable foreseeability issue that firing 4 shots into a confined space , knowing full well that someone was there, but going ahead anyway), once a finding of culp was made, the sentence MUST be made in accordance with such finding. My view is the judge, quoting distinguishable and similar cases, came to the sentence of 5 years. Whether the 1/6 rule applies or not, cannot be indicative of the allegation that it was calculated. His parole is not in issue yet.
      And so, yes , the Judge always has a discretion. But it is a discretion based upon precedent. It cannot be anything else and indeed, it is all in the detail. So each aspect must be considered in great detail to ascertain the degree of threat.
      2. Re: your comment about lack of procedure of appeal prior to sentence: This is slightly flawed logic (with all due respect) in the sense that without the sentence, the conviction has no effect and therefore, as cumbersome as it may be, the process of appeal (against either conviction or sentence or both, if the State chooses, ) can only take place AFTER sentence.
      3. Re your comment about the undisputed facts and his response of potential injury to himself. Firstly, the unfortunate aspect was there did seem to be a few unanswered questions (not having read the judgement or heard the full one, and only snippets) but , in my mind, your comment about his presence of mind goes to the exact crux of this issue (and is why I think her sentence was appropriate) And it is this: the “reasonable man” test in law tries to ascertain what the appropriate response of the reasonable man in similar circumstances would have done, and I don’t know what the mindset could possibly have been of THIS specific “reasonable man” since there isn’t one such as this. A double amputee who lost a mother at a young age, an absent father , and a young man who has all sorts of vulnerabilities. I’m not sure there are many accused’s like this with a similar history,, if any, and most certainly NOT one who became an olympic athlete with all the psychological aspects that must accompany this.
      And so, this is a very unique “reasonable man”and it is thus a very tricky thing to ascertain what the ” reasonable response should have been when someone on stumps hears something in the bathroom and fears for his life, whether the door opened or not. But yes, we know his action was not commensurate with the threat which is why he is being punished.
      3. This case was largely, if not solely based upon circumstantial evidence, so one cannot “remove it”as you suggest and I think its unrealistic to expect the Judge to “”get it right”” every time, irrespective of the seriousness of the offence, (even though I do consider this to be a very serious crime) That is idealistic and is exactly the reason we have a hierarchy of courts.
      And finally, I must say that in all honesty, I do not believe that the message is as you say (that violence and killing of women is not serious) because that does NOT take into account the particular offender, and as you know, this is one of tHREE factors (other than the last consideration of mercy ) that the court must take into account. It is precisely this aspect which would make this case distinguishable from any other and I think this was bourne out in her sentence , so to disregard the particular circumstances of THIS particular offender would be patently unfair.
      Have a look at the GUARDIAN link I shared. I think it’s extremely valuable and encouraging in it’s identification of the unique role players in this matter: a black woman judge , whose background has been in fighting against abuse of women and the accused, a white male. And the finding of course.
      And one last comment. As horrific as the crime is, causing utter trauma to the Steenkamps for the loss of the child, (though by all accounts they felt the sentence was ok..or didnt they? ) perhaps it’s precisely because of my role as a mother that I feel sorry for the humiliation of this man…who also happens to be someone’s child.

      1. Hello Dominique

        You clearly enjoy a debate, and I too enjoy your interest in this discussion !

        Ok so we will probably never agree on this issue, simply because….you were an officer of the courts and in my opinion, you will tend to have a bias toward defending the legal profession and its systems and I am a layman, who simply attempts to apply what would seem like reasonable logic, in an effort to reconcile what is fair and just in the eyes of the common man. I will concede that the handing down of justice/sentence is no simple matter and especially given that our legal system, is based on precedent and not a bill of rights. Therefore it is logical to me, that the fewer cases from which there are to establish precedent, the more likely there is to be a variance in terms of the sentence applied for a particular conviction, for which there is no “carbon copy” precedent.
        Therefore the possibility to “get it wrong” is proportional to the aforementioned. If the tests for Dolus are purely subjective and the accused’s state of mind, is crucial to establish wether intent could have been proved and this is further muddied, by the fact that the reasonable man test can’t be applied, because of the accused’s particular disabilities and the history of what he has been subjected to, then where does that leave us ? Well, Masipa went on to say, that the accused testified to say, “he didn’t intend to kill the deceased or anybody”, theres a gem, I wonder what else he could have been expected to say, unless he wanted to incriminate himself. So if the state then had to prove ,that the only possible state of mind was intent, in light of the accused testimony to the fact that it wasn’t, even if the facts of the matter are completely obvious to the judge, the accused simply gets the benefit of the doubt. Charming! I put it to you, that the accused is very much “the reasonable man” when it suits him.

        In your reply you state that his presence of mind was “the exact crux of the issue” and then you go on to say, that that is why you think his sentence is appropriate, I battle to reconcile how how the judge can just accept that his state of mind, was as he stated it to be, furthermore the suggestion that the law requires or would take into consideration, that one must “morph” the reasonable man test, to one of “the unique reasonable disabled man”, due to his background makes a mockery of the test. That would suggest, that if you are disabled and have lost a mother at a young age, you are less likely to be able to determine right from wrong ?? So I do not see why this should influence the sentence and even more so, this seems to have influenced the judges decision as far as the conviction was concerned.

        Moving on to your “and finally”, where you say that you do not believe that my analysis, that the judges ruling sends the message that violence and killing is ok, because that does NOT take into account the particular offender. I struggle with that too, as what you are again suggesting, is that this offender should receive special treatment. Wrong is wrong, wether you are disabled or disadvantaged, the accused is educated, intelligent and familiar with the gun laws. So in contrast to what you are say, I think it would be patently unfair TO, take the above into consideration for sentencing, what message does that send out ? If you are disabled you can blaze away ?

        You then went on to say “one last comment” (which was after “and finally”), just saying. I don’t think that the Steenkamps realised, that 5 years could actually be 8 months and then in the pool on the lilo, so whilst they seemed to accept it, I’m not convinced that they understand it. Sure he’s been humiliated…by himself and the fact that he has REFUSED to be honest in his testimony, the closure that the Steenkamp’s needed, was not only an appropriate sentence, it was to understand what happened that night, and if you believe that Oscar gave a true account of what happened then I am surprised, no one gives 3 or 4 versions of the truth, so he has not given them closure. So whilst you are a mother and its for that reason that you feel for his humiliation, I understand that, but it certainly can come nowhere close to how a mother or father could feel about the loss of a child.

        I have time to write this, as I am sitting on an aeroplane travelling back from Kenya on a sat afternoon, after some business meetings (not sure why I felt the need to say that, other than if there are any other readers of this blog, they may be thinking, does this guy have anything else to do !!?) So we had a very interesting dinner last night and even tho we were in a restaurant in Nairobi, with me being the only South African resident at the table, the topic of conversation moved onto…..would you believe it…Oscar trial ! (and no I did not steer it there). There was a lady there from Coca Cola, who’s intelligence and opinion I have high regard for, who had in fact followed the case intently and had some strong opinions on the matter. A healthy debate ensued and it was unanimous, that the men around the table thought one way and the women another. This is consistent with what I have experienced back home. So that was then discussed at length, the fact that women, tend to give Oscar the benefit of the doubt and show mercy, even though one of their own gender was killed unlawfully, whilst men are convinced that this was an intentional act of murder. Why is this ? My opinion is that women and men think differently anyway, there is no debate there(so that is actually fact :). Men know how men think and thats why Oscars actions are consistent with how we know a man of his nature and frame of mind, would have thought, under those circumstances. Women on the other hand, are applying their(feminine) thought process, in their reconciliation of what he was thinking(In other words, that would mean, that Oscar would had have to have, thought like a woman)…….and therein, is the problem.

        Just saying

  3. Hullo John, As much as I find this whole Oscar thing fascinating, tragic, thought-provoking and complex on so many levels, this has to be my last word on it…..simply because it’s more fun debating verbally in a sense, it’s time -consuming, and of course now there are new developments in the whole thing (as expected, an appeal from Nel) which makes this debate abit pointless,
    So…..very very briefly …your comments on the diversity of how men and women think is perfect and spot on. Indeed, women feel as though they want to nurture, protect, empathize and men are (generally) more aggressive and hard hitting….which accounts for Redi Thlabi’s comments in the Sunday Times today too about how Arnold is still lambasting the prosecution and June has in a sense expressed that she feels he has already been punished and seeks no more revenge. And of course this all makes sense too.
    But 2 things I have to mention re your last reply:
    Firstly, I would like to think that I am not biased as such but perhaps merely have a keener insight into the complexities of how the legal system works (hence my original blog, it’s not that simple….) and indeed we DO indeed have a very developed and well-constructed Bill of Rights in our new Constitution (in Chapter 2 ) which sets our all fundamental human rights and is our overriding source of law, other than legislation and case law
    And then regarding your other points re his intention to kill etc…perhaps you missed my point about the fact that I DO think that the law was incorrectly stated since it seems a direct case of dolus eventualis (look at previous comment where I do believe he had reasonable forseeabilty and nevertheless went ahead. ie murder) and hence there will be an appeal on the law
    However, this does not negate the fact that sentencing does take into account the personal circs of offender (which is correct I believe ) and I also DO believe that the competent sentence would have been discussed with Steenkamps (as I’m sure that they would have been in constant discussion with Nel) and they would have been told of the 5 year/part sentence served before Court came back that day.
    But of course, now more books from June, from everyone , and an appeal from the State …but another relevant article in Sunday Times referring to the GENERAL conditions in jail that correctional services should be focusing on in order to rid the inequality of a rich/poor prisoner…All relevant…..all sad…..and BYE FOR NOW! Thanks for thoughts! Been fun!

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