This is a difficult piece to write- thank goodness it’s the last one- but it’s important for me to conclude on this since it Oscar has permeated my writing in the last three years and appears in my book which I am just starting to send out into the world. Its working title is Somewhere In Between. I hope you get to read it.
It’s difficult not only because quite frankly the whole Oscar thing is tedious in comparison to world events and climate change and how to engage in a meaning life and of course dragged on for far too long, but because in some respects at least, I have taken a slightly contrary view. But the one thing I can without doubt say is that my writing is not motivated by popularity. I am hell-bent on saying it like it is and making no apologies for it.
Let me preface what I have to say with this: I believe strongly in justice and even more so, in justice being seeing to be done. In a country which cries for some respite from the incessant and pervasive violence to women and children, from child abuse, from high, high crime rates of murder, rape and robbery, criminal justice is imperative. We all want to feel safe – South Africa does not rank highly on the prestigious list of most peaceful places to live. We need to remedy that fast and judicial precedents are a good starting point when it comes to deterring would- be criminals from pursuing hard- core crime.
When Judge Masipa’s verdict of manslaughter was overturned and replaced with murder (correctly so, I believe, since she had seemingly misconstrued that in fact it was a case of dolus eventualis and thus clearly murder) it was Masipa who had to deliberate on an appropriate punishment. In her view, though she acknowledged the “serious nature” of the crime, she cited many mitigating factors, and believed that long-term imprisonment “would not serve justice” in this case. She believed that Oscar had shown remorse, that he was a good candidate for rehabilitation.
Rebecca Davis in her Daily Maverick column https://www.dailymaverick.co.za/article/2017-11-24-analysis-re-sentencing-of-oscar-pistorius-may-strengthen-importance-of-sentencing-guidelines/#.WhsqNbtrzIU reflects on the Pistorius case as occupying ‘a fraught spot in the public conversation because of its lingering ambiguity – in terms of the fact that no comprehensive motive was ever offered by the state for Steenkamp’s shooting.’
And that is indeed correct for the judgement states….
(http://www1.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2017/158.html&query=ZASCA 2017 158 or 2017 ZASCA 158)
[13] The admitted evidence revealed various contradictions in the respondent’s evidence as to why he shot at the toilet door that evening. It suffices to state that these contradictions were so serious that this court in Director of Public Prosecutions v Pistorius supra stated that ‘[i]n the light of these contradictions, one really does not know what his explanation is for having fired the fatal shots’. Furthermore this court said that ‘[h]e paused at the entrance to the bathroom and when he became aware that there was a person in the toilet cubicle, he fired four shots through the door and he never offered an acceptable explanation for having done so’. This court also found that the evidence of the respondent was ‘so contradictory that one does just not know his true explanation for firing the weapon’.
Davis’s analysis of the final SCA judgment is that perhaps it will strengthen the importance of sentencing guidelines.
With all due respect, I’m not sure that the Pistorius outcome is going to do this. Sentencing is not an exact science. Sentencing depends on the triad of relevant factors and it depends heavily on the discretion of the judge.
It is also, unknown to most laypersons, very dependent upon ‘similar’ or ‘distinguishable’ cases and this depends very much on the way in which the South African Law Reports have been noted and published and in particular on the editors of these reports who compile the reports and summarise the thousands of very dreary and factually similar cases which come before the courts.
I can share with you my very limited experience of this because, with a legal background, I also had a brief stint as legal editor and reviewed many of the exceptionally similar facts of cases in which the sentences of the judges varied significantly. Sometimes, the same horrific crime of rape and murder would carry a sentence of 5 years, sometimes 10 years. For a similar accused with a similar personal background and a first offender. In fact, this significant variance in sentence was apparently even different in different provinces.
Of course none of these accused would have been able to afford the costs of appeals which is precisely why they didn’t. Neither would the NPA have bothered to appeal if the sentence were too lenient since they were not ‘important enough’ and the media was none the wiser. All were a homogenous lot of essentially similar persons of class and race and social standing.
Now there’s the miscarriage of justice.
So that’s the one thing I want to say. And in our Friday editor meetings I raised this issue of how the reports needed to be somehow better restructured in order that the judges may easily see exactly what similar crimes carried similar sentences. It is not yet 100% accurate.
The other thing I want to comment on is the issue of remorse and the personal circumstances of the accused and the fact that Judge Seriti felt that Masipa had overemphasized the latter and misdirected herself towards the former.
She was criticized for having too much sympathy for him. She had referred to him as a ‘fallen hero’ and felt that he had suffered enough.
Seriti commented on this as follows:
[21] I find it difficult on the evidence to accept that the respondent is genuinely remorseful. In S v Matyityi 2011 (1) SACR 40 (SCA) at para 47 this court held as follows: ‘After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia; what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions’. As stated earlier the respondent has failed to explain why he fired the fatal shots. The respondent failed to take the court fully into his confidence. To my mind the attempt by the respondent to apologise to the deceased’s family does not demonstrate any genuine remorse on his part. He failed to take the court fully in his confidence despite having an opportunity to do so during the second sentencing proceedings. It is clear herefrom that the respondent is unable to appreciate the crime he has committed. The logical consequence is that the respondent displays a lack of remorse, and does not appreciate the gravity of his actions.
[22] Having perused the judgment on sentence by the court a quo I am of the view that the trial court over emphasised the personal circumstances of the respondent. In S v Vilakazi 2009 (1) SACR 552 (SCA) para 58 this court said that ‘[i]n cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background’. See also S v RO & another 2010 (2) SACR 248 (SCA) para 20 where this court said ‘[t]o elevate the appellants’ personal circumstances above that of society in general and these two child victims in particular would not serve the well-established aims of sentencing, including deterrence and retribution’. Based on the above-mentioned cases I am of the view that the court a quo misdirected itself in its assessment of an appropriate sentence.
[23] The court a quo also stated that in its view there was an indication that the respondent was a good candidate for rehabilitation and that the other purposes of punishment although important ought not to play a dominant role in the sentencing process. The court a quo seemed to have given rehabilitation undue weight as against the other purposes of punishment being prevention, deterrence and retribution. This court in S v Swart 2004 (2) SACR 370 (SCA) para 12 stated the correct legal position as follows: ‘[s]erious crimes will usually require that retribution and deterrence should come to the fore and that the rehabilitation of the offender will consequently play a relatively smaller role’.
Now.
There are two blatantly obvious issues here which, being a court of appeal and thus evidence being only on the court papers, must be brought to the fore.
And that is this:
- None of the five judges witnessed firsthand, the visual spectacle of Pistorius when he sat day after day in the court, retching and crying and if you look at the record or listened to the apology in court would have had the same knowledge Masipa had.
I think this may have had something to do with the fact that she believed, in her heart of hearts, that he must have felt remorse.
And
- Though I have not looked at the comparative facts of the cases Seriti quotes and the fact the personal circumstances should play a relatively minor role and his belief that she overemphasized the rehabilitation aspect,
I have no doubt that none of the accused in those cases had prosthetic legs or was an Olympic athlete.
But what I want to talk of briefly is Masipa. Because in all this mess, the masses ask, ‘how could she be so incompetent ?’
and more ignorantly , ‘how can he be sentenced twice for the same crime! and she got it wrong twice! ) and I feel that it’s precisely because of the prejudiced view of the incompetency of WOMEN , and particularly BLACK women that is so sad.
Read an article in the DE REBUS on this aspect.
‘Lack of advancement of black and female lawyers in the spotlight.’ De Rebus, July 2015:12 [2015] DEREBUS 4
And I want to ask why do we think it was that she felt he had suffered enough? Did she not believe in the functions of sentencing? In deterrence and retribution? Had she not viewed violence against women, and countless cases of horrific crimes.
What was it exactly that made her feel a certain empathy towards this white ‘gun-wielding’ male accused?
I like to believe that she had something of a mother and of a Mandela in her make up. It was of course Mandela that appointed her in 1998 and she was only the third Black woman appointed as a judge at the time. She was described as competent, respected, eloquent and reserved. He was an enlightened, forgiving, extraordinary man.
Neither was she a stranger to horrific crimes. In an article outlining her past experience, https://www.brandsouthafrica.com/governance/developmentnews/judge-thokozile-masipa-reserved-and-astute
It is apparent that she had little mercy for abusive men. She had presided over a number of media worthy cases and shown her willingness to hand out maximum sentences. In one, she had handed down a 252-year sentence to serial rapist and robber, Shepherd Moyo. He was found guilty of 11 counts of housebreaking and robbery, three of rape and one of attempted murder. She sentenced him to 15 years for each of the 11 robberies, 12 years for attempted murder and life sentences for all three rape charges. In her judgement, Masipa is quoted as saying :
“What weighs with me very heavily is that the accused showed no remorse, therefore it is difficult to imagine he can be rehabilitated.”
In another case of a violent crime against a woman, in 2009, Masipa handed down a life sentence to police officer, Freddy Mashamba, for shooting and killing his wife, Rudzani Ramango. During an argument over a divorce settlement in May 2008, Ramango and her aunt, Patricia Ramango, jumped into a vehicle and tried to flee from Mashamba. The officer, enraged, gave chase until they stopped behind the charge office at the Louis Trichardt police station. It was here that he shot at his wife, hitting her seven times in the face and three in the chest. She died at the scene; Patricia Ramango escaped unhurt.
He was tried at the Polokwane High Court with Masipa as the judge. She said the sentence she handed Mashamba was meant to serve as a lesson to police officers that conflict cannot be solved with violence. “No one is above the law,” she said. “You deserve to go to jail for life because you are not a protector, you are a killer.”
I would also have loved a concurring judgement of Mokgohloa AJA, the only other Black Woman judge in this trial.
But I’m tired of all this now. And I’m mostly tired of the vitriol and hypocrisy of the masses, particularly from MEN who are pleased about the doubled sentence.
PLEASE DON’T GET ME WRONG. I’m not displeased that JUSTICE IS SEEN TO BE DONE. (Just as I not displeased that the premeditated of murder of PANAYIOTOU’s wife earned him a life sentence- he deserved this and more)
But I am frustrated with the lack of empathy and the vitriol of the world.
It reminded me of some of the reactions when the #METOO campaigns came out: those from men who thought perhaps too much was being made about the sexual harassment of women.
For it somehow struck me that the more laconic these men became about Pistorius’s fate, the easier it was for them to placate themselves that somehow, they are were ABSOLVED and exonerated from their own indiscretions towards women. That if they could point fingers at Pistorius, they could feel better about themselves.
Isn’t that a sad thing to say? I wish it were not true.
So now I’m ending off now with a hope.
I hope that one day, we can work some more MADIBA MAGIC around the world. I hope that by the time Pistorius gets out in 13 years and five months, we can see that his punishment has truly resulted in the purpose for which it was imposed and the REAL REASON FOR ITS JUSTIFICATION.
And that is that there is a MARKED AND NOTICEABLE decrease in the number of RAPES AND MURDERS in this country.
For the deterrence and retribution aspect it is supposed to serve.
Sadly, I have my doubts.
Niki Malherbe 