Oscar Pistorius’ Sentencing: The Intricacies


The South African judicial system requires that you bow each time a judge or magistrate enters or leaves a court room. That generally means a day full of at least six bows.  In cases beset by intermittent adjournments, there can be far more than that. My rudimentary algebra tells me the 43 days of the Oscar Pistorius trial involved 258 regular bows, and at least as many unscheduled ones.  The toll on a court reporter’s back is not insignificant. That and buttocks of tempered iron, wrought by hours spent on bare wooden benches, are two of the reasons I admire them most. The other is their ability to absorb information like sponges soaking up the last of the bathwater. Distilling complex legal argument while considering facts of varying degrees of relevance requires powers of concentration usually associated with spoon-bending and levitation.

It’s why those journalists not accustomed to the rigours of criminal jurisprudence emerge from court each day looking a little shell-shocked while the legal veterans stride out with the confidence of a Cote d’Azur gigolo. Some even appear a trifle smug – and rightly so. They are the eyes and ears of a society which must be the ultimate arbiter of whether justice has been seen to be done.

It would be an exercise in self flagellation to suggest that accuracy, balance and fairness are alien concepts to the legal virgins amongst the ***Fourth Estate. The pervading view of the media aside, any journalist worthy of the name understands the primacy of those concepts. It’s just that – in the context of a criminal trial, in particular – keeping up with the facts can be pretty damn difficult.

At resumption of court proceedings last week, some of us were shouldering that burden less elegantly than others.  I noticed during nightly replays of the court feed that my head was almost permanently bowed and, when it wasn’t, I wore the look of someone who’d forgotten what day of the week it was.  Apparently, when it comes to my expressions, focused and confused are indistinguishable.

OSCAR_2Argument ahead of sentencing is an alien concept to many of the foreign journalists covering the trial, certainly as far as calling witnesses is concerned. Some were bemused that it isn’t left to legal counsel to make the case for a harsh or lenient sentence.  From my vantage point on the second row of the public gallery, I found their  scepticism had merit: to what extent does lay testimony, in particular, fortify the chaff rather than reveal the wheat? On the other hand, who would deny the families of victims an opportunity to contextualise their loss?

We’ll be better placed to gauge the impact of last week’s testimony when Judge Masipa hands down sentence on July 6.  Her response to some of the issues raised by both Barry Roux and Gerrie Nel will likely be lost in the clamour around the form and duration of the sentence. But, her contribution to the continuing debate around the perceived bias of expert witnesses in particular, as well as the line between legal and direct intent will be vital.

Much of Roux’s closing argument was directed at sections of society which he said had wilfully confused *Dolus Eventualis with **Dolus Directus. In other words, despite findings to the contrary, Oscar continued to be cast as the villain who had intentionally shot and killed his girlfriend, Reeva.

He clearly wasn’t suggesting Masipa was guilty of the same conflation, but it’ll be interesting to hear her thoughts on the issue.

If society has refused to accept the findings of two courts, and continues to believe Oscar charged down the passage to his bathroom with ‘evil intent’ then questions might well be asked of the role of the media in perpetuating that belief.

And, if Roux is correct, perhaps there’s room to reflect for both courtroom veteran and novice.  In between bows and posterior cramp, that is.