Chase Your Shadow (43 page)

Masipa was undermining the defense’s psychiatric and psychological case as thoroughly as she had the part of the prosecution’s case built on the sounds the neighbors had heard. She also turned out not to be as impressed as Roux had hoped by the argument that Pistorius’s disability should afford him a special latitude in terms of the legal interpretation of what constituted reasonable behavior.

‘It is understandable’, the judge said, ‘that a person with a disability such as that of the accused would certainly feel vulnerable when faced with danger. I hasten to add, however, that the accused is not unique in this respect. Women, children, the elderly and all those with limited mobility would fall under the same category. But would it be reasonable if, without further ado, they armed themselves with a firearm when threatened with danger? I do not think so, as every case would depend on its own merits.’

The judge had settled this particular question in favor of the prosecution. Pistorius’s behavior had not been reasonable, which spelled the end of any faint notion he might have harbored in the depths of his mind that he might somehow be found innocent on all charges relating to Reeva’s death. He had consciously, deliberately fired his gun, and that would not go without punishment. He would be found guilty – if not of premeditated murder, then of one of the two lesser charges.

‘The intention to shoot,’ she said, ‘does not necessarily include the intention to kill. Depending on the circumstances of each case, an accused may be found guilty of
dolus eventualis
or culpable homicide.’

In other words, intention to shoot was culpable homicide; intention to kill,
dolus eventualis
. The question now, two hours into the reading of the judgment, was whether Judge Masipa would find that Pistorius had intended to shoot to kill.

‘In this case there is only one essential point of dispute,’ the judge said, ‘and it is this: Did the accused have the required
mens rea
to kill the deceased when he pulled the trigger? In other words, was there intention? The essential question is whether on the basis of all the evidence presented, there is a reasonable doubt concerning the accused’s guilt.’

Judge Masipa returned to Pistorius’s testimony, reiterating that he had been ‘a very poor witness’ and adding that he had been an ‘evasive’ one.

‘The accused was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot,’ she said.

However, the judge added, ‘untruthful evidence does not always justify the conclusion that the accused is guilty’. And although several aspects of the case did ‘not make sense’ and would remain ‘a matter of conjecture’ – among them, why Reeva did not respond when Pistorius asked her to call the police, why Pistorius did not ascertain where she was before pulling the trigger, and why he had fired not one but four shots – the law said that if there was any possibility of Pistorius’s version being true he should be found not guilty of murder.

‘The onus is on the state throughout to prove beyond reasonable doubt that the accused is guilty of the offense with which he has been charged,’ the judge said. ‘Should the accused’s version or evidence
be found to be reasonably possibly true, he would be entitled to his acquittal.’

This brought the judge to examine whether he was entitled to an acquittal on count one, premeditated murder. She was categorical in her findings.

‘In respect of this charge the evidence is purely circumstantial . . . Viewed in its totality, the evidence failed to establish that the accused had the requisite intention to kill the deceased, let alone with premeditation. I am here talking about direct intention. The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder. There are just not enough facts to support such a finding.’

In the space of two hours Judge Masipa had lain to rest the question that had been on the lips of everyone, everywhere, who had been following the case since Valentine’s Day 2013: had Pistorus killed Reeva intentionally or not? Many would continue to believe that he had, but legally that opinion was worthless. It was a blow to the prosecution, but not an unexpected one. Members of Nel’s team had confided prior to the judgment that they were reconciled to the possibility that Masipa would not find Pistorius guilty of premeditated murder. The evidence, all circumstantial, lacked the credibility to prove the charge beyond reasonable doubt. The suspense now centered on which of the remaining two possible charges had convinced the judge more.

Dolus eventualis
was the verdict on which Nel had pinned, if not his hopes, then his highest expectations. Within the prosecution team they believed that the case for
dolus eventualis
, that Pistorius had intended to kill the person behind the locked toilet door, was almost watertight. So much so, that one senior member of the prosecution team confided that he believed Barry Roux had been irresponsible in not persuading Pistorius to plead guilty to
dolus eventualis
– a plea that
the prosecution would in all likelihood have accepted, avoiding the necessity for a trial. Had Roux succeeded in persuading him, Pistorius would have received a more lenient sentence than he was likely to receive from Judge Masipa if she found him guilty. That individual had gone so far as to attribute the decision that Pistorius should face trial to Roux’s desire to milk as much money as he could from his client.

That a member of the prosecution should have said such a thing, without any foundation, offered a measure of the bad blood that had developed between the rival legal teams. The antagonism was mutual. The word from the defense was that Gerrie Nel was a flawed glory-seeker whose ambition had blinded him to the weakness of his case for premeditated murder. He had overreached himself and was now suffering a blow to his pride, in which the defense team rejoiced. But, as to the charge that Roux should have opted for a
dolus eventualis
guilty plea, the individual who made this point had failed to grasp one crucial aspect of Pistorius’s character. Even in his moment of deepest sorrow and disgrace, he held onto the maternal admonition that had shaped every important decision in his life: ‘The real loser is the person who sits on the side, the person who does not even try to compete.’ It would have been impossible for Roux to persuade Pistorius to plead guilty to murder of any kind. It would even have been difficult for him to persuade Pistorius to plead guilty even to culpable homicide. That would have been Roux’s preferred option, but the problem there was that Nel would never have accepted it.

The question now, as the lunch break approached on September 11, was whether the judge would rule out
dolus eventualis
, too. She did, starkly declaring, ‘The evidence before this court does not support the state’s contention that this could be a case of
dolus eventualis
.’

Pistorius’s reaction was not as might have been expected. No description of Reeva’s wounds had passed the judge’s lips for an hour and a half, yet once more he was shaking, biting his lower lip. But this time he was fighting back tears of relief and joy.

Roux did not move a muscle, though inside he was elated. Nel had remained impassive throughout the judgment, but not any longer. He shook his head vigorously.

As if responding to the prosecutor’s dismay, the judge analyzed her own finding. It rested to a significant degree on Pistorius’s reaction immediately after the shooting.

‘The evidence shows that from the outset the accused believed that, at the time he fired the shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident.’

Among these people, the first had been the Silver Woods estate manager, Johan Stander, at 3.19 a.m., five to seven minutes after Pistorius had fired the shots; Stander’s daughter, Clarice, three minutes later; a few minutes after that, Dr Johan Stipp; and at about 4 a.m., the police.

‘Counsel for the defense correctly argued that it was highly improbable that the accused would have made this up so quickly and been consistent in his version even at the bail application before he had access to the police docket and before he was privy to the evidence on behalf of the state at the bail application.

‘The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.

‘How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively
foresee this as a possibility, that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.

‘To find otherwise would be tantamount to saying that the accused’s reaction after he realized that he had shot the deceased was faked, that he was play-acting merely to delude the onlookers at the time.

‘Doctor Stipp, an independent witness who was at the accused’s house minutes after the incident had occurred, stated that the accused looked genuinely distraught, as he prayed to God and as he pleaded with him to help the deceased. There was nothing to gainsay that observation, and this court has not been given any reason to reject it, and we accept it as true and reliable.’

The lunch break came and the judge left the chamber. June Steenkamp shook her head. Barry Steenkamp revealed no emotion at all. A female cousin of Reeva’s broke into sobs, as did Reeva’s best friend, Gina Myers. Pistorius, sitting perfectly still, wept too. The tears he had been containing welled up, as if he were not quite ready to digest the enormity of the judge’s words. Aimée ran forward to his side, smiling as she had never done since the trial began, put her arms around him and kissed him.

Nel left the courtroom devastated, members of the prosecution team said. The supposition among observers in the public gallery was that in due course he would lodge an appeal, but meanwhile the irony could not have failed to strike him that a witness he had brought to the stand had turned out to be the best witness for the defense. Johan Stipp had not only undermined the state’s case when he testified about the sounds that he had heard, effectively confirming Pistorius’s version of the sequence of events, but he had drawn attention to Pistorius’s frantic pleas to try and save Reeva, barely fifteen minutes after shooting her

Roux, who had warned his legal team the night before the judgment to brace themselves for the possibility of a
dolus eventualis
verdict, was a picture of barely contained euphoria. ‘It’s going to be “culp”! It’s going to be “culp”!’ he smiled to his confidants.

Roux and Nel found themselves together in a back passage of the courtroom building, by the judge’s chamber, for fifteen minutes during the lunch break. They did not talk to each other.

Court resumed at 14.16.

‘I now deal with negligence in culpable homicide cases,’ Judge Masipa began. ‘In determining whether the accused was negligent in causing the death of the deceased, this court has to use the test of the reasonable man.’

The judge provided a hypothetical example of a possibly reasonable response to a perceived threat. ‘If the accused, for example, had awoken in the middle of the night and in darkness saw a silhouette hovering next to his bed and had in a panic grabbed his firearm and shot at that figure, only to find that it was the deceased, his conduct would have been understandable and perhaps excusable.’

Seeking excuses had been Roux’s purpose in providing ample evidence of Pistorius’s troubled childhood and, in particular, the influence his mother had had in shaping his perception of crime. The judge dispensed with this line of defense in less than a minute.

‘Growing up in a crime-ridden environment, and in a home where the mother was paranoid and always carried a firearm, placed the accused in a unique category of people. This would explain the conduct of the accused that morning, when he fired shots at what he thought was an intruder, it was argued.

‘I agree that the conduct of the accused may be better understood by looking at his background. However, the explanation of the conduct of the accused is just that: an explanation. It does not excuse
the conduct of the accused. Many people in this country experience crime, or the effects thereof, directly or indirectly, at some time or another. Many have been victims of violent crime, but they have not resorted to sleeping with firearms under their pillows.’

Neither was the judge persuaded by the disability argument, noting that ‘millions’ of South Africans felt as vulnerable as Pistorius did in the face of crime.

‘The accused had reasonable time to reflect, to think and to conduct himself reasonably. On the facts of this case, I am not persuaded that a reasonable person with the accused’s disabilities in the same circumstances would have fired four shots into that small toilet cubicle. Having regard to the size of the toilet and the caliber of the ammunition used in the firearm, a reasonable person with the accused’s disability and in his position would have foreseen that if he fired shots at the door, the person inside the toilet might be struck and might die as a result.’

Inexorably, the judge’s findings were leading her to one conclusion, and it came in the last act of the day’s drama.

‘I now revert to the relevant questions.

‘First, would a reasonable person in the same circumstances as the accused have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door might be struck by a bullet and die as a result? The second question is: Would a reasonable person have taken steps to guard against that possibility?

‘The answer to both questions is, yes.

‘The last question is: Did the accused fail to take steps which he should reasonably have taken to guard against the consequence?

‘Again the answer is, yes. He failed to take any step to avoid the resultant death.

‘I am of the view that the accused acted too hastily and used excessive force. In the circumstances it is clear that his conduct was negligent.’