One Tragic Night (95 page)

Using this timeline, Roux attempted to show the court that only the defence's version could make sense. He also suggested the court should place more weight on the evidence of the neighbours who were closest to Oscar's house, such as the Nhlengethwas, as they were more believable. In addition, he defended the decision not call a witness to testify that Oscar sounds like a woman when he is anxious because, he argued, the nearby neighbours had done the job. So too had acoustics expert Ivan Lin.

Attached to the heads of argument was a 26-page document effectively aimed at destroying Dr Stipp's version of events. In an attempt to undermine his credibility, it criticised him heavily for the timing of events he gave during his testimony.

‘He was then the only one saying oh, no, that help, help, help, was after the security guards had came to me and after I had made a call at 03:27 and after they had left a few minutes later, which was after 03:30, I heard a man shouting help, help, help and we say, really? Really, because at that time Dr Stipp was at the house of the accused. At that time the accused was … on all the evidence unchallenged, in the foyer with the deceased and with Carice Stander and Johan Stander standing outside, and Dr Stipp examining him. So … examining the deceased. So it cannot be. But I will show you many things about Dr Stipp that cannot be, many many things and Ms Stipp,' bristled Roux.

Stipp claimed he had seen someone walking in Oscar's bathroom after 3:30 – at the same time that, by the accounts of Stander, his daughter Carice and the security guard Baba, Stipp was already inside Oscar's home. The defence was adamant that Dr Stipp, based on the objective evidence, was already out of his own house by 3:27am.

Roux argued that for Stipp to see Oscar through the window, the athlete would have to be wearing his prostheses. This meant Stipp indirectly confirmed that Oscar had attached his legs before he struck the door with the cricket bat, the version the athlete had presented to the court.

The defence counsel also attempted to cast doubt on the testimony of the other neighbours who had testified for the prosecution. He was of the view that
Michelle Burger and Charl Johnson had tailored their versions and that it was unlikely the couple would not have collaborated on them. He also undermined Estelle van der Merwe, stating that her claim that she had heard what sounded like a woman arguing was speculative.

To counter Van der Merwe, Roux pointed out that Mrs Stipp, who was awake just before 3:00am, didn't hear any kind of argument and that the security guards did not notice any disturbance when doing their rounds in the hours before the shooting.

For Roux it was important to cast doubt over any kind of inference that Oscar and Reeva were awake and possibly arguing before the shooting because this suggested a ‘motive' for the murder. But this also meant attacking Saayman's testimony on gastric emptying, promptly challenging Saayman's evidence by reminding the court that it was not an absolute, but rather that the pathologist had only ‘suggested' that Reeva could have eaten two hours before her death and not definitively – there could be a couple of hours variance either way.

To neutralise the contentious WhatsApp messages, Roux directed the court to the Valentine's Day card Reeva had written to her boyfriend. In it she said it was a good day to tell him she loved him. On the defence's version, this was evidence enough to prove the couple was in a loving relationship.

Roux challenged Nel's argument that Oscar was standing in front of the toilet door, talking to Reeva when he shot. ‘The accused was not standing in front of the door. Why, if he wanted to shoot someone in an argument, would he remain in the entrance as if he is scared of whoever was in the toilet? That is far more consistent that he was scared, that he did not trust whoever was in the toilet. Otherwise, yes, walk into the bathroom stand right in front of the door,' said Roux.

He also argued against the contention that it had been a ‘good grouping' of shots. ‘My Lady, what he should say to you and I am not a shot, I have not touched a firearm for many, many, many years, but if you put me two metres from a door and ask me to fire four shots, I am pretty sure I can get a better grouping. If you say to me aim and fire from two metres, My Lady, it is from here where Ms Johnson is sitting, there fire four shots in the door. We must be careful when we look at that grouping and think that is a person 100 or 150 metres away, then it is a brilliant grouping. But two metres away, is that a good grouping for two metres away?' asked Roux rhetorically.

The defence counsel methodically worked through Nel's ‘baker's dozen' of inconsistencies, dismissing them with disregard. ‘M'Lady, if that is a baker's dozen, I do not want to eat those cookies. Because it is not a good one. It is really not a good one,' he said emphatically to the amusement of some in the courtroom.

Roux explained it was expected there would be discrepancies between Oscar's bail application and his evidence in the witness box. He also explained Oscar's apparent memory loss under pressure: ‘This man suffers from a severe depression in that witness box. Not my evidence, the psychiatrist report. Professor Scholtz's report. Major stress. You cannot just ignore that. So when he tells you: “My memory is not very good at the moment.” It makes sense. Do not criticise him for that. It makes sense.'

He also dismissed questions about Reeva's behaviour that had been posed by the state. He didn't think it odd that she had taken her phone to the toilet – it could have been used for light or to look at social media. ‘M'Lady, if you work through the WhatsApp messages, you will find WhatsApp messages from the deceased in the toilet at night. I can understand it. You take it to give you light there. People do it all the time when they get up, with their cellphones. All the time. That does not defy logic. Why must you switch on a light, you walk with your cellphone, especially the younger generation. They … I want to say like battery and torch, but they gel so well with their cellphones, that it is not strange.'

Roux also explained it wasn't unusual that Reeva had not shouted out when she heard Oscar scream because she did not want to give her position away to a possible intruder.

‘She could have done two things. She could have given her position away, she heard him screaming intruders in the house, they must get out. Or she can think I must hide, I must keep quiet. I do not want them to get to me. It works both ways, there is no special potion there. There is no special answer there, there is no special probability.'

Having to his mind answered the state's case, Roux went on the offensive and began to deal with the law. It was important for him to explain what was potentially viewed as Oscar's changing defence or different versions. He also had to prove to the court that it was not the athlete's intention to kill anyone, but that he felt threatened and was acting on reflex.

Oscar could not be considered a ‘reasonable man' by the conventional test, he stated. ‘The law is not that reasonable man from 1960 in his grey suit and his grey shoes. We have moved away. We … we referred to the case to say it has moved on. You have to look at the person in the same position with the same abilities/disabilities,' Roux insisted. He argued that in discharging the firearm, Oscar did so because of an increased startle response. The startle response was reflexive and Oscar could not be held accountable because he lacked capacity in the involuntary reflexive response. He also emphasised that the startle response
was exaggerated or increased due to the ‘slow burn' effect of his disability over years and his consequent increased vulnerability.

Roux pointed to Professor Derman's evidence to back this up and criticised Nel for questioning his credibility. ‘He is highly, highly, highly qualified. He is the most qualified person in the country. Whatever he was saying to the court, he backed up with research, with authoritative articles, publications on that very point. He was not saying something because he says that is what I am thinking.'

The defence counsel then proffered a risky analogy in comparing Oscar to a woman who had been abused over a long period of time and who had then snapped and killed her abuser. He used this to demonstrate his theory on ‘slow burn'. But Judge Masipa, a known advocate for women's rights, was quick to question the analogy:

Essentially, the defence case was that, in the face of danger, Oscar had to choose between fight, freeze or flight and over time the fight reflex had become exaggerated because, with his disability, ‘flight' was not an option. Roux went so far as to demonstrate this by slamming the desk in front of him for effect. ‘You are vulnerable. You have the effects of the “slow burn” over many years. You are anxious. You are trained as an athlete to react to sound, sprinters. We all know him. You are trained. He says, take all those factors into account and he stands now with his finger ready to fire if necessary, and he stands there and then …' Roux banged his hand on wood.

Roux stressed that he was not putting forward contradictory defences and explained what he was asking of the court in his heads of argument:

But Roux did make one significant concession during his closing argument. This was around the shooting incident at Tashas. Oscar took partial responsibility. ‘He is guilty, My Lady, he is guilty on the first alternative, that he negligently used that firearm and causing the discharge. It must be like that. He says that in so many words. He says, “I made a mistake,”' said Roux, raising the question as to why Oscar did not plead guilty on this charge from the outset. This would have negated the need to call several witnesses who discredited his character.

Roux persisted with his client's innocence on the sunroof charges and suggested that Darren Fresco and Samantha Taylor had conspired against Oscar. He insinuated that Fresco had testified to save himself and that Taylor's motive was to get back at Oscar as she believed he had cheated on her. He even argued that Fresco should not be granted indemnity from prosecution, a decision Masipa had to make.

With Oscar's father in the public gallery, having allegedly refused to give a statement to the defence to back up his son's claim on the ammunitions charges, Roux persisted with his client's version. Oscar did not believe he should be convicted for keeping his father's ammunition in his safe.

In closing, Roux urged the judge to consider Oscar's position: the ‘slow burn' of his disability over his lifetime, his startle response, his anxiety.