One Tragic Night (99 page)

The first significant issue tackled was Oscar's claim in his plea explanation that the defence would show the tampering and contamination of the crime scene. He had promised under oath that witnesses would be called to back up this allegation, but that did not happen. Masipa found that three issues arose around this topic: was the scene tampered with, how long was a missing extension cord and were the police pictures authentic?

‘This court is of the view that these issues have paled into insignificance when one has regard to the rest of the evidence,' she said. For Masipa, all the talk of tampering and contamination had come to naught and was of no consequence. She cleared that issue off the table and moved on quickly, much faster than expected.

Immediately, Masipa began to address the state's main case of premeditated murder. Speculation in legal circles ahead of the judgment had been that the prosecution had probably not done enough to actually prove this charge, despite dedicating a large portion of its case to it.

The state contended that there had been an argument in the early hours of Valentine's Day, that in a fit of rage Oscar had armed himself and chased a fleeing Reeva into the bathroom before intentionally shooting and killing her through the closed toilet door. To attempt to prove this, the state had relied heavily on the testimony of neighbours Estelle van der Merwe, Michelle Burger and her
husband Charl Johnson, as well as Johan and Annette Stipp. It had also pointed to the evidence of pathologist Gert Saayman on Reeva's stomach contents as evidence that she was awake and eating in the hours before she was killed. In addition, the state used WhatsApp messages exchanged between Oscar and Reeva to illustrate rocky moments in the relationship and to suggest that the two of them could have had an argument.

To counter, the defence carefully crafted a timeline of events constructed around objective facts, most notably the phone records. It had pointed to this timeline as evidence that the state's version of what had happened simply could not be true. Crucially, the defence differed from the prosecution on the sequence of events and on the contentious dispute about the two sets of noises.

How would Masipa deal with the state's lack of explanation around the first set of noises? In setting out her ruling, the judge said, ‘[The] nub of what is in issue can be divided into three neat categories: gunshots, sounds made by a cricket bat striking against a door and screams in the early hours of the morning.'

Masipa established that it was clear that there was a misinterpretation of some of the sounds. Some witnesses had heard more than four shots; some neighbours might have missed some of the sounds because they had been asleep or because their attention was focused elsewhere, for example, if they were on the phone at the time. It could also have been because they were in a sleepy haze or simply too far away from the scene.

Cutting straight to the chase, Masipa rejected the evidence of two of the most crucial state ‘earwitnesses': Burger and Johnson. The couple, who live in the neighbouring Silver Stream estate, came forward after the bail application, claiming to have heard the blood-curdling screams of a woman before the shots. ‘The evidence of this witness, as well as that of her husband Mr Johnson who sought to corroborate her evidence, was correctly criticised in my view as unreliable,' found Masipa.

However, she did not think Johnson and Burger had lied about what they had heard: ‘I do not think that Mr Johnson and Ms Burger were dishonest. They did not know the accused or the deceased so they had no interest in the matter. They also did not derive any pleasure in giving evidence.'

Masipa warned that the court approached the evidence of these witnesses with necessary caution. ‘It is easy to see why the witnesses would be mistaken about the events of that morning. The distance from which Burger and Johnson heard the noises put them at a distinct disadvantage.'

At issue was the identification of voices and whether or not the witnesses had truly heard a woman screaming that morning. Masipa made the point that
none of the witnesses had ever heard Oscar cry or scream when he was anxious, and thus had no model against which to compare what they had heard. Even ex-girlfriend Samantha Taylor conceded under cross-examination that she had never heard Oscar scream under life-threatening circumstances. Masipa also relied on the evidence of defence acoustics expert Ivan Lin to show that, from a distance, the neighbours would not have been able to differentiate conclusively between the screaming of a man and of a woman.

The judge sought to establish whether it was possible that it could have been Reeva screaming between the shots being fired, and for this she relied on the evidence of Professor Gert Saayman. As she read from the postmortem report, Oscar quietly sobbed and Barry Steenkamp, who had not been in court for Saayman's testimony, leaned forward on the bench, resting on his arm. June bent over to check on him as the more graphic details were touched on.

Crucially, Masipa found that the shots had been fired in quick succession. ‘In my view, this means that the deceased would have been unable to shout or scream. At least not in the manner described by those witnesses who were adamant that they had heard a woman scream repeatedly. The only other person that could have screamed is the accused. The question is, why did he scream?' Masipa asked rhetorically. Oscar's version was that he screamed when he realised Reeva was not in the bedroom, and the judge found that that claim had not been contradicted.

She again questioned the reliability of neighbours' testimonies and explained why most witnesses ‘got their facts wrong'. She echoed what had been said by many commentators critical of the live broadcast of the trial, an unprecedented event in South African judicial history.

Some witnesses had conceded that they knew what happened in court before taking the stand. ‘I am of the view that the probability is that some witnesses failed to separate what they knew personally from what they had heard from other people or from what they had gathered from the media,' said Masipa.

Roux had paid special attention to discrediting the evidence of Dr Stipp and his recollection of times, contending that Stipp had moulded his evidence to suit the state's case. But Masipa disagreed, commenting: ‘Dr Stipp had no interest in the matter and therefore would have no reason to tailor his evidence to assist the state. I do not believe that he coloured his evidence against the accused. On the contrary, he showed no bias.' What she did concede, though, was that Stipp could, of course, have been mistaken in elements of his testimony.

She spoke of the ‘difficult terrain that the court had to traverse to reach a conclusion', explaining why ultimately she chose not to rely on any of the subjective testimony of any of the neighbours who came to testify. ‘It would be unwise to
rely on any evidence by the witnesses … who gave evidence on what they heard that morning without testing each version against objective evidence. Human beings are fallible and they depend on memory, which fades over time.'

Instead, as the defence had suggested in its closing argument, she chose to look solely at the objective evidence available, most specifically the phone records, to confirm the sequence of events on Valentine's morning.

Masipa's focus shifted to the pivotal timeline of events. The defence had spent considerable time building this timeline during the trial and Roux had formulated his closing argument around it. He had also been critical of Gerrie Nel's failure to explain the sequence of events properly. Masipa, too, took issue with this. ‘There was no address from the state to disturb the timelines set out hereunder,' she pointed out.

She then set out her own chronology of events based on objective facts and it read remarkably like the one presented by Roux in closing argument. Crucially, she confirmed that she agreed with the sequence as set out by the defence: the first set of noises was the gunshots and the second was the cricket bat striking the door. This fundamentally contradicted the prosecution's claim that the second set of noises was the shots that had followed Reeva's screams.

‘An analysis of the evidence, using the timelines as a basis, will also assist this court to determine whether the state has proved beyond reasonable doubt that the accused had direct intention and premeditation to kill the deceased.'

Masipa was deconstructing the state's premeditation case. She had showed her hand incredibly early on. Then, just as she had hit her straps, she called for a brief adjournment.

During the break Oscar leaned forward and wiped his eyes, rubbing them with the tips of his fingers as attorney Brian Webber had a word with him. Journalists took the opportunity to tweet some atmosphere and analysis.

Aislinn Laing, the southern African correspondent for the
Telegraph
titles, tweeted:

The BBC's Andrew Harding gave perspective on Masipa's ruling so far:

It was evident Masipa did not buy the argument that the screams the neighbours had heard were those of a woman. Rather, she found they were those of Oscar in the moments after firing his gun. The defence had done enough to cast doubt over the state's version of events.

On her return to her seat, Masipa picked up precisely where she had left off. She reiterated that she agreed with the defence's timeline and set out why.

She took issue with the fact that while Van der Merwe had said she had heard a woman crying, her husband had told her that it was Oscar. ‘This piece of evidence is enough to throw some doubt on the evidence of the witnesses who were adamant that they heard a woman screaming,' commented Masipa. She found that the Nhlengethwas' version – that the crying occurred shortly after the first sounds – ‘has a ring of truth to it' when set against the timeline of the phone calls. Lending credence to this was the evidence of Burger and Johnson, who had said that the screaming occurred between 3:12 and 3:17. Masipa also reached the conclusion that Annette Stipp's times seemed to have been wrong. She seemed to place little weight on the evidence of Rika Motshuane as she had ‘guessed' at her times and, although being an immediate neighbour, had not heard the first set of sounds.

Having dealt with the screams and the gunshots, Masipa then kicked out the next leg of the prosecution's theory that an argument between Reeva and Oscar had led to the shooting.

In support of this theory, the state had pointed to, amongst other things, that Reeva had taken her phone with her into the bathroom and had locked herself in the toilet cubicle.

‘In my view there could be a number of reasons why the accused felt the need to take her cellphone with her to the toilet. One of the possible reasons is that the deceased needed to use her cellphone for lighting purposes, as the light in the toilet was not working. To try and pick just one reason would be to delve into the realm of speculation.'

The state had also led evidence of WhatsApp messages to try to show that the relationship was ‘on the rocks' and that the ‘accused had a good reason to want to kill the deceased'. In response, the defence had placed messages on the record that showed the relationship was a loving one. Masipa had already indicated during the trial that she might not be convinced by the messages and confirmed this position in her verdict.

‘In my view none of this evidence from the state or from the defence proves anything. Normal relationships are dynamic and unpredictable most of the times while human beings are fickle. Neither the evidence of a loving relationship, nor of
a relationship turned sour can assist this court to determine whether the accused had the requisite intention to kill the deceased,' found the judge. ‘For that reason this court refrains from making inferences one way or another in this regard.'

With her dismissal of the WhatsApp messages, the inference could be drawn that even if the prosecution had been aware of Oscar's phone call to his former girlfriend Jenna Edkins on the evening before the shooting and sought to argue that it might show some discord in his relationship with Reeva, it may have been seen by the judge as inconsequential to the case.

The state had relied on pathologist Gert Saayman's testimony to suggest that Reeva had eaten at least two hours before the shooting, as the stomach contents could have buttressed the theory that she was awake and arguing with Oscar. This was tied in with the evidence of neighbour Estelle van der Merwe to try to prove the state's claim.

Masipa found that the court could not rely on the premise of gastric emptying because it was not an ‘exact science' and evidence before the court remained inconclusive. ‘However, even if this court was to accept that the deceased had something to eat shortly before she was killed, it would not assist the state as the inference sought to be drawn from this fact is not the only reasonable inference. She might have left the bedroom while the accused was asleep to get something to eat,' Masipa found.

She also said that what complicated the situation further was that ‘it's not clear when and if the alarm was activated that evening or that morning'. In addition, she stated: ‘There is nothing in the evidence of Mrs Van der Merwe that links what sounded like an argument to her to the incident at the house of the accused.' Instead, Masipa placed weight on the fact that security guard Pieter Baba had patrolled past Oscar's house before the shooting at 2:20am and had found nothing untoward.

It was becoming clear that the judge was not buying the state's version that an argument had led to a premeditated shooting. After having heard weeks of detailed testimony from neighbours and forensic experts, in a few minutes she had dismissed the screams, the timeline, the stomach contents, the WhatsApp messages and any suggestion that there had been fighting.