The Pistorius Appeal: Bring it on

Rhodes>Perspective>2014 Archive

Some sagas in our life, it seems, are just not meant to end. The divorce of NUMSA from Cosatu is one of them. Nkandla is another. And now, surprise, surprise, the Oscar Pistorius trial. After last week’s sentencing, the National Prosecuting Authority has decided to appeal both the verdict, and the sentence. Which means the Pistorius show will continue for at least another season. But it will be very different.

The media machine around Oscar Pistorius reached such a high pitch towards the end of his trial that almost anything that happened featuring the word “Oscar” seemed to flash around the globe faster than Wayne Duvenage going through an e-toll gantry. You would click on The Guardian website to see what was happening in Blighty, only to be confronted with “the latest from the High Court in Pretoria”. Even if “the latest” involved a suspicious nose-picking episode. So sometimes it’s difficult to sort out the noise from what really matters.

What really matters, of course, is that someone was convicted of culpable homicide for shooting a young woman four times, and killing her. But he was not convicted of murder; instead, of culpable homicide.

At the risk of being labelled another “angry white” by Jonny Steinberg,I believe this decision to appeal by the NPA is the right decision. In the court of law, and in the court of public opinion.

Let’s start with public opinion [Ja, Stephen, because - let’s just remind everyone - you are a journalist, and not a lawyer – Ed].

The fact is that Pistorius is white and rich. And he shot Reeva Steenkamp four times. In the mind of just about everybody who followed the case, it seems impossible to believe that he shot four times, and then was not found guilty of murder. Worse, it looks like he was able to get away with it because he is rich and white. At a time when Jub Jub and his mate were sent to jail for murder after going drag racing. The legal stuff isn’t the issue here; the perception is the issue. And it certainly looked for a time that when it comes to cases involving killing, every black man is a murderer, every white man a victim of his situation.

Then, of course, there is that perception that the killing of women is not punished harshly enough. It may not be true, but it is certainly how it looks. The ANC Women’s League had already said it was going to try to make submissions to the NPA to get them to appeal this ruling. Rightly so, the league was doing what it was created to do: protect women. And because of the hype around this, a strong, wrong message was being sent out.

And then there’s the law itself. Even before the NPA made this announcement, Wits law professor James Grant had spoken of howthe law was simply unclear. It’s about our two friends, Mr Dolus and Mr Eventualis. At some point, what is really meant by these two gentlemen needs to be cleared up, and now we have the opportunity to do it.

But of course, this does all mean that we have to live through another round of the Oscar Circus.

Well, it will be very different. Mainly because there is no witness testimony in the Supreme Court of Appeal (technically, it could be possible for this appeal to be heard by a full bench of the North Gauteng High Court i.e. three high court judges, but it is probably going to go directly to the SCA). This means there will be dry, oral argument. Lots of people (mainly men) in robes, uttering a lot more Latin than we’ve heard already. There will be no breaking down in the witness box, no cross-examination by Gerrie Nel, no putting it to you by Barry Roux.

Instead, there will be proper discussion about the law. With five judges (probably: it could be three, but with this profile, bank on five) asking questions of the lawyers. Only the law will matter - not the emotion, or the juvenilia of Mikey Shultz saying rude things to Aimee Pistorius.

There is another welcome aspect to this. The SCA is one of the examples of our legal system at its best, because the emotion is stripped away. Some of our biggest judicial personalities are there - people like the SCA Judge President Lex Mpati (all intellectual dignity), Judge Mahomed Navsa (aggressive erudition itself), or Judge Azhar Cachalia (who once memorably told Ngoako Ramatlhodi that it would be ridiculous to instruct the Springbok coach to ensure that he had an Indian person in the tight-five). The sight of these judges, or any of their colleagues, being broadcast around the world would be one of the best adverts we could produce for our country. It would be a completely different scenario to the theatrics of those countries still backward enough to use the jury system, where lawyers go for emotion, rather than the law.

And then to the question that all media people will ask immediately: will it be televised? Will the judges give permission? While it’s a little too early to give a definitive answer, it is probably going to be yes.

In 2006 the SCA allowed the SABC to broadcast the result of Schabir Shaik’s appeal live on its radio stations. You may wonder how I can remember it so clearly. I have a toe-curling story to tell you. I tried to do the same thing, but using slightly less equipment. I simply put my cell phone on speaker under the judge’s nose, and hoped like hell the people on the other end wouldn’t just put the phone line through to it until the judge started speaking. It didn’t work. Instead, as Judge Craig Howie began his ruling, a huge noise came out of my phone. It was Tim Modise’s voice. Howie did not see the funny side. He asked who it belonged to, I put my hand up (this is in the Supreme Court of Appeal, as they’re giving judgment in what was then the most important political trial since 1994). I thought I was going to jail. In the end he adjourned the court, and I jumped over a rail, grabbed the phone, and ran like hell.

I still shiver just thinking about it.

Anyway, I digress. The reason that the SCA granted the SABC permission to broadcast their ruling live was that Judge Hilary Squires had allowed his ruling in the same case to be carried live in the Durban High Court. In 2009 Judge Chris Nicolson allowed the same to happen in his judgment that led to the recall of Thabo Mbeki. Again, when the SCA handed down its verdict, it allowed a live broadcast.

Here, the situation is slightly different. For the first time, we had witness testimony being broadcast live in the High Court itself. If the SCA follows its own precedent, it’s probably going to allow its own hearing to be carried live. But of course, it is the SCA; it could just decide not to. It may be worth Carte Blanche’s while to make sure all the judges concerned have a hearty breakfast on the morning of the first court day.

That Pistorius has captured the world’s attention goes without saying. Part of the reason for that is that the verdict and the sentence have been questioned so widely. That will continue, until the appeal is heard. An appeal is the only way to put this all to bed.

Article by :  Stephen Grootes.

Article source : Daily Maverick.