The aftermath of the Pistorius case - English

What the law can’t fix

By Juliane Mendelsohn23.10.2014Culture and Society

The verdict in the Pistorius case is disappointing and irrational to many. But in the eyes of law, it is necessary to accept that there are moments of human behaviour that are beyond any form of rationality and irreconcilable with someone’s standard character.

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Kim Ludbrook/ - Pool/EPA/Gallo Image/Getty Images

Oscar Pistorius has been on trial since March 2013 for accidentally or incidentally placing a total of four deadly bullets from his silver 9mm pistol in his beloved girlfriend, Reeva Steenkamp, in a moment of psychotic rage or anxiety on the morning of Valentine’s Day in 2012.

Steenkamp and Pistorius have since become symbols for everything that is wrong and right with South African culture and society. In an act of solidarity that reaches beyond racial divisions, June Steenkamp, Reeva’s mother, received financial support from the ANC’s (the ruling party) women’s league in order for her to attend the trial. They too had an interest in illuminating a culture of fear, firearms, and male dominance that led to a total of 66,387 sexual offenses, 16,363 attempted murders, and 185,893 cases of domestic violence in 2013 alone. Since March 2013, the Steenkamps, all South Africans, all women, and people around the world have been waiting for the High Court of Pretoria and Judge Thokozile Masipa to speak justice and to some extent restore all that has been broken. After 20 months we have a verdict and a sentence: culpable homicide, five years in prison. This conclusion is reasonable and rational but disappointing. It doesn’t feel like justice and as life continues, we are only left with a puzzled sense of all the things the law cannot fix.

Weapon possession is a genuinely bad idea

The first set of hearings focused on Oscar Pistorius. Since he was the only living witness and because _in dubio pro reo_ causes all events to fall in his favor, the trial focused almost entirely on his version of the events. To many it is entirely unconvincing and he is simply a gun-loving, psychotic monster whose temper ends in blood baths and self-reflection in tears and vomit. But Judge Masipa couldn’t draw this conclusion. She took guidance from the principle of _dolus eventualis_ and the case S v Bradshaw (1977), in which Judge Wessels had advised that:

bq. “the court should guard against proceeding too readily from ‘ought to have foreseen’ to ‘must have foreseen’ […] The several thought processes attributed to an accused must be established beyond reasonable doubt, having due regard to the particular circumstances which attended the conduct being enquired into.”

In the eyes of law it is necessary to accept that there are moments of human behavior that are beyond any form of rationality and irreconcilable with someone’s standard character. It is not uncommon for people to “snap” and for people living in violent societies to have entirely irrational fears of crime and lapses into anxiety. This is not premeditated murder, and since no psychologist or judge in the world can predict when and whether you will snap again, you cannot in all instances be considered a rampant madman and a threat to society. It is only clear that your negligent actions are worthy of severe punishment and that weapon possession is a genuinely bad idea.

The second set of hearings was conducted to establish the appropriate sentence. Here the focus shifted from Pistorius to the victim, her family, and society at large. Reeva Steenkamp’s cousin Kim Martin took the stand. She told the court she should actually be at home with her children, who are equally traumatized by the events and are writing their final exams. But Ms. Martin went to the High Court of Pretoria to be the voice of Reeva, a task that is still too unbearable for her parents to fulfill. _“I know Reeva needs a voice. It’s my way of being able to pay her back for what she went through.”_

Punishment won’t bring her back

Time seemed to stand still as memories of Reeva filled the courtroom and thousands of people’s Twitter feeds. Martin told the court that Reeva was the first child she had ever held in her arms. Apart from her flawless beauty, we learned that Reeva was kind, driven by a willingness to succeed, and consumed by worries about her family’s finances. To Reeva, _“family was unbelievably important. She would instigate family gatherings. Excuses to get everyone together.”_ We were given insight into Reeva’s former relationships: _“the separation from Warren was like a divorce”_ and her love for animals: _“I think I’m being punished for being selfish… My life is out of control,”_ Reeva is quoted as having said after her cat ran away. As the tweets rolled on and I looked up her pictures and last interviews, it all became a bit unbearable, and only one fact was undeniably clear: no amount of detail and no form of punishment or retribution would bring back Reeva Steenkamp.

But Martin continued, this time turning to Reeva’s family: _“My uncle sat in the corner, crying and crying. It’s terrible. It’s ruined our whole family. Reeva was everything to them.”_ But the Steenkamps had not come to the High Court of Pretoria to seek revenge and retribution. And despite their severe financial difficulties, the Steenkamps declined to accept a lump-sum settlement from Pistorius, which they considered _“blood money”_. Pistorius’ lawyer, Roux, said: _“He (Pistorius) wants to make good. He can never make good, but he wants to make good as far as possible.”_ Courts and many societies have moved away from the illusions of archaic forms of justice such as “revenge” or _“an eye for an eye”_ but in doing so also have very little to offer victims. Settlements or “blood money” often act as a means to fill this void. Monetary compensation has become a symbol and the currency of a form of justice we know cannot be served. In her final statement, Justice Masipa said she hoped that her sentence would bring _“some sort of closure to the family […] so they can move on with their lives”_, probably knowing full well this could not be achieved with a prison sentence or any other legal remedy.

In the last instance, the public prosecutor Gerrie Nel insisted that _“Kim Martin’s voice goes beyond the family. It must be seen as the voice of society.”_ And that the _“the interests of society demand a prison term.”_ Many South Africans wanted a long prison sentence, and equally as many would have voted for the reinstatement of the death penalty. But since the constitutive Truth and Reconciliation Commission at the end of apartheid in 1996, which saw thousands of criminals walk free in return for an attempt to heal society, South Africans have prided themselves with a mature engagement in alternative means of speaking justice.

An unhealthy culture

Because retribution is seen as a poor means of healing the wounds of a victim or a society, there is an appeal to justices to seek means of restorative justice. Unlike retribution, which causes the perpetrator great discomfort, and resocialization, which attempts to reintegrate and change him, restoration creates a space for the perpetrator to undo the damage he has caused. In an attempt to keep Pistorius out of prison and have him do community service instead, the defense appealed to this restorative tradition by bringing in the vague notion of _ubuntu_ and letting it dance around the courtroom a little in an undefined manner. Ubuntu can best be described as:

bq. “becom(ing) a moral person insofar as one honors communal relationships”. Put differently, “a human being lives a genuinely human way of life to the extent that she prizes identity and solidarity with other human beings”.

Ubuntu and restorative forms of justice are valuable and important in a society as deeply crime-ridden as the South African. Violence and crime are a reality that has caught up with every aspect of South African society, and at some point a lot of healing will need to be done. Mercy and community service are valuable ways to undo the damage done by minor, juvenile, or socioeconomically driven crimes. At the same time, severe crimes and the culture they create may not be banalized. The Minister of Women and Children, Lulu Xingwana, has been referenced saying that the incidence of a white Afrikaner male killing his partner was because of an ongoing culture that causes (white) males to think they own everything, including women and children. Whilst Masipa showed mercy, her ultimate ruling was firm: _“I am of the view that a non-custodial sentence would send a wrong message to the community. On the other hand, a long sentence would not be appropriate either, as it would lack the element of mercy”._

Since March 2013, we have been witness to the destruction of many people’s lives, and a huge mirror has been held over every aspect of South African life. The grief runs further than its rivers and deeper than its two oceans. In every case other than Pistorius’, justice still needs to be served and wounds must be attended to in the true spirit of ubuntu. RIP Reeva.

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