South Africa has suddenly developed a nation of criminal justice experts – each one harboring their own opinions as to why, why, who and when. Bottom line is, everyone is entitled to their opinions, and others are at liberty to agree or disagree. Unlike what I have seen this past week, Eskom permitting, when one’s own opinions or speculations are force-fed to others.
One always tries to maintain a private persona in a very public one. But if survivors do not talk out, how is awareness of very real problems facing our country going to be exposed, and ultimately brought under control?
As the hype and media frenzy around the Oscar Pistorius trial escalated, I watched, despite myself, in frustrated agony as Barry Roux tried to confuse and intimidate witnesses with a play on words, exact times, duration of a “moment” etc, and how his client screams like a woman – yes, it’s true.
I have worked with the records of proceedings in criminal cases in High Court and lower Courts for many years, as our Criminal Justice System has evolved, from everything from petty theft, government corruption, white collar crime, to gang-rape, to child abuse, to premeditated murder, to rape, to armed robbery, to cash-in-transit heists. I have worked in cases of police brutality, and torture. I have also worked in cases where mob justice has been executed, and it has always been curious to me how a defense counsel will try and justify his client’s actions, in the face of overwhelming and damning evidence.
Let me briefly explain why.
My former (late) husband often was extremely physically abusive. I am going to name a few instances, which reflect the extremes he went to.
On one occasion he took to pummeling me in front of our two daughters, who were very young at that stage. At the sight of blood and/or bruising, as was often the case he would stop abruptly, hold his head in his hands and start apologizing profusely. On this particular occasion, after I had regained composure as best I could, and picked myself off the floor, I walked over to where he was sobbing and punched him in the face, gashing him with the ring I had on my finger. He was horrified “How could I do this to him?” I never answered, but went to tend to cleaning up the blood dripping down my face.
Another occasion saw him threatening to throw me off of a very high bridge, after having locked me in a room for 3 days.
I have been the recipient of a very good looking 9mm Glock firearm, which was one of my own 4 firearms, being shoved into my mouth with the threat of having my head blown off – in front of my children. Although a competent shot, I no longer have firearms.
I still bear the scar where he held a knife to my hand and instead of stabbing, dug it into my flesh until it drew blood. I was completely unemotional at the time, he saw the blank expression on my face and again, abruptly stopped what he was doing and started sobbing, apologizing profusely.
I left this man eventually, amidst protection orders which were ignored, and being dragged in and out of High Court for the best part of three years. He was the wounded party. He never could say why, after the medical reports for over the years were produced. I took my children away from our very (outwardly) comfortable environment to start a new life – which became a living hell almost until the day he died. I stop there.
Now I have a dilemma. Does it mean you had no intention to do what you had done if you cry and sob immediately thereafter? Does it mean that you are an innocent when you commit acts of this nature if you say “I am sorry”?
South Africa is on trial here, not just the accused person. Every one of the State witnesses is on trial, to be publicly ridiculed by defense counsel, whose sarcasm, repetition, and grasping at straws, I doubt has gone unnoticed by the learned Judge. One understands cross-examination will be tedious, aggressive, and counsel will grasp at every word, gesture, movement to try and obtain an edge. One doesn’t expect counsel to come across as quite so desperate.
What the rest of the world sees is a total court time of around 3 hours a day, exorbitant fees for both State and defense; a country practically shut down because of an electricity crisis from our embattled Eskom; a 17-20 year old child who apparently is permitted to gallivant around the world with adult men, who clearly has absolutely no idea of the repercussions of her testimony; a defense counsel who elicits a sigh which reverberates through international social media each time he desperately tries to nit-pick at something – anything! And an accused person who is clearly putting on a traumatized appearance (in court in any event), indicating a certain level of remorse.
Does remorse = unintentional? I look back on my life, and relive the terrifying moments we experienced, never knowing if a whim would take this man that was “our protector” from husband and father to monster in a few seconds – or “moments”. How long is a moment, Mr Roux? Well I will tell you. A moment can seem like a lifetime, a moment can seem like hours. There is no measurement of “moment” in a situation where you are terrified, fearful, desperate and anxious. Moments can last a lifetime.
We are now blessed with a wonderful husband and father in our lives, Craig, and have an extremely happy home, a far cry from the sophisticated, wealthy, pretentious and often ostentatious life that I experienced almost two decades ago.
“Justice must be done and seen to be done” is something said often and credited to an English judge 90 years ago. It is common knowledge that amongst having one of the highest crime rates in the world, we are also known as the rape capital of the world, and one of those countries with the most corrupt government ever. Hardly surprising, our president has a grade 5 education – what can he possibly know about running a once-wealthy country?
I do wonder, however, why Pistorius’ case has been the elected one to be televised to the world. We have thousands of heinous crimes committed on a daily basis in this country, and what of those accused who have no choice as to who will defend them? President’s Zuma’s son has recently himself allegedly been indicted for culpable homicide.
Why does a State provided defense counsel not have access to unlimited resources to prove the innocence of an accused? I should rephrase. “To disprove the guilt of the accused”, as the onus is on the State to prove guilt, not on the accused person to prove innocence.
What happens when Pistorius’ funds run low, and Roux is still harping on about “was it ‘okay’ or was it ‘fine’?” Is that even material? What happens when, as can be seen daily, the interest surrounding this case dies down completely? It is not about the theatrics and waving arms in air as if conducting an orchestra. It is not about trying to pick on synonyms to try and discredit a witness.
A man is on trial for his life, and even though each of us venture an opinion based on what we have been allowed to hear, he is guilty of something – he has got to be found guilty, logic dictates! Of what is up to the learned judge to determine. I don’t think Barry Roux’s semantics are having the desired effect. And I don’t think people realize just how thorough Gerrie Nel, who was responsible for leading the case against convicted former Police Commissioner Jackie Selebi, is. You can view his profile on Who’s Who SA.
Barry Roux on the other hand is a silk of the JHB Bar, who was involved in the Kebble case.
I have obtained legal definitions of some competent charges:
Manslaughter is a distinct crime and is not considered a lesser degree of murder. … It is sometimes described as a heat of passion killing. In most cases, the provocation must induce rage or anger in the defendant,
Homicide is: The killing of one person by another; A person who kills another person.
Culpable Homicide is “killing negligently”.
Culpable homicide, like murder, is a form of unlawful killing. The crucial difference, however, is that if a person kills intentionally it is murder, whereas if he or she kills negligently it is culpable homicide.
Previously, South African case law took the view that a person who kills intentionally, but in mitigating circumstances, is guilty of culpable homicide rather than murder. For example, where a man uses excessive force to defend himself from attack and kills his assailant, this would be culpable homicide. However, later decisions by the Appellate Division strongly support the trend towards excluding a verdict of culpable homicide where intent to kill is proved.
The essential element of the crime is negligence, but before any court can make a finding of culpable homicide it must be proved by the prosecution that a reasonable man’ in the position of the accused would have foreseen that death could result from his actions.
The test for negligence is an objective one, as opposed to the test for intention in murder, which is subjective. For example, if it is shown that a man ought to have foreseen the possibility of killing someone when he fired a gun, negligence is present and he is guilty of culpable homicide. If it is shown that he must have foreseen the possibility of death resulting from his actions or that he intended to kill, intention is proved and he is guilty of murder.
The question of whether he ought to have foreseen the possible consequences of his actions is decided by reference to the ‘reasonable man’ the diligens paterfamilias or average prudent family man. The behavior of the man accused of causing the death is objectively tested against what a reasonable man’ would do in the same circumstances.
While murder is the unlawful killing of one human by another, especially with premeditated malice.
Iol spells out the difference between murder and culpable homicide in relatively simple language.
Fault is an element of every crime. It takes the form of either intention (dolus) or negligence (culpa). Generally speaking, all common law crimes require intention, except culpable homicide.
Murder is the intentional, unlawful killing of another human being. Murder therefore requires that the accused acted with the intention to kill…
The concept of intention in our law has gradually been extended to cover not just deliberate, but also foreseen conduct. Dolus eventualis or “legal intention” exists where the accused does not “mean” for the unlawful act to happen, but foresees the possibility that it could happen, and proceeds with his conduct anyway.
The concept is easily demonstrated: If A sets fire to a building, foreseeing the possibility that someone might be in that building, and someone in the building is burned to death, then the law recognizes that A intended the death of that person, by foreseeing the possibility of death (however remote) and acting regardless.
…to prove that the accused acted with dolus eventualis, the prosecution will need to prove that the (accused) had foresight of the possibility that someone might be killed…
In our law, the question of foresight is a purely subjective one and requires that the accused must have foreseen the possibility himself.
The court must therefore place itself in the accused’s position when he committed the act, and determine whether he foresaw the possibility of death at that time…
Importantly, the accused does not have to foresee the result as a probable outcome of his conduct, but he must at least see the outcome as a possibility…
If Pistorius walks free on this case, or even if he gets convicted of a lesser charge, because he is showing what he deems to be adequate amounts of “remorse”, is that sufficient to discount the fact that he appears to have terrorized Reeva Steenkamp, before brutally gunning her down? Clearly his intention was to shoot whomever it was he would have the Court believe.
Reeva Steenkamp, Tribute, Image Credit to CTV News
“Justice must be done and seen to be done”