Pistorius trial: Week Five, Day Four
The 20th day of the Pistorius murder trial. REBECCA DAVIS is in Pretoria taking notes at the North Gauteng High Court, while the rest of the Daily Maverick's staff is jolling at the Lyric Theatre for the Gathering conference. The only voices we're hearing today are those of Oscar Pistorius and the state's Gerrie Nel, in their ongoing adversarial dance.
09.00 We're braced for the second day of Gerrie Nel's cross-examination of Oscar Pistorius, though it already feels like we've been hearing it for a lot longer. Part of the buzz in the courtroom this morning is due to an exclusive interview given by Reeva Steenkamp's mother June to British tabloid The Mirror, in which she labelled Pistorius the Devil, said she was unmoved by his apology on the stand, and added that she couldn't tell if he was acting in court.
June Steenkamp also said that she thought it was important that she kept attending court, and sitting front and centre, so that Pistorius could see her eyes boring into him.
Pistorius has problems of his own beyond June Steenkamp's steely gaze. Among them, lawyers seem agreed that he is simply talking too much on the stand, delivering long and rambling answers where he should be restricting himself to short, concise responses. Let's see if he can control things better today.
11.00 Tea time at the Pistorius trial, and apologies that we're slightly delayed today due to technical difficulties.
A Pretoria newspaper ran the headline "Death Nel for Oscar?" this morning, a somewhat hyperbolic reference to Nel's aggressive cross-examination style. Nel hasn't hauled out any photos for Pistorius to face so far today, but he hasn't been sparing any punches either.
One of his first volleys was about the public apology Pistorius made to the Steenkamps on his first day on the stand. How did Pistorius think the Steenkamps would feel about such a public apology? Nel asked. Why not apologise in private? "Weren't you humble enough?"
A quavering Pistorius replied that his legal counsel had been in contact with Steenkamp's legal representatives, who had indicated that the family was not ready to see him. Pistorius said he understood this. "I would love to have the opportunity to meet Reeva's parents," he said tremulously. "I'm sure they wouldn't want to."
But Nel had a different suggestion to make: that Pistorius did not want to meet the family in private because then he would have to take responsibility for what he had done. It has now become clear what Nel's approach is: to paint Pistorius as a narcissist who shirks responsibility for his actions - be it the Vaal sunroof shooting, the Tasha's gun discharge, or the killing of Steenkamp herself.
This was very much the line of questioning he pursued when we turned, once again, to the WhatsApps swapped between Steenkamp and Pistorius, which have now been pored over with the kind of attention normally devoted to holy scrolls.
Nel pointed out that in the entire WhatsApp anthology, the words "I love you" do not feature from Oscar to Reeva. He brought up, again, the lengthy WhatsApp sent by Steenkamp to Pistorius after they fought at friend Darren Fresco's engagement party, in which she expressed disappointment at Pistorius's behaviour.
Pistorius disputed that the words "You have picked on me incessantly", from Steenkamp, were accurate. "I treated her well," he said. He admitted believing that she was flirting with another man at the engagement party, and said maybe he was jealous or insecure. Other aspects of the message he felt might be an exaggeration. "I'm not saying she's lying in everything she says here," he said.
Nel honed in on the aspect of the messages where Steenkamp said she was scared of Pistorius sometimes.
"Why would she be scared of you?" Nel asked.
"She was scared of the feelings she had for me," Pistorius answered - a fairly breathtaking reading of the context.
Nel pointed out that ex-girlfriend Sam Taylor had said that Pistorius used to shout at her. Pistorius replied that "many" aspects of Taylor's evidence were lies. Nel asked why, in that case, Pistorius hadn't instructed Roux to challenge her on this, by sending him a note while Taylor was on the stand. Pistorius said that he couldn't remember if he had told Roux or not.
Pistorius's memory was failing him at numerous points during the morning's testimony.
Nel also grilled Pistorius as to what Steenkamp raised in her WhatsApp about Pistorius telling her off for using "accents" and chewing gum. Steenkamp had been preparing for a role, Pistorius explained, and had been practising a certain accent. The day before the message, they had been having a "serious conversation" about his new house and she had been talking in the accent. He asked her not to.
As for the gum, "I never told her to stop chewing gum," Pistorius said. But then promptly told the story of how they had been entering an event with lots of photographers, and he had told Steenkamp: "Angel, don't chew gum", because it didn't look good on camera.
Nel mentioned a song which Pistorius put on in his car after they had fought at the engagement party, the playing of which had made Steenkamp unhappy. Pistorius said he couldn't remember the song in question. Nel suggested that it was Kendrick Lamar's "Bitch Don't Kill My Vibe", based both on Pistorius's reference in a WhatsApp message to the playing of a Kendrick Lamar song, and Steenkamp's later comment that "I'm not some bitch trying to kill your vibe". Pistorius said he could not recall the specific song.
Lyrics to "Bitch Don't Kill My Vibe": "I am a sinner/ Who's probably gonna sin again/ Lord forgive me/ Sometimes I need to be alone/ Bitch don't kill my vibe".
We moved on to the Tasha's shooting incident, for which Pistorius faces a charge of recklessly discharging his firerarm to which he has pleaded not guilty.
Here Pistorius insisted that he had not fired the gun, that he had not touched the trigger, that the gun was 'in his possession' when it went off but that he essentially had nothing to do with it.
"Who discharged the gun?" Nel asked, later referring to its "miraculous" discharge.
"The gun discharged," Pistorius replied.
Pistorius also repeated his assertion that he had told Tasha's owner Loupis that the incident was entirely his fault. Nel told him that nobody present - Lerena, Fresco, or the Loupises - remembered this.
13.00 Nel wanted to pursue an issue we haven't heard a great deal of thus far: the charge against Pistorius for illegally possessing ammunition. Pistorius testified that the .38 ammunition found in his safe belonged to his father, and Pistorius had permitted him to store it there after his father asked permission.
Nel put it to Pistorius that he would have covered the issue of ammunition in his firearms competency training with Sean Rens, and would have known that it was illegal for him to keep it on behalf of anyone else. Pistorius said it was his "understanding" that it was not illegal for him to store his father's ammunition in his safe, and suggested that Barry Roux had led him to believe as much, if not explicitly. Nel scoffed at this.
We were given further insight into the clearly very strained relationship between Pistorius père and fils when Nel asked Pistorius if he was aware that his father had refused to sign a statement confirming that the ammunition was his. Pistorius said that he and his father had not been in communication for "many years" - begging the question, as Nel asked, why he would let him store his ammunition there in that case.
As we've said before, Pistorius (or his legal team)'s insistence on pleading not guilty to his three auxiliary charges seems an increasingly inexplicable decision, given the evidence contradicting his denials. If nothing else, pleading guilty to these relatively minor charges might at least have sent the message to the court that the athlete was "taking responsibility" - the aspect Nel places so much importance on.
Nel moved on to the alleged sunroof shooting incident on the way back from the Vaal River in 2012. Pistorius said he could not remember much about the day. They were in a group of about ten, he said, and they went on a boat.
Did he take his gun on the boat? Pistorius confirmed that he did. When he swam, he said, he left the gun "one up" - with a bullet in the chamber - wrapped in a towel on the boat. Before he was swimming, he wore the gun in a holster slung around his shorts.
Why, asked Nel, would he wear his gun in a relaxed get-together with his friends? He carried his gun everywhere, Pistorius replied.
(After this little session of testimony, a number of foreign correspondents asked whether it was routine for South Africans to bring guns to braais, picnics, or boating excursions with their friends. Brand South Africa must be cursing Oscar more with every passing day.)
Pistorius reiterated his flat denial of having shot out of the roof of Darren Fresco's car after the car was pulled over twice for traffic violations. In Pistorius's version, this simply did not happen. In that case, Nel said, Darren Fresco and Samantha Taylor - who both testified to the incident - must have fabricated it together. Pistorius indicated that he wouldn't rule this possibility out. He said that he had heard from people that the two had had communication since then. Nel asked him who had told him this. Pistorius couldn't remember.
Nel then returned to shooting of Reeva Steenkamp, and the fact that Pistorius's defence initially claimed that their client had fired "double tap" (two pairs of shots quickly after each other) and have subsequently indicated that this is not, in fact, their version. Nel wanted to know why Barry Roux would have said to state ballistics expert Chris Mangena that Pistorius fired double tap, saying Roux would not have done so if this hadn't, at some point at least, been Pistorius's version.
Pistorius said that during a break he had informed Roux that he hadn't shot double tap, because during training he had learnt what double tap firing was. Nel asked if he remembered firing four shots. Pistorius said he remembered firing at the door, remembered pulling the trigger and rounds going into the door, but only learnt afterwards that four shots had been fired.
Pistorius continued to make his slightly confusing case that he did not fire "deliberately", that he didn't have time to think, but that he did hear a noise coming from inside the toilet and fired to protect himself. "At the intruder?" asked Nel. "At the door," responded Pistorius, but then clarified this to that he shot at what he thought was an intruder. "So it wasn't accidental?" asked Nel. It's not easy to get a handle on what Pistorius actually means here, except that he is clearly desperate to avoid the legal risk of admitting any kind of conscious intention behind his shooting.
15.00. In the post-lunch session, it was time for Gerrie Nel to drill down into the details of the evening before Steenkamp's death again. Pistorius testified again that he arrived home just after 6pm, that he chatted to Steenkamp, went upstairs, and came down again for dinner at around 7pm.
The dinner, which Steenkamp had prepared, consisted of chicken stirfry with vegetables, Pistorius testified. He said that neither of the two had had anything further to eat, and that he did not think it would have been possible for Steenkamp to go downstairs to have something to eat later without his knowledge.
This is significant because of state pathologist Gert Saayman's testimony that Steenkamp's last meal was eaten around two hours before her death, at around 1am. Saayman said the content of that meal looked to be vegetables and some cheese - no mention of chicken.
After dinner, Pistorius surfed the web on his iPad, texted his cousin and spoke to him on the phone. Steenkamp was doing stretches and yoga exercises on the carpet. Steenkamp brushed her teeth and then called to Pistorius to brush his teeth too (a rather curious detail, if you ask me, but one that hasn't been taken up by Nel.) Pistorius did so, and returned to the bedroom, where Steenkamp was lying on the bed looking at her phone with the TV on.
Pistorius climbed into bed on the left hand side. After a period, during which Steenkamp was showing him pictures on his phone, he told Steenkamp he was falling asleep. He asked her if she was tired, and she replied in the negative. He asked her to bring in the fans from the balcony and close the balcony door before she fell asleep. She agreed to do so.
Steenkamp clearly did not do so, however, because when Pistorius woke up in the early hours of 14th February, the fans were still out and the door was open. A noise did not wake him, he said; it was just a very hot and humid night.
Pistorius testified that he sat up in bed and rubbed his face - quite an astonishingly detailed recollection given the poorness of his memory elsewhere. Reeva asked him if he could sleep. He said no. They did not discuss her not bringing in the fans as asked. He walked to collect the fans, lock the balcony door and close the curtains.
"When you woke up, did you see Reeva?" Nel asked.
Pistorius replied that he did not - because he was rubbing his face with his hands. Aha.
In Pistorius's version, Steenkamp said nothing further, and he never saw or sensed her get up and go to the bathroom, despite the fact - as Nel pointed out - that she would have been a maximum of two metres from him. Pistorius explained this in terms of the fact that his back would have been facing her as he fetched the fans, and that it was pitch black.
Nel pointed out that despite the fact that it was pitch black, Pistorius could see enough to pick a pair of jeans off the floor. Pistorius said that they were illuminated by the amplifier light.
Nel then showed Pistorius one of the photos of the bedroom taken by police photographer van Staden. There are three elements in the photo which contradict Pistorius's version. Firstly, the bed's duvet is on the floor. Secondly, the fan is standing in the way of the door, which would have made it difficult for Pistorius to run out on to the balcony to cry for help as he claimed. Thirdly, the curtains are a fair distance apart, which would have spilled light on to the scene.
It is Pistorius's claim in all three cases that policemen on the scene moved the relevant elements.
He testified, for instance, that the duvet was definitely on the bed when he left it, and Reeva was under it. "So you saw that?" Nel said immediately. Reeva had the duvet over the bottom part of her legs, Pistorius testified. Nel again pressed how he knew this - if, as he claimed, he had not seen Reeva in the bed at all. Pistorius said that he pushed the duvet over when he got out of bed - even though he had just testified that he was sleeping on top of the duvet - and saw it "go up" over her legs.
Nel's version, which he put to Pistorius, is that Pistorius is lying about having run to the doors, flung them open and screamed for help from the balcony after discovering Steenkamp's death. Nel says instead that the fan, duvet and curtains were never moved, and that the balcony door was open when Pistorius and Steenkamp were having an argument. Then, Nel said, Steenkamp ran screaming into the bathroom.
Nel also asked Pistorius to point out where Pistorius claims the fan was before having been moved by a policeman. When Pistorius pointed out the position, Nel said that the photo proved that, given the position of the relevant plug, the fan would not have stayed plugged in at that distance. Pistorius responded that the multiplug, too, could have moved.
The issue of the fans is significant because it provides a window - while Pistorius was busy moving them and his back was turned - for Steenkamp to leave the room for the bathroom unobserved by him. If the state can prove that Pistorius never moved the fans, it seems far less likely that he would have failed to realise that Steenkamp had left the room.
Nel says the whole caboodle is unlikely. "Your version is so improbable that no-one will ever think it is reasonably possible," Nel said derisively. But remember that only one person has to find it reasonably likely: Judge Thokozile Masipa.
Word on the street in journalist circles is that Nel is just getting warmed up. Chances of him finishing with Pistorius by the end of the week now seem slim. Is Nel's former victim Jackie Selebi watching with sympathy? DM