South Africa

Analysis: D-Day for Pistorius bail outcome, but how will Nair rule?

By Rebecca Davis 22 February 2013

It was another roller-coaster day at the bail hearing of murder-accused Oscar Pistorius on Thursday. When the court’s business began on Thursday morning, many expected the matter of investigating officer Hilton Botha’s newly-revealed attempted murder charges to take centre stage. Though the day ended with Botha’s dramatic replacement, his criminal charges barely got a mention. Instead, prosecution and defence continued to slug it out about whether enough of an argument had been made to justify Pistorius being charged with the Schedule 6 offence demanded by the state. By REBECCA DAVIS.

If you are one of the many South Africans who has been glued to the Pistorius case since Valentine’s Day, it’s a safe bet to assume that unless you are particularly ironclad in your beliefs (or have some inner knowledge the rest of us aren’t privy to), you have had your opinion on the matter swayed several times. This is likely particularly the case for those following proceedings on Twitter, where a particularly powerful blow landed by either defence or prosecution can be retweeted out of context to give the impression that one side has it in the bag.

In reality, though, it is very difficult to know what outcome to anticipate magistrate Desmond Nair giving if the bail hearing comes to an end on Friday, as it’s assumed it will. On Wednesday, Pistorius’s defence appeared to have matters smoothly under control – an impression reinforced by a statement given by Pistorius’s family on Wednesday evening, in which they declared themselves satisfied by the way matters had played out. And indeed, why wouldn’t they be? The state’s only bail hearing witness, investigating officer Hilton Botha, the first man on the scene, was systematically discredited in an excruciating session led by the defence’s Barry Roux which saw Botha crumble on every conceivable issue, to the point where he was left conceding that the state could not contradict any element of Pistorius’s affidavit.

Those are words that may come back to haunt the prosecution in trial. Certainly, on Thursday, Roux didn’t hesitate to come back to that point. When matters started on Thursday morning, the buzz was all about EWN’s revelation that Botha stood accused of seven counts of attempted murder himself, in a case dating from 2011. Initially, conspiracy theories abounded that these charges had been dropped and only reinstated this Wednesday: an impression reinforced when Botha told ENCA on Thursday morning that he had only heard about the charges on Wednesday from a fellow policeman. The situation was rendered murkier by the suggestion that media houses in both South Africa and the UK had been anonymously called on Wednesday to tip them off to Botha’s situation.

The rumour that the charges had only been reinstated the previous day, after Botha’s disastrous testimony, set the Twitterati abuzz. Had some powerful hand intervened to discredit the prosecution? Ever since it emerged that Pistorius’s team had engaged the services of former Sun editor Stuart Higgins – the “Human Sponge” – to deal with his PR, anything that looks like it might be spin emanating from the Pistorius camp has been viewed askance by skeptical eyes. On the other hand, it was reported on Thursday that Higgins had been sent back to London and replaced with local outfit Vuma Reputation Management, possibly because it was better equipped to deal with the unfamiliar South African media situation.

Others wondered whether the National Prosecuting Authority (NPA) had engineered the sudden reinstatement of charges against Botha as a way of removing Botha from the stand to protect its case. But if this case has taught us anything, it’s not to put too much faith in rumour. As usual, the truth seemed more prosaic: the charges had been laid on February 4th, and Botha was apparently only due to defend them in May.

Nonetheless, prosecutor Gerrie Nel was at pains to tell the court on Thursday that the prosecution team had previously been unaware of this pending matter against Botha. And when Nair subsequently demanded that Botha be rooted out from wherever he was hiding in the court building to appear before the court again, many assumed it was to query the attempted murder charge.

But instead, all Nair sought to do was clarify Botha’s confusing and conflicting testimony from the previous day, which had seen him – for instance – initially claim that witnesses who heard fighting between Steenkamp and Pistorius lived 600m away, and then downgrade his estimate by half, to 300m, under the persuasive questioning of Nel. Nair seemed to offer Botha an out by suggesting that perhaps he felt more comfortable in Afrikaans, should have initially given testimony in Afrikaans, and could give testimony in Afrikaans this time around. But Botha insisted that he was happy with English.

A clue as to the inefficiencies of the police system when faced with judicial process was found in the fact that Botha admitted he didn’t have the contacts or seniority to speed up the processing of Steenkamp and Pistorius’s phone records. This was a pretty depressing confession, given that the Pistorius bail hearing is indisputably the most high-profile judicial matter in the land at the moment (and yes, there are extremely legitimate questions about whether this should be the case at all). When it came to sheer farce, however, this moment paled in the face of what was to come.

Let’s not kid: thus far the Pistorius bail hearing has not been particularly glowing PR for either the quality of police investigation on cases, or general organisation of the courts. Little wonder that on Thursday morning, the UK’s Daily Mail ran as its daily debate topic: “Has the Oscar Pistorius investigation damaged your view of South African justice?” We’ve had an investigating officer admit to tramping through the crime scene without protective coverings, thereby potentially compromising evidence – a point you can be sure defence won’t hesitate to mention in trial when the full forensic case is revealed.

We’ve had the same investigating officer subsequently revealed to be facing seven counts of attempted murder himself. On Thursday morning, we had a bizarre piece of theatre where an unidentified woman interrupted proceedings to bring an urgent constitutional application to have Pistorius evaluated by psychiatrists for 60 days – an idea snappily thrown out by Nair. But matching all the above for absurdity was surely the moment when it was revealed that the investigating officer was apparently using one source to determine Pistorius’s offshore assets, and thereby assess his likelihood to be a flight risk: a puff-piece in Sarie magazine.

It was from this august record that Botha derived his belief that Pistorius owned a house in Italy, it emerged – a claim rubbished by Roux. Reading from the piece in question, Nel treated the court to the further tantalising revelation that Pistorius likes pap and YFM. One could only imagine that somewhere deep in the Sarie office, a journalist was at that moment frantically rummaging through her notebooks to find out if she’d written the bit about Pistorius’s Italian house down right.

Nonetheless, it’s worth noting that there is still a bit of ambiguity surrounding the matter of an Italian property: though Pistorius may not own one, it is on record that Pistorius trains for several months of the year in the Italian town of Gemona, where he is apparently well known and liked. When news of the Steenkamp shooting first broke, Gemona mayor Paolo Urbani described Pistorius as a “delightful person” and added: “The news shocked not only me personally but also the whole of Gemona and the region.” Pistorius also reportedly has Italian ancestry via his mother’s grandfather.

The hearing retained its gravitas, however, when Roux summed up the defence’s argument – largely by again tearing apart the state’s argument. The state had failed to prove any motive for Pistorius intentionally killing Steenkamp, he said. Indeed, the only hint the state has provided of a motive was their witness account that potential fighting was heard that evening by a resident of Pistorius’s estate. Roux reiterated the testimonies provided in affidavits on Wednesday attesting to the loving relationship between Pistorius and Steenkamp.

As an interesting article in the New Yorker titled “Love and Murder: The Oscar Pistorius Case” pointed out, though, Roux’s assertions in this regard have been rather strange. Referring to court proceedings earlier in the week, the author wrote: “Roux kept arguing as if love and premeditation are not compatible things – that if he can only keep finding people who say that Reeva would have said yes if Oscar proposed, then murder would be deemed impossible.” But of course, merely to say that Pistorius and Steenkamp were in love does not rule out the possibility of a shooting in anger. Nel took a hard line on this in his closing argument on Thursday afternoon, saying that the love described by witnesses wasn’t in evidence on the night of the incident.

But as ever, the problem comes down to the fact that only two people know what happened on Valentine’s Day morning, and one of them is dead. The other one has so far only given us his account via affidavit – a point returned to by Nel, who brought up the fact that the state has not had a chance to cross-examine Pistorius because the defence wouldn’t risk putting him on the stand.

Roux was adamant that the state has not done enough to prove that the incident warrants classification as a Schedule 6 offence. When ruling that the matter should be treated in this way at the hearing’s start, Nair did say that the offence could be downgraded to a Schedule 5 if evidence pointed in this direction, and that’s what the defence is hoping for. In some ways, Roux’s arguments on Thursday depended on the expectation of this downgrade. When dealing with a Schedule 6 offence, it is incumbent on the defence to provide exceptional reasons why the accused should be granted bail. But Roux concentrated on proving that the case didn’t warrant a Schedule 6, arguably a bit of a gamble, because if Nair remains resolute in the classification of the offence, then it’s hard to see that the defence has done enough to prove exceptional circumstances.

But the state’s evidence, Roux said, falls far below that required for premeditated murder (the Schedule 6 offence). Indeed, he said, the state hadn’t even got enough evidence to prove that murder was committed, let alone premeditated murder. Police had cherry-picked evidence to support their case and ignored mitigating factors, Roux asserted. Carrying Steenkamp downstairs proved that Pistorius had tried to save her life; the fact that Steenkamp’s bladder was empty proved that she had entered the toilet to use it, rather than cower in fear from Pistorius. If Pistorius had wanted so badly to kill Steenkamp, Roux said, why not simply shoot her in bed?

The state’s ballistics evidence – as to the angle at which shots were fired – was weak, Roux claimed, and its crucial witness evidence as to hearing shooting and seeing lights was unreliable due to the distance at which these witnesses had made their observations. The state had, in fact, “no objective facts” to prove premeditated murder, as well as no motive and no eyewitnesses. Pistorius should be granted bail because incarcerating him further would not serve the interests of justice. Pistorius had no history of violence, and no propensity to commit crime. Yes, he may have threatened football player Mark Batchelor once with breaking his legs, but this was just a figure of speech – and a common one, at that, for men in their 20s.

Nair didn’t let this all go uncontested. Botha had admitted he wasn’t a ballistics expert, he reminded Roux. Wouldn’t Steenkamp have called out from the bathroom when Pistorius shouted at the intruder, he asked? (No, said Roux, because she wouldn’t have wanted to introduce herself to imminent danger.) Was it not possible that Steenkamp’s bladder might have emptied as a result of trauma? This was a possibility, Roux conceded – but then again, there were lots of possibilities. If the balcony door was open in the dead of night on a quiet estate, was it not plausible that an argument might be audible, Nair asked? Roux responded that it was the state’s job to prove that, if so.

Finally, Nair asked if it would not provoke outrage from the community if Pistorius was granted bail. You can see the public sentiment changing all the time, Roux responded – a canny answer, and an entirely accurate one, if Twitter is anything to go by. If anything, Roux concluded, it would cause shock not to release Pistorius on bail.

But Nel wasn’t going to let the day’s proceedings end without a fight, in the prosecution’s final arguments. Indeed, his fighting performance on Thursday afternoon appeared to claw back some of the ground lost by Botha. Nel argued that the defence had not done enough to prove why Pistorius should get bail: the mere virtue of being a famous athlete did not constitute special grounds. Nel claimed that Pistorius showed no sign of recognising the gravity of his plight – pointing to his affidavit statement that Pistorius was willing to stand trial if there should be a trial.

Nel even brought President Jacob Zuma into the attack. The president’s own State of the Nation Address had highlighted the need to prioritise violence against women, he said. He argued that the defence’s assertion that Pistorius was not prone to violence was by definition contradicted by both the shooting of Steenkamp and the threats made against Batchelor. How was it possible that Pistorius could walk by his bed twice and fail to notice Steenkamp was not there? If Pistorius retrieved his gun from Steenkamp’s side of the bed, how could he not have thought to rouse her?

All these arguments had been aired earlier in the week. But Nel made one further point which had yet to receive thorough ventilation in court: the fact that two cellphones – allegedly Pistorius’s and Steenkamp’s – were found in front of the shower outside the toilet along with the gun. Why, Nel asked, would Steenkamp place her phone outside the toilet when she visited it at 3am? Pistorius’s version of events was simply improbable, Nel concluded, and the defence had failed to produce the exceptional circumstances under which the athlete should be granted bail.

After the end of Thursday’s proceedings, Pistorius’s family released a markedly less upbeat press release than their version of Wednesday. “Oscar Pistorius and his family fully respect the bail hearing,” it read. “This is a unique, emotional and difficult time for us all”, it said, but “we understand that this is in the best interest for all”. The statement concluded with a message of support to the family of Reeva Steenkamp.

As for Steenkamp, Friday will see the local Heat Magazine become the latest media outlet to profit from Steenkamp’s death by publishing a “world exclusive”: an interview held with the law graduate just seven days before she was shot. In it, a press release claimed, she expressed concern about people misrepresenting her relationship with Pistorius. “You know what [the media] do, they make things up. ‘Reeva cheats on Oscar’, and rubbish like that. I wouldn’t want lies about us jeopardising [his career],” Steenkamp allegedly said.

Steenkamp also said in the course of the interview that she wanted to move away from bikini shoots as a model, saying she hoped to “remove myself from the whole FHM stigma. I want to be seen as a classic model”. It’s to be hoped that word of this reaches the tabloids which have accompanied every article on her shooting with provocative bikini shots.

How will magistrate Nair rule on the matter of bail on Friday, if proceedings are wound up in time?  Earlier in the week, trial commenters seemed to express confidence that Pistorius would be granted bail. But that was largely on the back of Botha’s disastrous cross-examination: one day on, already things seem murkier. Nair may be under pressure to prove that Pistorius isn’t being granted any special treatment as a result of his celebrity status, as the ANC Women’s League has already claimed. On the other hand, it’s unclear whether the state has done enough to support the claim of an element of premeditation in the shooting. Whichever way Nair rules, many will be left unhappy – and even if Pistorius is granted his longed-for bail, the media frenzy that will result when he leaves the police station will surely be nightmarish. DM

Photo: Oscar Pistorius enters the dock during a break in court proceedings at the Pretoria Magistrates court, February 21, 2013. REUTERS/Mike Hutchings



Fudging, obfuscation and misdirection hobble the route to the nitty-gritty of expropriation

By Marianne Merten

"Joyfully to the breeze royal Odysseus spread his sail and with his rudder skillfully he steered." ~ Homer