Life, etc


By Rebecca Davis 4 March 2014

The second day of the Oscar Pistorius trial dawned wet and wild in Pretoria. REBECCA DAVIS is there trying to stay dry enough to bring you updates from the proceedings at the North Gauteng High Court.

8.15 Send lifeboats to Pretoria Central. We are a soggy bunch here. The rain is coming down in buckets and the streets are awash with water. One journalist grimly wrung out sodden socks in the lobby of the court as we awaited entry to courtroom GD. We now know who one of the major winners from the Pistorius trial will be: a tent run by the Dros restaurant chain opposite the courthouse, which yesterday sold over 400 cups of coffee to sodden journalists.

If things run according to schedule, and we don’t see a re-play of yesterday’s translation dramas, we should be kicking off in court at 09h30. We expect to begin with a continuation of the cross-examination of the state’s first witness, Michelle Burger, who yesterday delivered some compelling testimony as to having heard what she believed was a woman screaming prior to four gunshots. One of the next witnesses is expected to be Burger’s husband, who may have had an uneasy night’s sleep bracing himself for being quizzed by Pistorius’s lawyer Barry Roux about some apparent contradictions between his testimony and that of his wife.

If we haven’t floated away by then, we’ll keep you updated.

11.00 Tea-time at the Pistorius trial, after some continuing Burger interrogation and a bit of unexpected media-related drama. Barry Roux took up this morning much as he left off with state witness Michelle Burger. If I were Burger I would have woken up with a sick feeling in my stomach at the thought of having to face Roux all over again, but apparently Burger is made of stronger stuff than many of us. Burger is accompanied by a different translator to yesterday, but has begun the day testifying confidently in English without seeming to need to rely on the translator at all.

Roux’s opening gambit was again an attempt to convince the court that Burger’s testimony had been affected by the previous media reports she had consumed on the shooting of Reeva Steenkamp. Burger again stayed resolute. Roux interrogated her again on the wording of her testimony in terms of the timing of overheard shots and screaming, and Burger still wouldn’t  budge.

Here’s where the daily sideshow intervened. The prosecution’s Gerrie Nel rose to his feet to tell Judge Thokozile Masipa that he had just been shown a picture on his phone which indicated that the face of witness Burger was being broadcast on TV in contravention to her stated wishes. Muttering that this was “serious”, Judge Masipa called an adjournment.

What had happened, it emerged, was that eNCA had been broadcasting the audio feed of Burger’s testimony with an old still photo of her, taken from the University of Pretoria website. ENCA were not the only offenders in his regard: Beeld, to name but one newspaper, published an old photo of Burger on their front page today too.

The court order prohibiting witnesses’ faces from being shown only explicitly mentioned photos taken while the witness was testifying in court, which is presumably why media outlets think they can get away with using old photos. But Judge Masipa begged to differ. Upon returning to the court she effectively extended the ban to include all photographs, old or new, of witnesses who do not wish to have their photos taken.

And fair enough: it could be a radical disincentive for people to testify in cases like these if they suspect their faces may be splashed across national newspapers and TV broadcasts. Judge Masipa was stern, warning media that they needed to respect these kind of regulations by the letter or face penalties. She also said an investigation into the eNCA photo broadcast would be carried out.

With this resolved, Roux was at it again. This time, as we predicted yesterday, he put it to Burger that she could not possibly have heard what she claimed to hear at a distance of 177 metres – with Steenkamp screaming from behind a closed door. Roux said Burger was welcome to carry out a test to prove its impossibility. Burger responded that houses had been built between her property and Pistorius’s in the interim, likely muffling sound. Roux said the test could be carried out at closer range if she liked, projecting total confidence.

When we closed for tea, Roux was grilling Burger (apologies) about whether it was possible that her husband’s testimony had influenced her own. Just before the break, he threw out a weird question about whether Burger would have been certain to give an accurate cellphone number at the time of giving a statement to police investigators. Bemused, Burger replied that she knew her own cellphone number. This being Roux, this could be an entirely diversionary query, purely designed to momentarily chuck Burger off balance. Or there could be more on the cellphone to come….*cues theme music from ‘Jaws’.

13h00 Lunch at the Pistorius trial, where we’ve seen witness Michelle Burger complete her time on the stand and second witness Estelle van der Merwe called to testify.

The last moments of Barry Roux’s cross-examination of Burger started with him trying to get her to concede that the statement that she gave to police investigators, and that given by her husband, were so similar that the two must have conferred beforehand. Burger denied this, saying essentially that the reason for the similarities between the two testimonies was simply that they had shared very similar experiences on the night in question.

Roux then questioned Burger on the element of her testimony which seems weakest in terms of supporting the state’s case: the fact that she claims to have heard both a man and a woman yelling for help before she heard gunshots. Why would a man shout for help if he is about to kill his girlfriend, Roux asked. Burger was evasive in response, leading Roux to accuse her of being unwilling to make any concessions at all – even logical ones – which might help Pistorius.

Burger had previously indicated that she may have heard a woman’s scream continuing shortly after shots were fired. Roux rubbished this, but in order to do so he had to provide some grim details as to Steenkamp’s death. Of the four bullets fired, he said, the first hit her right side, the second missed and hit the wall, the third struck her in the shoulder, and the last hit her head.

The final bullet, the bullet which struck Reeva Steenkamp’s head, did so with a force that would have left Steenkamp brain-damaged immediately and therefore incapable of crying out further. For this reason it was impossible that Burger had heard a woman’s scream after the last shot, Roux said: another attempt to cast doubts on Burger’s credibility as a witness.

The defence’s Gerrie Nel had the opportunity to help his witness regain some ground with final questions. He chose to attack the defence’s claim that Burger had mistaken the sound of a cricket bat striking a door with that of gunshots. How would you break down a door with a cricket bat, he asked Burger. She demonstrated, pretending to hold a bat and swing it at a door. Now can you make the sounds that you heard that evening, he asked. “Bang….bang bang bang,” Burger replied. Nel hoped to impress upon the court the difference between both the tone and the rhythm of the sounds.

It was in her final moments in the stand that Burger succumbed to tears, when explaining her emotional state upon hearing the sounds of shots and screams. Standing down, many will consider that she stood her ground with great strength.

Succeeding Burger in the dock is the eighth witness on the state’s list: Estelle van der Merwe, who lives in the same estate in Pretoria where Pistorius shot Steenkamp. Van der Merwe lives a good deal closer to Pistorius’s property than Burger did – 98 metres apart, as opposed to 177 metres. She has testified that she heard voices talking shortly before 2am, and four “bang bang” explosion sounds at around 3am.

If van der Merwe can convincingly make the case that what she heard could have been an argument, it will bolster the state’s case. But so far van der Merwe has shown signs of being a tense and nervous witness – and at the moment, she’s got the guy on her side (Nel) asking her questions. When Barry Roux brings his gimlet gaze to bear on her, she may not hold up as well as the state will be hoping.

Photo: Olympic and Paralympic track star Oscar Pistorius smiles during his trial for the murder of his girlfriend Reeva Steenkamp, at the North Gauteng High Court in Pretoria, March 3, 2014. REUTERS/Herman Verwey/Pool

16h30 Court has concluded for the day, with the post-lunch session taken up by more testimony as to noises heard at Pistorius’s place in the early morning of 14th February 2013 by Estelle van der Merwe and Charl Johnson.

Van der Merwe was a bit of a perplexing witness, at times seeming confused by the questions, requiring a lot of repetition. Her claim was that she heard two people in what appeared to be an argument, but she conceded that she couldn’t make out the sounds or even identify the language, and could only hear one side of the discussion – a woman’s voice talking intermittently. Barry Roux, who treated her far more gently than Burger – possibly because she was assessed as less of a threat – claimed that a later defence test proved that sounds could not carry as far as van der Merwe’s house in Pistorius’s estate, especially as her bedroom was on the wrong side of the house.

One element of van der Merwe’s testimony that defence may have appreciated was her claim that after hearing what she thought were gunshots, she heard the sound of crying, which she believed to be Oscar’s (without much evidence for this claim), and described as sounding like a woman’s crying – which fits well with the defence’s attempts to paint all accounts of “female-sounding” cries on the evening in question as Oscar’s rather than Reeva’s.

Taking the stand after van der Merwe was Charl Johnson, the husband of earlier witness Michelle Burger. If you were following the audio feed at home or work, chances are that you got a better grip of his testimony than us journalists in the courtroom, since Johnson spoke extremely softly and had to be asked several times by Judge Masipa to speak up.

Johnson in essence repeated the testimony given earlier by his wife: he was woken by the sound of screams, followed by both a male and female voice yelling for help. Like Burger, he said that the sound of a woman screaming then intensified in fear and emotion, followed by the sound of shots and more screams. If Johnson did not make quite as strong and compelling witness as his wife – he seemed more nervous – he also succeeded in appearing methodical and organised. After seeing aerial maps of Pistorius’s estatein subsequent media reports and realising how close he and his wife lived to Pistorius’s house, for instance, he used Google Maps to plot the exact distance to see if it matched his estimate of the noise.

Tomorrow it will be Johnson’s turn to face Barry Roux, and see if he can stand up to the grilling as well as his wife. Roux may repeat his claim that the close similarities between Johnson and Burger’s testimonies may suggest they collaborated on the narrative. But at the same time, if Johnson simply sticks to his guns and insists that both he and his wife’s testimonies are simply the truth, that may create a powerful impression.



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