Opinionista Gushwell Brooks 19 September 2014

Oscar trial verdict [Part Two]: Guilty of culpable homicide but what about justice?

Like any great saga, the Oscar Pistorius murder trial and the analysis emanating from the verdict has become a trilogy and this is that difficult second part of a three-part series. I guess I left many with the sense of emptiness they had after Neil Blomkamp’s District Nine, with many, including myself, yearning for a sequel. “Where is Part Two, Gushwell?” has been the regular refrain since Friday, 12 September.

The first dealt with Judge Thokozile Masipa’s not guilty verdict in terms of premeditated murder and murder charges – crimes of intent – and why I believe her alternative verdict of guilty of a crime of negligence – culpable homicide – was poorly reasoned, in my opinion. This, part two, deals with what a guilty verdict for culpable homicide means.

Culpa negligence is determined by the ‘reasonable person’ test. A test that tries to be as fair and objective as possible by asking how the reasonable person, faced with the same circumstances as the accused, would have responded or reacted, if at all. The conclusion is that if the reasonable person would have acted contrary to the accused, that accused is believed to be factually and legally negligent or culpable.

A typical example that comes to mind is the driver of a motor vehicle travelling at 100 kilometres per hour in a built-up, residential area where the speed limit is 40 kmph. A child chasing a soccer ball suddenly dashes into the road along which the driver is travelling. The driver applies brakes, but is unable to bring his vehicle to a stop in time, running over the child resulting in his/her death. Would the reasonable person have driven at such breakneck speed in a residential area? Would the reasonable person not have anticipated a child might run into the street? These and other such questions determine our hypothetical driver’s culpability, or lack of it.

It is highly unlikely the fictitious driver’s behaviour would be deemed reasonable, unless he was driving at the speed he was driving at because he was escaping a vicious zombie apocalypse. Masipa found Pistorius’ firing four shots through a closed door into a cramped latrine cubicle was unreasonable. As per my previous argument, I still maintain that intent – Dolus – stands, but nevertheless, negligence cannot be viewed as a horrible mistake. It carries with it legal gravitas in that the reasonable person – not the superhuman or saintly – would have acted in a particular way and you failed to. In other words, a little consideration, perhaps respect for human life would have had Pistorius call Reeva Steenkamp to actually ensure she was in bed or in the toilet cubicle, as was subsequently established.

Gone are the days where we hung ’em high and beat confessions out of them. Now the law, with a persistent eye on human rights, our Constitution and modernity tries to rehabilitate offenders during their punitive sentences, rather than condemn them. Pistorius, even if found guilty of premeditated murder, would in all likelihood have re-joined society, unless he was the victim of an unfortunate prison shanking.

Would Gerrie Nel and the National Prosecuting Authority (NPA) seek an appeal if Pistorius receives a stiff sentence? If the NPA persists in an appeal, they would have to prove the judge made an error in law in her finding. Because a sentence for culpable homicide could range from a suspended prison sentence all the way through to 15 years imprisonment, it is highly unlikely an appeal by the State could be based on the proposed sentence, as no matter what the sentence is, it would be sound in law.

Assuming, though, Masipa prescribes the maximum sentence, it would be ridiculous for the State to appeal since a sentence of 15 years imprisonment would have most likely applied if she found him guilty of murder. It would not serve the interests of justice to appeal the same desired outcome, even if that outcome was reached through less desired means.

The real question is: will justice be served on 13 October when we can bring this trilogy to a conclusion? Before we answer that question, we need to establish what justice is. Is it justifiable that a young woman was gunned down, in cold blood, in a latrine cubicle, as a result of her boyfriend’s “negligent” actions and he is sentenced to correctional supervision or a suspended sentence?

Despite the reasonable person test supposedly being objective, subjective factors have to be taken into account as they play a role. The test is always, to what extent? Will Masipa take Pistorius’ disability into account, his childhood of nurtured paranoia, his shoot first then ask questions upbringing and his proclivity for getting into arguments and spats with acquaintances and some unlikable types in and around Johannesburg?

Masipa seemed to place some emphasis on the fact that Dr Johan Stipp found Pistorius in the throes of repentant prayer, so would his religious conviction, which she interpreted as regret, also play a role?

Society, it seems, is already dissatisfied with how justice has been dealt up to this point in the Pistorius matter. Questions pertaining to wealth, privilege and celebrity impacting on how the scales of justice tip for the Paralympian, abound. With culpable homicide having such a broad spectrum of applicable sentences and the seemingly leniency as a result of his unique circumstances, a sentence on the lenient end of the culpable homicide scale would be seen as highly unjustifiable by society.

Although the law and justice should not and cannot be equated, there is an expectation that justice should be seen to have been done by society. This principle justifies the notion of deterrence; potential criminals are deterred from committing crime due to their fear of arrest and subsequent punishment through imprisonment.

Justice would not be seen to be met by the Steenkamp family nor society at large if Pistorius escapes significant imprisonment. Whether that is in fact the case would have to be the subject of the final instalment in this trilogy. DM

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