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Oscar Pistorius: The States case of Hypocrisy and Injustice

Oscar Pistorius: The States case of Hypocrisy and Injustice

The NPA and State are turning the Oscar Pistorius case into a modern day version of a day trip to the guillotine with Nel taking centre stage as Robespierre. An additional spectators row could be inserted and iPads replaced by knitting needles. The proverbial guillotine rolled in.  The irony is of this analogy is that, the veracity with which the State and NPA pursue a Dolus Directus sentence, had the death penalty not being abolished, Nel may well cite the many death threats that have appeared on social media as a demand by the public that it is warranted in this case due to public interest.

The  States appeal of sentence is indicative of all that is wrong in an  organisation commissioned and responsible for promoting justice and respecting the law,  instead it is replacing these principles with a ego fuelled desire to win at any cost.

What is apparent is how the States team and the NPA practice their role with a profound lack of integrity and an arrogant display of subjective vindictiveness and professional misconduct that cloud the very notion of justice to such a degree that what is displayed is a personal, unethical act of prejudicial vengeance. The State  have moved so far from the principles they should follow in their Code of Conduct that the code has been trampled under foot, reduced to ashes and recycled into a code of unprofessional malpractice.

Despite Judge Masipa making it abundantly clear in her sentencing judgement that public perception or rather misperception that Reeva died as a result of domestic violence was erroneous and that there was no evidence that Oscar was violent towards Reeva nor was there any evidence that there was domestic violence in the relationship. The State contrary to what they claim continue to view and portray the case as one of Violence against Women.

Bulelwa Makeke identifies herself as Head of Communications for the NPA on her Twitter account. She therefore draws a relationship and connection between her personal views and her professional life. What she tweets  reflects on the NPA. On the 8/7/16 she tweeted a poll, inviting people to vote whether the NPA should appeal in the Oscar Pistorius case. No consideration was given to the response that might ensue. Instead she abdicated all responsibility and displayed a blatant disregard for reply tweets she was sent. Consequently she made no effort to remove what she wrote when she received what could be considered a death threat towards Oscar Pistorius.

Judge Masipa having delivered  her judgement invited either party to see her in chambers where she would consider any appeal that was brought. The State instead waited until the last possible moment before lodging their appeal.  It is worth considering whether this wait was to allow the myth that this was a case of domestic violence to once more permeate the fabric of society to enable them to justify their claim that the sentence of 6 years was too lenient for  a person with no legs, on his stumps who believed that an intruder had entered his home and fired and tragically killed his girlfriend. The wait also enabled political interference and commentary which became a feature in this case. The Minister of Justice once again chose to intercede in the case with phrasing that could easily be interpreted as an encouragement to appeal.

He encouraged the State to appeal if they had a cogent case. However since the State continue to view this case as one of domestic violence then any verdict or sentence that does not equate with this is viewed as unacceptable, so any appeal would be viewed by the State as cogent. The words of the Minister therefore would almost certainly be viewed as encouragement and his words can only be regarded as yet more political interference in the case. One has to seriously begin to question the link between the Minister for Justice and the ANCWL and organisations refusing to accept that this case had nothing to do with domestic violence.

What the State in their appeal papers conveniently chose to ignore is what Oscar was actually convicted of and the circumstances surrounding the crime. It was a finding of the Court that Oscar was convicted of Dolus Eventualis; That his actions could and in this case did bring about the death of a person and that Oscar reconciled himself to the consequences. Despite Judge Masipa being clear that this was not bordering on Dolus Directus, the State continue to insist it was. This effectively endorses the subjecting a person to one trial after the other and arbitrarily ignoring any verdict it disagrees with. It pays lip service to the trial process and is more akin to convicting a person without trial. If the State can ignore the verdict, disagree with the re-sentencing and appeal any verdict  and ignore any finding they are in disagreement with, then what is the purpose of a trial, surely a more honest approach would be for them to admit that the trial is irrelevant and if they want a person to be guilty then so be it as the State pleases.

The State also claim the Court should remain indifferent to the circumstances of the crime and that regardless of whether  Oscar thought the victim was Reeva or an intruder is irrelevant . While I am not and would never condone taking the law into ones own hands, what the State is saying is  that the father who shoots a man he sees running away after   murdering  his child  should be convicted and sentenced to the same sentence as the man who had murdered the child had he lived. If we fail to consider the circumstances of a case then it can never be called Justice and the term justice should be replaced by the term vengeance. Similarly if we adopt the approach advocated by James Grant, who recently was co-opted on to the States team and advertises this regularly on Twitter and use a particular case to clarify sentencing procedures, then we also have to accept that the practice of law, the State advocates is by its very nature prejudicial and is a direct contradiction of the meaning of Justice.

Furthermore if the State is so concerned about the life of each individual regardless of whether they are an innocent person or a criminal and equates the life of Reeva as equal to the life of an intruder,  then why are South African police armed. Surely every time the police open fire and kill they are killing a person who deserves to live.

The State and SCA in convicting Oscar of murder by Dolus Eventualis rejected that Oscar should have known his actions were unlawful. The State assert that knowledge of unlawfulness does not form part of the legal principle of Dolus Eventualis. The States  interpretation of this legal point is disputed by the two top and probably most accredited legal intellectuals namely Professor C R Snyman,  and Professor Jonathan Burchell, both of whom are responsible for the publication of  much of the respected legal writings and interpretative legal principles. Their works are standard law degree text books The same legal writings referred to by the State and the Defence. This rejection by the  State could be interpreted as a desire to rewrite the legal principles for one unique case. Students of law will therefore study the works of both these professors, while the reality for Oscar is he has been convicted of the crime of murder these two leading minds conclude is not murder but Culpable Homicide and the State want Oscar to service a minimum of 15 years for this legal anomaly.

Thembelihle Ngcobo, a police woman was sentenced to five years for murder by  Dolus Directus in terms of the Correctional Supervision Act earlier this year. That is the same sentence as Oscar got for Culpable Homicide. She murdered her ex-partner with whom she had an argument by shooting him at point blank range numerous times in the head, chest and legs. He had previously taken out a restraining order against her. Despite all the protestations from the NPA and the State about minimum sentences. There was no appeal when the minimum sentence effectively was deviated from what could have been 25 to 5 with release to house arrest after the serving of one year.  It is therefore utter hypocrisy for the NPA  to appeal Oscar's case and not appeal a far more lenient sentence for a more serious crime.

Judge Masipa disagreed with the States numerous assertions that this was bordering on Dolus Directus. The States assertion that Oscar on hearing a noise armed himself. and that very act they argue, constitutes not a desire to protect himself but an act of premeditation. This is a startling violation of a person's right to defend themselves. Oscar on his stumps could not engage in physical altercation. If it had been an intruder as Oscar believed and the Court accepted, then effectively what they State is suggesting is he did not have a right to defend himself. Effectively what the State is maintaining is that an individual regardless of their gender or vulnerability should firstly identify, there is  an intruder and only then do they have the right to arm themselves. If they shoot before being attacked they risk being sentenced to a minimum of 15 years regardless of whether the person they kill posed an imminent threat to their life or was tragically a family member killed in error. Considering the violent nature of South African society and the high number of home invasions resulting in the murder of home owners, is it really  reasonable for the State to suggest that a person arming themselves is liable for a charge of premeditated murder.  It raises further  questions as to how a person could be found guilty of acting in a premeditative way by killing a person he believed posed a direct  threat to him. Contrary to the States claim, the Court did not reject his version but accepted he believed there was an intruder in his home.

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The State skirts over the fact that Oscar was on his stumps, for them it is a reality they would rather ignore, an inconvenient truth.  Both Nel and Andrea Johnson shied away from looking at Oscar on his stumps. Nel ridiculed Oscar's disability during the trial. The State demonstrated, they had no understanding of his disability, therefore they are incapable of recognising the impact of it. The States case was Oscar broke the door while on his stumps and Nel ridiculed Oscar for not leaving the room by the stairs, neither task Oscar could do on his stumps. The State has therefore already demonstrated a complete lack of disability awareness and any reference to Oscar's disability particularly phrases like  overestimation of his disability should be viewed from the premise that the State has consistently demonstrated what can only be viewed as a prejudicial approach to disability. This prejudice is further reenforced in the tweets of James Grant who posted  a caricature of Oscar's  disability on his Twitter page. Such actions are and should be viewed as a violation of the country's disability legislation and appropriate steps taken against the transgressors. In jurisdictions that promote equality for all, the actions of those on the States team would be viewed as a direct violation of equality legislation.

On 6 July, James Grant  tweeted that he couldn't comment on the Oscar Pistorius case. Since Grant acknowledges that he is part of the States team any and all tweets about the case  reflect the States position.  On  8 July, the same day as the head of communications at the NPA tweeted her poll. James Grant tweeted a newspaper article prefixing it with  'On the Significance of the Case' This article published by the Daily Maverick displayed a blatant disregard for the verdict. The writer went so far as to imply that Judge Masipa's verdict was bullshit and the justice system described as a 'spoilt white boys bitch'. The States team is therefore condoning highly emotive  and vulgar descriptions of the Justice system they are employed and expected to regard with utmost respect.

The States team continue to ignore the words of the Judge and such sentiments is indicative of a position that the State no longer respects the legal process and has no respect for the Court and ultimately what can be deduced from this is that the States case has ceased to be about Justice.

The Court found that there was no evidence that Oscar knew it was Reeva, that was a finding. 

The State in its appeal to the SCA continued to argue there was an argument and he knew it was her.

Their present appeal states that "the State neither before this Court or the SCA argue that any 'misperceptions' should be taken into account." There are two ways of interpreting this. Either they do not accept that they have argued Oscar intentional killed Reeva post verdict. This is simply untrue. Their appeal to the SCA was an extensive diatribe of how there was an argument and this was a case of domestic violence. However it is also possible to interpret it and this is my contention of their true position that the misperceptions is that of the Judge in thinking that Oscar's  account of an intruder was true. This then is clear disregard for the verdict. If the State can't accept the verdict how can they possibly be allowed to argue an appeal against the sentence.

Their appeal on sentencing contain  such phrases as 'some regret' and the use of the word mistake and misperception which it places in inverted commas. Both highlight the States true position and their continuance in the case can not be viewed as being in the interests of Justice. If the NPA was truly interested in the application of Justice, the prosecution team in its entirety should be removed.

This has ceased being about justice but has become a State orchestrated political game acted out to achieve political punches and stroke the ego of a prosecutor who has demonstrated contempt for the justice system he is duty bound to respect. The State assertions that killing an intruder and one's girlfriend should be regarded as the same undermines and belittles the serious reality of gender violence. Both their appeal to SCA and this appeal ignore completely the Judgement.. The State presented evidence to the Court, based on the evidence before  the Judge and her assessors concluded that this was not a case of domestic violence. The State and public need to remember that those that testified to hearing a woman scream, heard screams after the gun shots, that could never have been Reeva so the blood curling screams could only have been Oscar and these blood curling screams the State now describes as a display of 'some regret'.

 Nel and Johnson continue continue to attempt to retry this case to get the sentence that would be warranted  if this was a case of domestic violence. Is South African justice therefore a process that the state can appeal and appeal until they essentially get the sentence for the verdict they desire, despite that not being the crime that was committed. They use media and social media as a propaganda weapon to execute their cause.  The actions of the State has long ceased to have anything to do with justice. Instead it has become a personal vendetta by the very institutions that should be exercising Justice.

Nel views Judge Masipa and the Court as his own personal puppet whose strings he believes he has an entitlement to pull what every way he chooses and when it doesn't move as he so chooses, he simply appeals. Andrea Johnson  was quoted as  saying the State would appeal if Oscar was given less than 8 years. Oscar was effectively sentenced to almost  8 years including the year already spent in prison and  on house arrest so their appeal if what Johnson says is the States view is for a mere additional four or five months. However the State have lost all credibility and objectivity in the case.

 If South Africa wanted to use this case to show how its Justice System had evolved from the days of apartheid to one that encompassed the concepts of equality and anti oppressive practice, it has failed utterly. The actions of the State and NPA should be viewed in the same vein as the judgement in the Inquest into the death of Steve Biko, despite the numerous injuries to Biko's body, it was concluded he died from hunger strike. Despite the overwhelming evidence that this was not a case of domestic violence the actions of the NPA and State disregard and ignore this evidence. Instead it has demonstrated an Orwellian approach to Justice and a State and government backed hypocrisy.  

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