We are all full of weakness and errors; let us mutually pardon each other our follies – it is the first law of nature.
VOLTAIRE, A PLEA FOR TOLERANCE AND REASON
IN AUGUST 2013 the date of the murder trial was set. It would begin on March 3 of the following year – one year and seventeen days after the shooting. On November 20, 2013 the indictment was served. There was a surprise. In addition to murder, the Director of Public Prosecutions for North Gauteng, Pretoria, had issued three more charges on which he would stand trial, all of them relating to contraventions of the Firearms Control Act that had passed into law in 2000.
These were trifles in comparison with the primary charge, and in the context of the general gun violence prevalent in South Africa. One held that he had fired a shot from his 9 mm pistol into the air through the open sunroof of a car in which he was traveling with two friends, one of them his then-girlfriend, Samantha Taylor, ‘on or about’ September 30, 2012. The second was that in January 2013 he had negligently fired a shot from a Glock pistol in a crowded restaurant, Tasha’s in Johannesburg, causing damage to the floor and endangering the safety of patrons. The third was that in February 2013, after the shooting, he had in his possession several rounds of ammunition for which he had no license.
Why, Pistorius wanted to know, had Gerrie Nel, the prosecutor at the bail hearing, who would now be the prosecutor at the trial, chosen to bring these three matters to court? The answer his defense team gave him was fourfold. First, that Nel could do so, even though the police had overlooked them before. Second, that in presenting the evidence Nel would endeavor to portray him as a reckless gun fanatic capable of carrying out murder. Third, that it presented Nel with the opportunity to bring Samantha Taylor to the witness stand, in the expectation that she would paint an image of him consistent with a volatile, angry, jealous lover who might plausibly have shot his girlfriend in a rage. Fourth, that if he pleaded not guilty, Nel might think he would be able to expand the possibility of catching him out in contradictions or outright lies during cross-examination, thereby casting a shadow over the veracity of his testimony on the main charge of murder.
Barry Roux, Pistorius’s chief defense lawyer, saw a value in pleading guilty to at least one of the firearms charges, maybe even to all three. In the event that Pistorius expressed due remorse in court, there was a good possibility that, on these charges at least, he would get away with a suspended sentence, or maybe just a fine. More important, he would come across as truthful, which would lend more weight to his version of the events of Valentine’s Day. Also, it would keep Samantha Taylor, who was apparently in vengeful mode after being dropped by him in favor of Reeva, away from the witness stand. South African trial rules in a murder case did not allow the prosecution to present character witnesses unconnected to the specific incident under scrutiny. Samantha Taylor could only be called to testify about a particular incident of which she had personal knowledge. Such was the case, or so the prosecution held, in the charge that he had fired a gun from a moving car. Yet, as Nel understood very well, her appearance on the witness stand might allow him to reveal explosive aspects of Pistorius’s personality that might reinforce the prosecution’s case on the murder charge, in one important respect. Nel intended to demonstrate in court that Pistorius had killed Reeva Steenkamp after a violent argument. Taylor’s testimony might reinforce the notion that this was an entirely plausible scenario.
Looking coldly at the impending trial and the dangers the three minor firearms charges posed, it would have suited Roux for Pistorius to confess to them – but Pistorius had no intention of doing so. He told Roux and the rest of his defense team that he did not consider himself guilty of any of the charges: that the story of the shot in the air from a moving car was an invention; that while it was true that he had been holding the gun that went off under a table at Tasha’s restaurant, it had been an inexplicable accident, for which he had no wish to admit criminal liability; and that the bullets in his house belonged to his father, who did have a license for them, and that he had simply been keeping them for him in his safe.
Pistorius would not budge. He would not tell what, he insisted, would be strategic lies just in order to appear truthful. Nor did Roux put any further pressure on him to do so. Defending the murder charge would be more complicated, but his client insisted he was not guilty of any of the firearms charges, so that would be the end of the matter.
The question that remained to be decided was the identity of the judge. In South Africa the jury system had been abolished in 1969, the apartheid government at the time having displayed a rare enlightenment in acknowledging that an all-white jury could not be depended upon to dispense fair justice to a black defendant. The cultural and linguistic differences between the forcibly separated races were just too great.
On the other hand, placing all the responsibility for matters that sometimes concerned life and death in the hands of a solitary white judge during the apartheid years was not much of an improvement. The system produced some scandalous aberrations. In the late eighties, a white farmer who beat one of his laborers to death was given a suspended sentence, while fourteen black people judged to have shared common purpose in the death of one policeman were sent to death row.
Yet there had been no call for the jury system to be reinstated after the coming of democracy, when capital punishment was abolished. In a country with eleven official languages and what Archbishop Desmond Tutu, the 1984 Nobel Peace Prize winner, called a ‘rainbow’ mix of races, religions and cultures, the consensus was that it would be wise to leave the final word in the hands of one eminently qualified judicial expert. The difference after 1994 was that judges of all races began to be appointed to the bench.
The inevitable flaw in the system was that some judicial experts were more able and experienced than others, and that all of them were human beings whose private experiences, views and political inclinations would diminish the possibility of their exercising their authority with absolute impartiality. In high profile cases, it was hard to believe they would be able to insulate themselves entirely from the biases of public opinion and the media. Judges do not live in a vacuum. Yet, on the premise that there was no such thing as perfect justice, and that juries merely dispersed more widely their individual fallibilities, South Africa stuck to what it knew.
Before the name of the judge in this particular case was announced, both the defense and the prosecution were anxious to know whether the person chosen would be experienced in murder trials and would have a reputation for severity or leniency, for strong-mindedness or lack of resolution. The decision was made in December 2013 by Dunstan Mlambo, the Judge President of the High Court of Gauteng, the South African province that comprised both Pretoria and Johannesburg. Judge Thokozile Matilda Masipa, a black woman, was chosen.
A High Court judge in South Africa since December 1998, at that time only the second black woman to be appointed to that position, Masipa stood out among her peers for her industriousness. One senior lawyer who worked closely with her said she struck him as someone who would have been the hardest-working student in her class at law school. He also described her as a good person, happily free of the wordy pomposity that sometimes afflicted the robed members of the South African bench.
Born in 1947, a year before the apartheid laws were written into the South African constitution, Masipa grew up in Soweto, the vast segregated black township south-west of Johannesburg where Mandela spent sixteen years of his life before his arrest in 1962. She lived with her parents and siblings in a small, red-brick, two-bedroom house identical to the one in which Mandela lived. When she grew up and married she moved to a home with one room which, as she would say later, served as ‘bedroom, sitting room, bathroom . . . everything’. Hers was the typical experience of an urban black person under apartheid.
That meant that, among other indignities, she had received a state education deliberately inferior to that provided for white people. The clear but unstated purpose was to ensure that black South Africans would lack the abilities necessary to challenge whites for the better jobs. But Masipa was part of a stubborn and talented minority of the black population who contrived to overcome the educational obstacles placed in their path. She learned to write excellent English (her first language was Zulu) and obtained a degree in social work in 1974, finding the time along the way to marry and raise two children. On finishing university, she opted for journalism, a career in tune with her developing political consciousness, which grew more militant in 1976 when student riots in Soweto sparked a black resistance movement that had lain largely dormant after Mandela and other black leaders had been jailed in 1964. As Masipa reported on clashes between demonstrators and police, who were detaining black activists in their thousands, she became ever more politically engaged herself. One day, she joined a march in downtown Johannesburg, along with several female colleagues, in protest against the arrest of black male reporters from her white-owned newspaper, The Post. Five of them, including Masipa, were detained, locked up in a jail cell and taken to court, where they refused to enter a plea, declaring that they did not recognize the authority of the apartheid state.
The five were released after their newspaper agreed to pay a fine. Recognizing Masipa’s talents, the paper’s bosses promoted her to a position previously held only by white journalists, as women’s page editor of The Post. From there, she moved to The Sowetan, then black South Africa’s leading newspaper, where she was appointed court reporter, an experience that persuaded her to broaden her horizons and study law.
Often studying at night while continuing to work as a journalist and raising her children, she graduated in 1990, the year Mandela was released. Pistorius was then four years old. Masipa, then forty-three, had fought to do away with the racial privilege that the extended Pistorius family symbolized. While she was growing up in a tiny home in Soweto, Gerti Pistorius and her husband were building up the family dynasty, living in a mansion in Pretoria, the citadel of white power.
Now the fates of Masipa and Pistorius were about to meet. On the face of it, this was not good news for the dynasty’s most celebrated son. His defense team’s scrutiny of her record revealed that her judgments in recent trials indicated a harsh disposition towards men whose victims were women. She had handed down a 252-year sentence in May 2013 to a man found guilty on eleven counts of housebreaking and robbery, three of rape and one of attempted murder. In sentencing him to fifteen years for each of the eleven robberies, twelve years for the attempted murder and a life sentence for the three rape charges, she said she was particularly concerned that he had ‘attacked and molested the victims in the sanctity of their own homes, where they thought they were safe’.
In 2009 she gave a life sentence to a police officer who had shot and killed his wife during an argument. ‘No one is above the law,’ Masipa declared. ‘You deserve to go to jail for life because you are not a protector, you are a killer.’
Might it be, some in his family wondered, that Masipa shared the sentiments of those women from the ANC Women’s League, and beyond, who yearned to see an example made of Pistorius? Would she succumb to the pressure of those who believed that gender violence was the key issue here, and that the opportunity should not be missed to send a message to the nation that attacks on women would be punished with extreme severity?
Masipa would no doubt strive to separate her own views from her interpretation of the evidence in the case, but experience indicated that, in the event of a close call, she would be as likely as any judge to be swayed by her personal susceptibilities. As to the color of her skin, would the fact that she was black, and had a history of political activism, be a factor at the moment of reckoning? Pistorius’s defense team feared initially that it would be. They were mistaken.
Masipa had been a beneficiary of her country’s revolutionary changes and her thinking had moved with the spirit of the times. Politically, as legal colleagues testified, she was a moderate. Following the example of Mandela, she, along with the vast majority of black South Africans, had opted to forgive, if not necessarily forget, the sins of apartheid. Reconciliation, rather than revenge, had been Mandela’s prescription for successful democratic change, and the majority of black South Africans had shown a disposition to embrace it.
Such a willingness to reject retribution not just for forty-six years of apartheid but for more than three centuries of systematic racial exploitation was hard to understand for many white South Africans. The explanation, however, lay in a mixture of pragmatism and generous-heartedness among black South Africans, qualities that Mandela did not possess in isolation, but that he embodied.
The pragmatism was a function of poverty. All black South Africans craved the dignity of political freedom, but most were also slaves to the daily urgency of putting food on the table. They wanted the vote, but even more pressing was the need to get by from day to day. In that light, most had the clear-sightedness to understand the reality that white South Africans had a monopoly on the skills required to keep the water and electricity systems running, and that it was they who ran the businesses that provided them with work. Driving the whites into exile – or ‘throwing the whites into the sea’, as the Pan-Africanist Congress and some other radical black minorities proposed – might afford a pleasing short-term satisfaction, but were such a course to be taken, before long the economic consequences would be catastrophic.
When Alan Dershowitz, a celebrated American lawyer who served on the defense team in the O. J. Simpson case, said on CNN on the eve of the trial over which Judge Masipa would preside that South Africa was ‘a failed state’ and ‘a lawless country’, he was only displaying his ignorance. It was true that the ruling party that Mandela once headed had not been immune to the corrupting effects of twenty years of uninterrupted power, and the administration of the state was often incompetent and lax. Crime rates were high and burglaries were on the rise, yet police statistics showed that between 1994 and 2010 the annual number of homicides had dropped from 26,000 to 16,000. The economy grew year in year out and the poor, who now had far greater access to water and electricity than during the apartheid era, were getting less poor. The average increase in the income of black households between 2001 and 2011 was 169 per cent, compared with 88 per cent for white ones; and though whites still commanded a disproportionately high share of the national wealth, the richest person in the country was a black man. It was possible, by a careful selection of the facts and by setting the bar at Western European or American standards of prosperity, to make the case that the new South Africa had been a disappointment. But the truth was muddled and ambiguous. Things could have gone better but, as examples in the Middle East and elsewhere in Africa showed, they could have gone an awful lot worse.
Don Gips, US ambassador in South Africa between 2009 and 2013, observed that one’s view of South Africa depended on what side of the bed one got out of in the morning. Vestiges of racism remained, especially among older white people, and gross incidents of discrimination sometimes surfaced in the press, but Gips, who was appointed by Barack Obama, noted that ‘the everyday racial atmosphere between black and white is more relaxed in South Africa than in the US’. Afrikaner society was, in the main, more free-thinking than it had been when Mandela came to power and, in the big urban areas at least, black and white people mixed in bars and nightclubs with an ease that startled foreign visitors primed to think of the country in apartheid terms.
Baffling to outsiders who studied international politics was the fact that all the usual reasons for countries to fall apart abounded in South Africa. In addition to the racial and cultural fault lines, there were religious ones, too, with Christians, Jews, Hindus and Muslims living side by side. Inequality in terms of income and standards of education remained among the widest in the world. Yet South Africa was a stable, politically vociferous country, where there were no limits on freedom of speech, elections were free and fair, institutions such as parliament and the press were solid and, in terms of almost every democratic box worth ticking, ahead of most nations – not least another country that had abandoned tyranny about two decades earlier, Russia.
As to the generous-heartedness that provided the emotional fuel for the peaceful transition, that also derived from the poverty and the day-to-day disorder in which most black South Africans had always lived. They were more accustomed to tragedy, less expectant of tidy or happy endings than their relatively pampered white compatriots. But there was a cultural element to it, too, a disposition to empathize and to forgive, which black parents had been passing on to their children from generation to generation. A mystery, though not unique to South Africa, was how a country with so many people who had the milk of human kindness flowing through their veins could yield such a high incidence of rape and, despite the drop in the murder rate, so many horrific crimes, not just against women but often against children. The conundrum was as hard to decipher as the character of Oscar Pistorius himself.
South Africa was a country of extremes, of rich and poor, and good and evil, living side by side. Pistorius, a kind and considerate individual given to hair-trigger explosions of anger, exemplified the national schizophrenia. He mirrored South Africa in that he contained much of the best and the worst of the country within him. And he served to illustrate the bigger truth that individuals, like nations, are unfathomably varied and complex, eluding easy definition.
One thing that was certain, however, was that black South Africans displayed a capacity rarely found elsewhere for understanding and forgiving their enemies – helping to explain not only why they had made peace with the whites but also why the ANC had only turned to armed resistance as a last resort, fifty years after its foundation, and why even then the number of civilian victims over three decades was a tiny fraction of the toll exacted in parallel liberation struggles in Africa, the Middle East, Asia and Latin America.
This magnanimous disposition of black South Africans had a name, ‘Ubuntu’, described by one of its most enthusiastic advocates, Archbishop Tutu, as the custom of seeing that ‘a person is a person through other persons’, and that if you seek to diminish others, you diminish yourself. ‘Ubuntu’ was the reigning spirit of the Truth and Reconciliation Commission which Mandela appointed and over which Tutu presided from 1996 to 1998. It was a way to exercise justice that was in keeping with the political circumstances of South Africa at that time and the values that Mandela and Tutu embodied. Rather than pursue retribution, as in the Nuremberg Trials that followed the Second World War, a pact was sought whereby in return for the confession of crimes committed in the apartheid era – confessions made in the presence of the victims or their surviving relatives – the perpetrators would receive state-sanctioned amnesties from prosecution. Over the two years the commission ran Tutu chaired innumerable anguished encounters and ceremonies of forgiveness, as members of secret apartheid-era police units, but also individuals who had killed on behalf of the black liberation struggle, came forward and made their confessions.
In one especially memorable instance, a notorious assassin in the security police called Eugene de Kock appeared before the commission. De Kock, who had served as a colonel at the head of a state-sanctioned clandestine death squad, had already been convicted of eighty-nine charges, including six counts of murder, and sentenced by a regular law court to 212 years in a maximum-security prison in Pretoria. More killings had been carried out under his leadership that the court had failed to register. He chose to confess to them before the truth commission, even though he had no realistic hope of obtaining a reprieve from jail. His reputation had been such that his own security police colleagues used to call him ‘Prime Evil’. What he confessed to at the commission was his participation in the murders of four other activists, with which he had not been charged. In the presence of a horrified Archbishop Tutu, De Kock gave honest, vivid and gruesome accounts of how he had shot his victims and then incinerated their bodies. He also expressed remorse for his crimes and begged forgiveness of their relatives. They granted it.
De Kock duly went back to his cell to continue serving the sentence imposed by the law that Judge Masipa served, though Tutu might have wished for more leniency. In early 2014, around the time when Masipa was preparing for what was likely to be the biggest trial of her life, Tutu gave an interview in which he spelled out his views on what he regarded as the spiritual limitations of the state’s criminal justice system. ‘There is nothing that cannot be forgiven, and there is no one undeserving of forgiveness,’ Tutu said, adding, ‘We cannot ever say a person is a monster. We can say what they did is monstrous. But once you say someone is a monster you are actually letting them off because a monster does not have moral responsibility. You are also saying they do not have the capacity to become different. You are saying they are totally and completely lost and you cannot say that of a human being, ever.’
Those principles were harder to implement within the professional world that Judge Masipa inhabited, but as she herself would have noted prior to the Pistorius trial, there existed two significant and possibly relevant legal precedents for dispensing mercy, even when the identity of the killer was beyond dispute.
In one instance, in May 2004 a man called Rudi Visagie saw his car being driven out of the driveway of his home at five in the morning. He fired one shot at the car, killing the driver instantly. The driver was his nineteen-year-old daughter. When the case came to be heard, the judge deemed that Visagie had suffered enough and set him free. Approached for comment by the press ten years later, after the shooting of Reeva Steenkamp, Visagie, who had once been a professional rugby player, sided with his country’s greatest sporting idol. ‘I can tell him, I feel for you,’ Visagie said. ‘You can’t take it back . . . you can’t take that bullet back.’
There was also the case of ‘Bees’ Roux, the rugby player who beat a black policeman to death but received a suspended sentence for culpable homicide, with the approval of the victim’s wife and brother, who hugged him in the prosecutor’s office after the deal was agreed.
It is possible that had the victim been a white South African his relatives would have displayed a similar willingness to understand and to forgive. The response to the killing of Reeva Steenkamp was similarly divided among those who had ‘Ubuntu’ in their ancestral culture and those who did not. And also between those who habitually used social media – who were disproportionately white, because whites had a disproportionately greater access to technology – and those who didn’t.
Random samples of opinion among South Africans in the year between the shooting incident and the trial indicated that the attitude of white people towards Pistorius was more vindictive than that of their black compatriots. ‘Pistorius intended to kill her. Let him rot in jail,’ was the majority white view. The ANC Women’s League, a predominantly black organization, had taken the same position after deciding to use the case in its campaign against gender violence. The Women’s League had a credibility problem, though. They had kept quiet when the country’s ANC deputy president Jacob Zuma was tried for rape in 2006 and then, after he was controversially acquitted, openly backed him in his successful bid for the presidency three years later, overlooking the fact that he was a polygynist with four wives.
But among ordinary black people of both sexes and all ages who were not professionally involved in politics, the prevailing response to Pistorius was more sympathetic than it was among whites, regardless of whether or not they were inclined to believe the prosecution charge that he knew who was behind the bathroom door when he fired the fatal shots.
Time and again in conversation with older black women one heard them saying, ‘I think of him and it breaks my heart,’ or, ‘He lost his mother when he was fifteen. I feel I am his mother now.’ Young black men would say, ‘Look how he is suffering. He must not go to jail,’ or, ‘Anyone can do something terrible in a moment when they lose control. It could happen to anybody. We must forgive him.’ Over and over, from Johannesburg to Pretoria to Cape Town, random encounters with black people revealed sentiments along these lines. It was ‘Ubuntu’, as Archbishop Tutu would have been quick to point out, but it also derived from the long history of poverty and curtailed freedom that black people in South Africa had endured. Before, but also after, the end of apartheid, white people entertained the illusion enjoyed by well-off people everywhere that they had control over their lives. Black people, even those whose lives had improved after apartheid, were more likely to carry with them a deeper knowledge, rooted in a keener experience of misfortune, that all individuals were subject to random forces over which they had little control. From this came a greater predisposition to put themselves in the shoes of others, even their enemies. Had blacks done to whites what whites did to blacks for centuries, whites would in all likelihood have shown far less mercy when the day of reckoning came.
Mandela said many times during the four-year transition between his release and 1994 when the terms of the handover of power were negotiated that he understood white fears of black rule. He understood that had he been born white in South Africa he would probably have assumed white racial prejudices. Having been born black, he shared most of his black compatriots’ readiness to judge people on their individual merits rather than on the color of their skin. Not all white South Africans understood that. A number chose to see Mandela as unique in his racial generosity. White South Africans came to venerate him as much as black South Africans did. When he died, three months before the start of the Pistorius trial, on December 5, 2013, his life was celebrated and his death mourned equally by South Africans of all races. But the truth was, as Mandela once said, that the ‘non-racial’ philosophy that had been the driving impulse of the organization he served for seventy years, the African National Congress, came from the people. It had not been imposed from the top down, but from the bottom up.
Judge Masipa was no exception to the general rule. She would be as fair-minded as any white judge in dealing with the white accused, and possibly more capable of imagining herself in his predicament. There was a particular reason to believe so. She, too, was, in practical terms, disabled. A diminutive woman, barely five-foot tall, she was now sixty-six years of age and her bones were riddled with severe arthritis. She walked slowly and haltingly, swaying so precariously that she needed to hold onto someone’s hand to keep her balance when she tried to cover anything but the shortest distances. Pistorius could move more nimbly on his stumps than she could on her feet. In a country where everybody was afraid of crime she would know first-hand that to have limited physical movement increased one’s feeling of vulnerability. The defense’s hope was that in listening to the evidence she might detect a ring of truth in Pistorius’s explanation of what happened that might have eluded a physically more robust, ordinarily able judge.