Carl Pistorius. (Jaco Marais, Gallo)
It was a rare clear victory for the embattled Pistorius family on Tuesday, when Carl Pistorius (brother of Olympian and Paralympian Oscar "Blade Runner" Pistorius) was acquitted on all charges relating to a fatal car accident in 2008 – even the most minor of charges the state could dredge up.
Since Oscar Pistorius shot Reeva Steenkamp on Valentine’s Day, such success has evaded both brothers.
Oscar received bail – but with restrictions that nearly amounted to house arrest. He won the right to much more lax bail conditions – and was quickly criticised for using those reworked terms to start training again. The new conditions specifically allowed him to compete abroad – but recently his agent confirmed he was in no psychological state to actually do so.
But on Tuesday there were no similar qualifiers or downsides for Carl Pistorius. Magistrate Buks du Plessis told an unusually full Vanderbijlpark court that the state failed to prove any negligence on his part, or even that he failed to be a considerate driver.
For Carl Pistorius, relief could not have been packaged in a larger dosage.
Initially, he faced the possibility of a jail term, or at least a hefty fine, for culpable homicide in the death of motorcyclist Marietjie Barnard. The state initially withdrew charges, citing insufficient evidence, then, in the wake of his brother's arrest, decided to push it forward nonetheless.
But before judgment was delivered, prosecutors admitted they could not show the injuries Barnard sustained in the collision between her bike and Pistorius’s 4×4 had caused her death, scuppering culpable homicide for good.
That left Pistorius accused of negligent driving (a relatively serious matter) and inconsiderate driving (an extreme case that may earn you a slap on the wrist). On those charges, the state held, Pistorius needed to defend himself.
Evidence of negligence
But Du Plessis was having none of it. Had there been evidence of negligence on the part of Pistorius, the magistrate said, he would face consequences, even if Barnard were proven to be to blame for the collision. As things stood, however, there were other possible causes for the collision, Du Plessis found: say, that Barnard had been drinking, and there was no proof that Pistorius should have seen and avoided her.
And, with that, one brother walked free.
Pistorius almost immediately said he was considering suing the state for malicious prosecution. In that, though, he is unlikely to succeed.
“These kind of cases are very hard to win,” said Peter Jordi, an associate professor at the University of the Witwatersrand, who deals with claims of police excesses, and the occasional witch-hunt prosecution case, at the university’s law clinic. “You have to show intentional baseless prosecution. If the prosecution can show that there was just a hint of negligence [on the part of Carl Pistorius] and they decided to prosecute on that, then it will be enough.”
Though the timing of the reinstatement of the case against Carl Pistorius may look suspicious, several experts confirmed, a successful civil claim against the state would need a smoking gun in the form of, say, an email exchange where a prosecutor admitted there was no case, but decided to take it to court on the basis of public opinion.
Even that, though, may not be enough.
A simple calculation
​"There is the principle that justice must not just be done, it must be seen to be done,” said Bulelwa Makeke, spokesperson for the National Prosecuting Authority on Tuesday, shortly after the acquittal of Carl Pistorius and news that charges had been dropped against an accused in the murder of Anene Booysen. “There are some cases where the prosecutor may not think there is a good chance of success, but we let the courts pronounce on it. There can be reasons to do that."
Deciding who to prosecute and who not to, Makeke said, is seldom a simple calculation and needs to take into consideration everything from a potential waste of precious court time to facts that may only emerge during the course of a trial.
With that as the common course of business in prosecutions, Carl Pistorius would, it seems, be ill-advised to voluntarily put himself back in the public spotlight.
His brother will not be granted a similar choice. After something of a hiatus in media attention, Oscar Pistorius is due back in court in Pretoria in early June, when the date on which his trial is to begin will most likely be set.
And for Oscar Pistorius, legal experts say, there will be no question of malicious or undue prosecution. In his case there is enough uncertainty that only a court can decide what really happened on the night Steenkamp died.