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Khaya Dlanga: Does race distort the scales of justice?

“Let justice be done, though the heavens may fall.”

So said Britain’s Lord Chief Justice, William Murray, the 1st Earl of Mansfield, when he made a ruling in 1772 that would lead to the abolition of the slave trade in England.

The heavens, of course, did not fall. And though Murray’s decision was not well received by the slave traders, justice had been done, even though it proved unpopular.

In the court of public opinion, most people believe that Oscar Pistorius knew what he was doing when he fired four shots through a closed toilet door in his Pretoria home on February 14 last year, killing his girlfriend Reeva Steenkamp. Judge Thokozile Masipa accepted his version of the events of that tragic Valentine’s Day, but she also said that he had not been a reliable witness.

Many people were confused about how Masipa decided what was and wasn’t plausible about Pistorius’s testimony.

‘Gross negligence’
Regarding the incident at Tasha’s restaurant when Pistorius was accused of firing a gun, he said: “I didn’t discharge the firearm. I don’t remember having my finger on the trigger … I know my finger wasn’t on the trigger.”

Masipa found him guilty of the firearms offence and he was given a three-year sentence, suspended for five years. There were witnesses and it was difficult for him to say he did not even have the gun in his hand.

Yet she believed him when he said that he did not intend to shoot whoever was behind the toilet door – despite firing his weapon four times.

Masipa said he had been guilty of “gross negligence”. “Using a lethal weapon, a loaded firearm, the accused fired not one, but four shots into the door. The toilet was a small cubicle and there was no room for escape for the person behind the door.”

The judge seemed to rely heavily on Pistorius’s distress at the realisation that he had shot Reeva. It’s possible that he thought he was shooting an intruder, not Reeva, hence his distress when he found her behind the door. Pistorius knows guns very well and knows how to fire them, and he knew what he was doing when he shot those four shots.

This is why it so difficult for many people to reconcile the relatively light punishment that was dished out to him for causing Steenkamp’s death.

Did race play a role?
Did Pistorius’s race play a subconscious role in the judgment and sentencing? Masipa is a black South African woman who herself has endured prison time under apartheid. But we must not assume that because a person is black that they don’t play into the rules of whiteness even though they may think they don’t.

A study commissioned by the United States Sentencing Commission found that black prisoners’ sentences were 20% longer than those of white prisoners for the same crimes.

We always hear that justice is blind. Can justice be really blind if those who administer it are not? And, of course, I don’t mean literally mean blind judges.

White judges are more lenient towards whites
Just to warn you, I am about to sound like that guy who says: “Some of my best friends are black, but … ”

I lived for a long time with a white lawyer friend years ago. He told me that judges in South Africa, and white ones in particular, are more lenient when it comes to sentencing white people who have been found guilty of crimes.

He said that the judges may never admit it and would never actually say it out loud, but it does happen.

Is this to say that Masipa made the wrong decision? She made her decision based on the facts before her and how she interpreted them. Does that mean we have to agree with it? No.

That is the beauty of democracy. Should we respect the decision? Of course we should, but that does not mean we can’t question it, even without having expert legal knowledge. This case was broadcast to the public so that we could see justice in action.

Masipa did what she believed was right, “though the heavens may fall.” For that we have to respect her, even though we may question the outcome.

But we have to start asking questions of our justice system and demand that the law treats all races equally.

We want to know if blacks and whites are sentenced the same way for the same crimes or not.

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