Breathless Oscar book muddles law

by Mandy Wiener and Barry Bateman (Picador Africa)

Many years ago, the doyen of South African academic criminal law, Professor JC de Wet, described a book as taalkundig ‘n gemors, regskundig ‘n fiasko – linguistically a mess, jurisprudentially a fiasco. I thought of this description while reading Behind the Door.

From the 1940s onward, De Wet was the prime mover in the reconstitution of South African criminal law, which, until then, had been dominated by incoherent borrowings from English criminal law. De Wet’s work provided a systematic analysis of criminal law in which the key concepts then applied by the courts were relentlessly analysed and clarified.

Thanks to De Wet and the judges who followed his lead, South African criminal law is now not a complicated field. Its concepts are well understood. The challenge is more in the application than in the exposition of legal principle.

The Oscar Pistorius trial was not an unduly difficult case. It did not raise novel matters of criminal law. This was a case in which everyone knew how Reeva Steenkamp had been killed and who had killed her. The only question was the reason for the killing.

Read Behind the Door, however, and the trial becomes awfully complicated. The reason is not difficult to divine: at great haste, the authors produced a work of 568 pages, performing what journalists call a “clip job”, combining the ideas and work of others with lengthy summaries of trial proceedings or direct quotations from the court record, without any attempt at reflective analysis. The aim was surely to be the first Pistorius trial book out – to feed a prurient market.

The book begins like a crime novel: “The battered meranti door stands ajar, a crude gap stretching from its midpoint to its upper reaches … Several splinters litter the floor of the tiny space, which measures only an arm’s length in each direction.”

This “it was a dark and stormy night” opening quickly gives way to various descriptions of the fatal night and, after Wikipedia-type mini-biographies of Pistorius and Steenkamp, to the bail hearing, where we read the statements made by Pistorius and parts of the record, with pedestrian accounts of the proceedings.

There are two obvious issues that require careful attention: the unusual ploy by an accused of providing a full account of the event, which could be used in the trial and which made the state’s case much easier, and chief magistrate Desmond Nair’s finding of numerous improbabilities in Pistorius’s version of events as given at the bail hearing. In their breathless attempt to move from the bail hearing to the trial, however, the authors provide little guidance to the reader as to the consequences of these key issues.

The description of the trial commences with sweeping claims such as this: “While the law is a hybrid and the Roman Dutch system is the bedrock, broadly speaking the law governing criminal acts follows the English model.” Presumably, the authors think that courts need only apply English law to determine the meaning of dolus eventualis.

The authors manifestly did not have the time to write a shorter account, in which they could distil the essence of the evidence and help to develop the understanding of a lay reader. Instead, the book provides lengthy and uninterrogated summaries of the court record, as well as significant extracts from it.

The clip-job nature of the book is most evident in the way the authors engage with criminal law. They make use of University of the Witwatersrand associate professor James Grant and the University of Cape Town’s Kelly Phelps. Grant generally does a good job; Phelps borders on the incomprehensible.

Dealing with Pistorius’s testimony, which any lawyer would see was hugely unimpressive (as is evident from the findings of Judge Thokozile Masipa), Phelps suggests: “No person will endure the kind of aggressive cross-examination that he endured and emerged unscathed. Nor does a court expect a perfect performance. It will be a question of balance – taking all of these times on the stand into account, does the Bench think that the fundamental aspects of his story are true?” This is truly banal.

In Pistorius’s case, the court found that he had offered at least two differing defences – putative self-defence and some form of automatism. He was evasive and argumentative.

Phelps claims that it was unfair to Pistorius and to Steenkamp’s family to pursue a premeditated murder case. Why to Pistorius? It worked to his advantage, because the prosecution’s premeditated murder case was clearly a poor forensic strategy.

Later in the book, there is similar confusion in Phelps’s analysis of dolus eventualis, which she describes as “such a technical part of the law”. Any lawyer who has read Justice Fritz Brand’s luminous exposition of dolus eventualis in State vs Humphreys (2013) would be able to guide a lay reader as to its meaning and scope.

Coming out so close to the end of the trial and before sentencing was concluded, Behind the Door cannot deal with any real criticism of the prosecution. But many lawyers wrote early on in the trial that the prosecution’s strategy was ill-conceived – premeditated murder was going to be extremely difficult to prove.

The trial prompts a series of inquiries with which a reflective work should have engaged. The conduct of prosecutor Gerrie Nel raised questions about whether he overstepped the mark by badgering witnesses, especially Pistorius, in a manner that was neither appropriate nor legally justified.

The role of expert witnesses was highlighted in this trial. The defence called Roger Dixon, a qualified geologist, who appeared not to be an expert in the forensic issues on which he purported to give evidence.

The same is true of Professor Merryll Vorster. The authors say that “she is known to most of the legal fraternity, who all have a Merryll story to offer”. The reader is unfortunately not told any Merryll stories, nor how she could diagnose the accused with so vague a generalised anxiety disorder.

Pistorius insisted he thought there was an intruder. The racial implications of this defence are surely not so opaque that they could not have been examined.

The Pistorius case was not legally complex, but it was the first televised trial in South Africa’s history. It brought the criminal justice system into sharp focus. It afforded, indeed necessitated, a proper explanation of the system, its inner workings, its problems and its achievements. Our justice system did not deserve such a rushed book, one without even the completion of sentencing and the application for leave to appeal.

Oh, well. They can always do a second edition.

Judge Dennis Davis is the president of the Competition Appeal Court

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