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25 Aug 2015 13:23
Pistorius could and should have accepted that he was guilty of culpable homicide, writes Ben Winks.
As we waited for Oscar Pistorius to be
freed from prison on parole last week, many among us felt that he had not
served enough time for the senseless killing of Reeva Steenkamp. It is difficult to articulate this subtle
unease - an intuitive sense that there has been a mistake, a mismatch between
crime and punishment.
Yet this sense
seems to be so widely shared (including, it seems, by the minister of justice,
who suspended the parole approval at the eleventh hour) that it can hardly be
dismissed as primitive vengeance.
And it isn’t.
By sentencing Pistorius, for a
conviction of culpable homicide, to “imprisonment
of five years imposed in terms of section 276(1)(i) of the Criminal Procedure Act”,
Judge Thokozile Masipa made him eligible for early release under correctional
supervision (house arrest) after serving only a sixth of his sentence (10
To put this punishment in perspective,
it is exactly the same sentence that was given to Mrs ‘S’, a mother of two
(with a prior conviction for fraud) who filed a false insurance claim for R42 000.
But the court found that this sentence
was still appropriate for Mrs ‘S’, describing it as “the most flexibly lenient form of custodial sentence the Criminal
Procedure Act offers”, which is useful “when the sentencing court considers that imprisonment is essential, but
the circumstances point away from an extended period”.
In the case of Pistorius, who was
convicted of a crime bearing a potential prison term of 12 years, we are left
to wonder what circumstances “point
away from an extended period”. It is often said that a just punishment must fit “the crime, the criminal and the community”. While Pistorius was convicted of a crime of
negligence rather than intention, Judge Masipa accepted that it was “gross negligence that bordered on dolus
eventualis [reckless disregard for the consequences]”. And indeed it had the most terrible,
As for the criminal, a single man with
no dependants, Masipa was unconvinced by his claims of special
vulnerability, as “he rarely saw
himself as disabled and, against odds, excelled as a top athlete, became
respected worldwide and even went on to compete against able bodied persons”. He was also a trained marksman, who fired
four shots through a closed door, knowing that there was a person in the small
cubicle behind it, with no room to escape - “all that is very aggravating”, found Masipa.
What about the community? Accepting, with considerable difficulty, the court’s
finding that Reeva Steenkamp was not a victim of murder, a society so tormented
by violent crime (particularly against women) still expects a stern example to
be set against such senseless disregard for human life. Masipa, however, admonished that “the uninformed general public … may not even
know the difference between punishment and vengeance”.
Masipa acknowledged the intense
suffering of the Steenkamp family, but did not explain how this factored into
her sentencing calculation. She only
expressed the hope that her judgment would provide “some sort of closure for the family and for all concerned so that they
can move on with their lives”.
can 10 months be enough?” asked June Steenkamp last week, when her
daughter’s killer was on the verge of release. “He killed her. He admits he killed her. She’s dead … Only Oscar will know for the rest of his life what really happened.”
That’s the rub: “Only Oscar will know”. Despite a distressing trial, the community
and the Steenkamp family feel that they do not know and will never know “what really happened”. The call for mercy grates against raw wounds
for those who remain troubled by the many aspects of Pistorius’ explanation
which Judge Masipa found “do not
make sense”, meaning that she could say no more than that Reeva “was killed under very peculiar circumstances”. Undoubtedly Pistorius regrets what he did,
just as anyone who found himself in the dock accused of murder would regret
whatever he did to get there.
There is, however, “a chasm between regret and remorse”,
as the Supreme Court of Appeal said in S
v Matyityi: “Many accused
persons might well regret their conduct, but that does not without more
translate to genuine remorse. Remorse is
a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an
appreciation and acknowledgement of the extent of one’s error.”
Ordinarily, remorse is manifested most
credibly by pleading guilty. Even then,
though, the court said that “a plea
of guilty in the face of an open and shut case … is a neutral factor”
which cannot mitigate sentence. Surely,
then, a plea of not guilty to an open
and shut case should count as a factor to aggravate sentence. But this aspect was completely overlooked by Masipa when she sentenced Pistorius for culpable homicide.
Pistorius “seems remorseful”, found Masipa, and he “earlier attempted to apologise privately to
the deceased’s parents, but they were not ready”. This is a most unsatisfactory finding, given
that Pistorius failed—indeed defiantly refused—to manifest remorse in the
only manner that is legally meaningful: admitting that he deserves blame for
what he did.
Pistorius could and should have
accepted, at the outset, that he was guilty of culpable homicide. Had he done so (and had the state accepted
his plea), Pistorius could have given the Steenkamp family a much earlier and
easier path to closure, and spared them the spectacle of a protracted public
inquiry into their daughter’s love life and the bloody details of her dying
But Pistorius did not show them this
modest mercy. Instead, throughout a
tortuous trial lasting 41 days and stretching over six months, Pistorius
mounted a strident defence, insisting that he was legally blameless for what he
had done – that a reasonable person in his position would have done the same
thing. In fact, Pistorius was so anxious
to achieve a total acquittal, not only of murder but of culpable homicide, that
he burdened the court and the Steenkamp family with five days of self-serving,
contrived and contradictory testimony.
Masipa had no hesitation in
finding that Pistorius had at least acted negligently. What is more, she found him to be an “evasive” witness: “He was not truthful when asked about his
intentions that morning, as he armed himself with a lethal weapon. [He] was clearly not candid with the court
when he said that he had no intention to shoot at anyone, as he had a loaded
firearm in his hand, ready to shoot.”
Despite all of this, Masipa
explained that a longer sentence “would
lack the element of mercy”. But
our nation has learnt, through a traumatic transition to democracy, that mercy
makes a mockery of justice if it is not met with truth and atonement.
Judge Masipa described other cases of
culpable homicide, where mercy had demanded even lighter sentences than the one
given to Pistorius. But those cases (as
well as others cited by analysts in defence of Pistorius’ sentence) are
distinguishable for one critical reason: the offenders all pleaded guilty. They placed themselves at the mercy of the
community and the court, and received it.
But when an offender, like Pistorius,
denies all accountability, it is necessary to exact it from him in the form of
an appropriate sentence. That is not
vengeance but justice.
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