Authors: John Carlin
What, Nel asked her next, were her feelings towards the accused now?
‘I am very fearful of the accused,’ Martin replied. ‘I have tried very hard to put him out of my mind and do not mention his name in my house. I don’t want to expend energy thinking about him.’
And what, Nel wanted to know, did Martin consider to be a fitting punishment for Pistorius?
‘I really believe Mr Pistorius needs to pay for what he has done,’ she replied. ‘My family are not people who are seeking revenge. We just feel that to shoot someone behind a door who is unarmed and is harmless needs sufficient punishment. I can say I honestly feel that Mr Pistorius should pay for what he’s done by taking Reeva’s life, for what he has done to my uncle and my aunt and to the rest of my family.’
Martin added that the sentence Pistorius received should send a message to society that one cannot do what he did and get away with it. As to the suggestion made in court that he should be placed under house arrest instead of being sent to jail, Martin’s position was clear: ‘It would not fit the crime.’
Roux, alert to the potency of Martin’s testimony, did not keep her long on the witness stand. Cross-examination lasted less than five minutes, the chief purpose of the exercise being to allow Roux the opportunity to put it on record that Pistorius ‘desperately’ wanted an opportunity to apologize privately to the Steenkamps, ‘at whatever time and date’.
Like much of what was heard in evidence at the sentencing hearing, this gesture was aimed more at public opinion than at the judge. What would not have escaped the judge, however, was that Martin had provided the most emotionally compelling evidence of the hearing.
The second and final prosecution witness was Zach Modise, the acting national director of the Department of Correctional Services. He began his testimony with what seemed to amount to a propaganda exercise on behalf of the South African prison system. Placed on the stand by Nel to refute Annette Vergeer’s apocalyptic portrayal of conditions in jail, Modise went to the other extreme and painted South
African prison life as an experience more akin to a vacation camp. Enthusing about the sports facilities – notably the abundance of gyms – and the quality of hygiene and health care enjoyed by prisoners, as well as the spiritual ministrations offered by visiting psychologists and pastors of the church, Modise said that, contrary to Vergeer’s claims, the Kgosi Mampuru prison in Pretoria where Pistorius would be incarcerated if he were sentenced to jail catered amply for the needs of people with every type of disability, providing baths, showers with rails to hold onto, and single cells.
Roux, in his cross-examination, did not give Modise an easy ride, pointing to official statistics that showed an increase in torture and violent assaults inside South African prisons over the previous year. Roux, highlighting the well-publicized influence of criminal gangs in prison, mentioned the case of a prisoner at Kgosi Mampuru called Khalil Subjee but known to inmates as ‘the General’. According to press reports, Subjee had made it known that he intended to ‘take out’ Pistorius, Roux told Modise, who said he knew nothing of this. Roux insisted, but Modise continued to plead ignorance, putting himself in an increasingly uncomfortable position.
If Roux was laying a trap, it worked. So defensive did Modise become under Roux’s questioning that when Roux put it to him that, in the event of his going to jail, Pistorius should receive special treatment, Modise did not disagree. As if accepting that prison was, after all, a dangerous place not well fitted to accommodating disabled inmates, Modise was pushed into declaring that Pistorius should be kept not with the rest of the common criminals but in a hospital wing. Roux, who wanted the judge to hear that loud and clear, reiterated the point. Was the national director of prisons saying, then, that the hospital section would be the appropriate place to incarcerate Pistorius? ‘Yes,’ Modise replied. ‘That would be a fair summary.’
That was quite a coup by Roux. In the worst of cases his client would find himself in the prison equivalent of the hotel suites Pistorius used to frequent in his days of international athletics competition.
When closing arguments began five days into the hearing, on Friday, October 17, however, Roux pressed on with his request that Pistorius should be spared jail and placed under house arrest.
In an emotional appeal to the judge, Roux recalled that the court had concurred with Pistorius that the shooting of Reeva Steenkamp had not been a conscious act. His client, he said, had already suffered enough, both on account of the remorse he had endured and the unfair public pillorying he had withstood.
‘It is our respectful submission,’ Roux said, ‘that never in history before has any accused been denigrated, humiliated and ridiculed on false and irresponsible allegations, to the extent that the actual punishment for the crime would do little to alleviate the ill effects caused by the uninformed in their striving for sensation.’
Pistorius’s fall from grace had been as abject as it had been spectacular, Roux continued. ‘He was an icon in the eyes of South Africans for what he has achieved. He’s lost everything.’ Everything, Roux said, included ‘the person he loved’, ‘his self-image, self-respect and dignity’, ‘his career’, ‘his reputation’ and ‘all of his money’. ‘There is nothing left of this man,’ Roux said. ‘He’s not only broke, but he’s broken. He hasn’t even the money to pay for legal expenses. He has nothing left.’
And yet, Roux said, the charitable works Pistorius had done showed that he had it in him to be valuable to society. ‘He wants to make good as far as possible,’ Roux concluded. ‘Serious regard should be given to a community-based sentence so something good can come out of this.’
Nel, replying to Roux, repeated for the third time in the week
his charge that house arrest would be a ‘shockingly inappropriate’ response to Pistorius’s crime. Yet he stopped short of asking for the fifteen-year sentence which was typically the maximum available in cases of culpable homicide.
‘The minimum term that society will be happy with will be ten years’ imprisonment,’ Nel said. ‘This is a serious matter. The negligence borders on intent. Ten years is the minimum.’
Once again, Pistorius wept as Nel conjured up a picture of the crime he had committed. ‘The deceased died in a small cubicle behind a closed door,’ Nel said. ‘Three bullets ripped through her body . . . it must have been horrific.’
Nel noted that some witnesses had said, ‘Please don’t break the accused’; yet what the court should not forget was that Pistorius had broken an entire family. As to Roux’s point that Pistorius had endured excessively negative media coverage, Nel was not sympathetic, offering instead a whining parody of Pistorius’s complaint: ‘I’m a victim, feel sorry for me, the media victimized me. When I wanted the media to capture my brilliant athletic performance, I loved them; when the media write about my trial, it’s unfair.’
Nel also attacked Pistorius for falling back on his disability as a reason to be spared the punishment he deserved. ‘I find it disturbing,’ Nel said, ‘that a person who fought to compete with able-bodied athletes now shamelessly uses disability in mitigation.’
Arguing strongly for a jail sentence, confessing that he battled to keep his own emotions in check, Nel declared, ‘We shouldn’t fail the parents. We shouldn’t fail society. Society may lose its trust in the court.’
Nel ended his appeal to the judge, who adjourned proceedings for four days until Tuesday, October 21, the date on which she would at long last deliver her sentence.
*
The Pistorius family arrived in court just after 9 a.m. on what would be the forty-ninth and final day of the trial, with Aimée and Carl telling reporters sitting behind them that they would stand by their brother no matter what – and that whatever punishment he received from the judge, he would never get over what he had done. June and Barry Steenkamp said they would never get over their daughter’s death either. Pistorius walked in wearing his customary dark suit, white shirt and black tie, but this time carrying a bunch of white roses he had received from a supporter outside the court. The green plastic bucket remained at his feet, but this time he looked as if he would not need it. He sat down alone in quiet contemplation, his face revealing nothing, even though he knew the chances were high that he would not be spending that night in his comfortable bed at the plush cottage in the grounds of his uncle Arnold’s large home – that for the first time in twenty months he might be back in a jail cell, to remain there alone with his demons but side by side with other criminals, for who knew how long?
Judge Masipa walked in, listed Pistorius’s two convictions – culpable homicide and discharging a firearm in a public place – and declared: ‘The decision on sentence is mine, and mine alone.’ The views of the two assessors who had sat next to her during the trial did not come into it. It was up to her to take into account the chief factors determining the appropriate legal response: punishment, retribution, deterrence and rehabilitation. The task she faced in sentencing also concerned finding ‘the right balance’ in the interests of society. But she acknowledged that the process of sentencing was ‘unscientific’, allowing for reasonable people to arrive at different conclusions.
Pistorius sat bolt upright, staring straight ahead at the judge, still betraying no emotion, as if steeling himself to take on the chin whatever sentence she handed down.
The further Judge Masipa went into the reading of her judgment, the more it seemed Pistorius should prepare for the worst. Twenty minutes into the court session she delivered what sounded like a terminal blow to the argument made in favor of house arrest by Annette Vergeer. ‘Her evidence,’ the judge said, ‘was slapdash, disappointing and had a negative impact on her credibility as a witness’. By contrast, the evidence put forward by Zach Modise on behalf of the Department of Prisons had been convincing. Modise had been a good witness, the judge said, and while it was evident that the prison system was not perfect, it was ‘progressive and professional’.
‘I am satisfied,’ Judge Masipa declared, ‘that the Correctional Services Department is suitably equipped to deal with inmates with special needs.’ Noting that she felt ‘unease’ at what she called ‘the overemphasis’ on Pistorius’s vulnerability in the evidence put forward by the defense, she believed him to have ‘excellent coping skills’. Making it clear that she did not believe Pistorius merited exceptionally lenient treatment, she added, ‘It would be a sad day for this country if an impression was created that there is one law for the poor and disadvantaged and another for the rich and famous.’
Still more ominously for Pistorius, the judge said that the prosecution had been correct in characterizing his crime on the night he shot Reeva as ‘grossly negligent’, so much so that ‘it bordered on
dolus eventualis
’. In acknowledging the fine line in this case between manslaughter and murder, the judge was all but pre-empting the nature – if not the length – of the sentence she meant to pass. Pistorius’s facial expression began to alter. Shifting his eyes away from the judge and down onto the floor, he looked anxious and increasingly woebegone.
Judge Masipa did acknowledge that Pistorius’s remorse was genuine, that his conduct immediately after the incident in particular had
shown ‘he wanted the deceased to live’, and she did say that she would take his disability and vulnerability into account. Yet she said that the sentence proposed by Vergeer and the social worker Joel Maringa ‘would not be appropriate in this matter’.
‘I am of the view that a non-custodial sentence would send a wrong message to the community,’ the judge said.
Jail it would be, then, and all that remained to be known was how long the sentence would be. Before getting there, she made a point of addressing the Steenkamp family’s sorrow.
‘Young, vivacious and full of life . . . a promising young woman who cared deeply for family, who was full of hope for the future, and lived life to the full. The loss of life cannot be reversed. Nothing I do or say today can reverse what happened to the deceased and to her family. Hopefully this sentence shall provide some sort of closure to the family . . . so they can move on with their lives.’
Then Judge Masipa instructed Pistorius to stand up and delivered her sentence. On the firearms charge: three years in jail, suspended for five years. On the conviction for culpable homicide: five years in prison.
There were no gasps, no shaking of heads, no sound or detectable movement at all in the courtroom. Not even from Pistorius himself, who seemed to have turned to stone, his face revealing no emotion at all as the judge left the courtroom, slowly and haltingly, for the last time. He sat down, knowing now that he would not be going back to his safe and comfortable cottage for a long time. He turned and, just before two policemen led him down into a holding cell below the court, he reached out both hands to his uncle Arnold and his aunt Lois, his eyes cast down. All that was left for him now was to do as he would at his mother’s or his older brother’s bidding when he was at school and he was teased by the other children, or when his blisters
were so sore when he woke up in the morning that the pain was too great for him to stand up, or when, early on in his time at Pretoria Boys High, he had kept going on that trek across the bush on a blazing summer’s day, even though his legs were chafed and bleeding at the point where the stumps and the prosthetics met – he had to ‘man up’.
There would be no appeal. Barry Roux, who all in all had done mightily well by his client, confirmed as much. Pistorius would begin on the long road towards social rehabilitation – if rehabilitation were possible – by sending a message to the public that he accepted his punishment without complaint, Roux said. But, added Roux – who was owed legal fees by his client but, as he had indicated earlier, had little expectation that they would be fully paid – there was some good news for Pistorius. By his estimate, Pistorius would be eligible for release into house arrest after ten months in prison.
Speaking on the street outside the courtroom, Arnold Pistorius read out a statement expressing his family’s feelings now that the long ordeal was over.