The victim without a voice
Was the Oscar Pistorius trial really a reflection of the state of South Africa? From the day the Paralympian shot dead his girlfriend Reeva Steenkamp last year, there have been elaborate analyses by the international media about how this case was the epitome of South African society. It was a grand intersection of how the middle class deals with fears about crime and the soaring rates of violence against women. The Oscar and Reeva story was by no means the archetypal South African story, but the outcome may have consequences for society that once saw Pistorius as its hero and who, like Steenkamp, is the victim without a voice.
Why was South Africa so stunned when Judge Thokozile Masipa found Oscar Pistorius not guilty of premeditated murder and murder? Was it bloodlust that wanted us to see him receive the maximum punishment for killing his girlfriend Reeva Steenkamp? Was it because his defence seemed so improbable to us? Was it because Pistorius is a badly behaved rich kid, who does not take responsibility for his actions? Was it because a woman was shot dead and the person who pulled the trigger should pay for it? Was it because too many women are killed by their intimate partners and this case needed to draw the line?
Or was it because we are all Reeva?
It is not difficult to see why we could see ourselves as the voiceless victims, boxed in a small space, succumbing to an aggressor. It is what we are.
It started as a beautiful love story of a country that overcame oppression and injustice. We found ourselves in the loving arms of our liberators who pledged to take care of us and protect us. We have been through a period of change that has seen our country try to break the chains of racism and inequality. Together we made a place we can truly call home.
And then bad things started to happen. The selfless spirit that swept us to freedom disappeared and in its place is greed, battles for power and resources, wealth accumulation and self interest.
It is a society where the politically powerful exploit their positions for their own benefit and shirk all forms of accountability. It is now a place where answers are few and far between when there is manipulation of the state to install luxuries at a presidential estate or when workers asking for a living wage are shot dead by those meant to protect us.
The love story is fading, and now we are a society that feels abused, disappointed and disconnected from each other.
Our home is a sad and violent place. And the aggressor in our home is powerful and unchallenged. There are voices calling out in anger " Pay back the money!" and " Blood on his hands!" But most of us sit silently behind the shield of our Constitution, hoping it will protect us from the violence of corruption and gluttony.
We wanted Pistorius to be punished for his actions because he was one of few people that the system did manage to bring to court to face the consequences of his actions. He had presented the argument we hear all the time - it was not my intention to hurt you, this is the unfortunate outcome of events beyond my control.
So we were living (or perishing) vicariously through Reeva Steenkamp, thinking justice for her would be justice for us.
The Pistorius case was the biggest story in post democracy South Africa, and we were all sucked into it for various reasons - the star appeal, the beautiful people, the sensation, the clash of legal minds, the intrigue. The absolute tragedy of it all.
Everybody wanted the case to have greater meaning. How it projected the South African justice system, the novelty of having the entire trial broadcast live and the consequences for open justice, promoting an understanding of the law. It was to be the case that symbolised the fight back against abuse of the vulnerable.
Like President Jacob Zuma's rape case in 2006, the Pistorius trial was interpreted as a test for how the South African justice system deals with cases of violence against women. In a country ravaged by women abuse, Steenkamp was somehow projected as the ultimate poster girl for this bigger noble cause, considering her own convictions on the matter. Members of the ANC Women's League and activists protested outside the court on Thursday carrying signs saying: "If you killing a woman you killing a nation". But like Zuma's rape case, the end result had nothing to do with any of this.
Judge Thokozile Masipa had to deal with the cold hard facts. A woman died and she had to decide how this happened, based only on the evidence before her. She found that the state had not made the case for premeditated murder, saying "there are just not enough facts to support such a finding". This was primarily because no evidence was presented to the court that showed there had been an argument between Pistorius and Steenkamp, which led to her fleeing into the toilet and him deliberately firing at her. Masipa also rejected the testimony of state witnesses who said they heard Steenkamp screaming.
Masipa ruled that the evidence with regard to the murder charge was "purely circumstantial". She said Pistorius could not reasonably have foreseen that the shots he fired would kill Steenkamp.
"Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door - let alone the deceased as he thought she was in the bedroom at the time," Masipa said. Pistorius could not have thought of an excuse so quickly as she immediately informed those who arrived at the scene of his version that he mistook Steenkamp to be a burglar. "To find otherwise would be tantamount to saying that the accused's reaction after he realised that he had shot the deceased was faked, that he was play acting, merely to delude the onlookers at the time."
While Pistorius could not be found guilty of murder dolus eventualis [legal intent], culpable homicide was a "competent verdict", Masipa said. She said Steenkamp was killed "under peculiar circumstances", and that Pistorius had been a "very poor witness" who was "clearly not candid" with the court.
Masipa used the test of what the "reasonable man" would do and questioned why Pistorius had fired four shots instead of one. She said he was "too hasty and used excessive force." Pointing to a culpable homicide conviction, Masipa found that Pistorius had been "negligent".
And so Pistorius is likely to go to jail for a lesser charge than had been widely anticipated. His legal team will argue in mitigation of sentence about his vulnerability as a disabled person and his remorse, and should not receive the maximum prescribed jail time.
Masipa had found that "at the relevant time, the accused could distinguish between right and wrong". The inference is that even so, he opted for wrong, firing into a small space, which could lead to a person being killed.
Opting for wrong is common in our society. Whereas the law looks for what the "reasonable man" would do, reasonableness does not govern our national agenda. In Public Protector Thuli Madonsela's report on the Nkandla upgrades, she repeatedly referred to the failure of President Zuma and government to act "reasonably" to cut costs and excesses.
It seems reasonableness does not define how we behave.
This trial was expected to set things right, to distinguish right behaviour from wrong, to mete out maximum punishment to the wrongdoer. It was a showcase trial that was to show zero tolerance for aggression, arrogance and disrespect for human life.
But in our country that kind of justice is hard to find. The National Police Commissioner Riah Phiyega's contempt for the Marikana Commission of Inquiry this week shows how those in power wave away the constitutional obligation for accountability and how little value there is for human life.
In anticipation of the Pistorius judgment, there was too much in the realm of conjecture. Because Masipa was a black woman, there were assumptions that she would have more of an understanding of the imbalance of power relations between men and women, and the scourge of violence against women. People expected that she would have more of an inclination towards the victim, perhaps to even see herself behind that bathroom door.
For whatever reason, Masipa did not do that. She excused Pistorius' contradictory versions of his defence and generally accepted his account of events. Perhaps her dispassionate assessment of the evidence left her with only those conclusions. Perhaps everybody else was too influenced by the emotion and hype around the case and it was only Masipa who was in the position to weigh the objective facts.
Whatever it is that led to Masipa ruling the way she did, South Africa has been left disappointed. On the face of it, it looks like the spoilt rich boy got away with murder - literally - because he was able to play the victim and because his affluence bought him a high powered legal team. When you look deeper, it is the triumph of the aggressor and the re-victimisation of whoever is seeking refuge behind the door.
South Africa is Reeva Steenkamp, and the law, as Dickens wrote, is an ass.
This column first appeared on Daily Maverick.