Pistorius trial: A reality under attack

Correctional supervision now looks like a possibility for Oscar Pistorius, but in the second day of his sentencing the prosecution attacked witnesses suggesting he has been charitable and should only be sentenced to home arrest and community service. But to put the former athlete behind bars, witnesses in aggravation will have to shine.

Prosecutor Gerrie Nel paused in his cross-examination of social worker and probation officer Annette Vergeer. "You are laughing. Why are you laughing because this is serious?" He accused Vergeer, who had said the accused and society would not benefit from Pistorius going to jail, of sniggering and disrespecting the court. Repeatedly, Vergeer failed to answer direct questions, not wanting to be pigeon-holed by Nel as the advocate stepped up his call for jail time.

In the second day of arguments in mitigation of sentence in the Pistorius trial, witnesses came under pressure from the state prosecutor. Last month, Pistorius was found guilty of culpable homicide for killing girlfriend Reeva Steenkamp and guilty for illegally discharging a firearm at Tasha's restaurant. Witnesses for the defence have argued that the Olympian has shown remorse and taken responsibility for his actions, has suffered in a loss of income and reputation, has been "broken" by what happened, and should be sentenced to three years of correctional supervision with conditions rather than face jail time.

Vergeer, who has been noticeable in court with her black spiky hair with blond tips, predicted possible dire results if Pistorius goes into the prison system and said taking all factors into account, correctional supervision would benefit both he and society. She has 28 years of experience in the field and regularly works both privately and for the state in sentencing matters. While she said her findings must be objective, in this case she was requested by the defence to conduct a psycho-social pre-sentencing report for the court.

Vergeer read the judgment, got relevant documents and court transcripts from the defence, interviewed Pistorius, spoke to the prosecution, and tried but was unable to speak to the Steenkamp family. She cited case witnesses who said Pistorius had shown genuine remorse, was bereaved by Steenkamp's death and had tried to get her help while she was dying. She believed his emotions after the killing and during the case were sincere.

She accepted that he takes responsibility for his actions and because he is young, a first-time offender, has shown remorse, and is highly unlikely to re-offend, correctional supervision of three years with conditions such as community service and house arrest, is the most just outcome, perhaps coupled with a suspended sentence. "In the case of the accused it could not be appropriate punishment and certainly not the only punishment," Vergeer said of jail time.

The social worker was highly critical of the prison system and claimed that in general it does not cater for people with disabilities. It is "virtually impossible" for Pistorius to become a useful member of society again if he goes to prison, she added. Vergeer said prisons are overcrowded, don't have enough therapists, don't have railings for disabled people, and feature communal showers with concrete floors and no baths. She added that rape, drugs, gang-related activity and sodomy are common and prison has not been proven to rehabilitate offenders.

"It will not assist him but break him as a person. It will take his future away," said Vergeer.

Nel picked apart her testimony. First, he clarified that she was working privately for the defence team, not for the state. Second, he established that Pistorius did not tell her he accepts responsibility for what he had done, but accepts the court's findings and verdict. Nel asked about taking into account the Steenkamps and her recommendation that Pistorius make a retribution payment. She had noted that he had been making monthly payments to the family and had put R375,000 from the sale of his last car into a trust for the family, but Nel said they had rejected the "blood money".

The prosecutor caused the most damage on Vergeer's claims that the prison system cannot cater for disabled people. He found she misrepresented the ratio of South Africa's inmates to therapists as she included prisoners who haven't been sentenced and cannot receive therapy. She has only been inside Johannesburg and Krugesdorp prison, which she visited two years ago, has never been to a private prison, and never been to a hospital ward, where Pistorius could be kept because of his disability if he is sentenced to serve jail time. While Vergeer said she is in touch with prisoners and wardens, she offered no clear basis for her claims that the toilet facilities, showers, railing and hard, slippery floors will not be suitable for Pistorius.

Asked about gang rape, Vergeer said, "He might be exposed to those circumstances and without legs he is going to be vulnerable, a lot more vulnerable than able men." Nel suggested he will bring someone to testify that prisons cater for people with disabilities, but Vergeer said Pistorius will still be vulnerable because in conditions he can't control, he may suffer. Court conditions to protect people with health issues are not always implemented, she said.

Vergeer also admitted that Pistorius gave no clear indication of what type of work he would do if he gets a correctional supervision sentence. Work opportunities are usually a condition of the sentence but provision can be made for someone who will get a job. Finally, Nel said Vergeer had also argued for correctional supervision in the high profile cases of Molemo 'Jub Jub' Maarohanye and some reports said she claimed the same for 'Sunday Rapist' Jaco Steyn.

The Pistorius family appeared confident on Tuesday but Nel was quickly on the offensive. He started by cross-examining Pistorius's manager Peet van Zyl who has listed the many charitable efforts the athlete had been involved in. Van Zyl agreed most sportsmen are involved in such, in collaboration with their sponsors, corporate social responsibility projects, and personal branding. "So the fact is that it's merely an advancement of your career to become involved," said Nel.

But Van Zyl said Pistorius "always went the extra mile", made himself available for charity events for free, and had donated money so disabled individuals can get prosthetics.

On Monday, van Zyl blamed the media and prosecutors for the termination of income opportunities for Pistorius but on Tuesday he admitted the athlete only has himself to blame. Yet according to the manager, he is still receiving offers for Pistorius to speak. "There are still people out there that wanted Mr Pistorius to tell his story of motivation and inspiration to the world," said van Zyl.

On Wednesday, Nel will continue to cross-examine Vergeer and will then call witnesses in aggravation of sentence. Arguing that Pistorius must serve jail time, he will focus on the degree of negligence that Judge Thokozile Mapisa mentioned when she found Pistorius walked towards the bathroom with the intention to use his gun, loaded with particularly lethal ammunition, on a locked bathroom door. It's likely a member from the Steenkamp family will appear to express the pain Pistorius has caused. Nel has also suggested a witness may appear to explain how prisons cater for people with disabilities.

The prosecution is on the warpath, but putting Pistorius behind bars may be difficult. Trauma counsellor Lore Hartzenburg has testified that he has shown remorse and has paid a huge personal price. Van Zyl explained the good he has done for the community and suggested that could continue. Vergeer recommended correctional supervision. And the Department of Correctional Services official Mashaba Maringa also recommended correctional supervision in the interests of rehabilitation.

Vergeer and Maringa's testimonies suffered under cross-examination, but Nel's challenge is that to get Pistorius locked up he will have to provide stronger witnesses.

This column first appeared on Daily Maverick.