Things we lost in the Pistorius fire
"Society cannot always get what they want. Courts do not exist to win popularity contests but to dispense justice," Judge Thokozile Masipa said when she handed down sentence against Oscar Pistorius. There was never going to be universal acceptance of Pistorius's sentence, no matter what it was. But why do we feel so uneasy about the outcome of this trial - a five-year sentence on the main charge of culpable homicide? Why is there a sense that there was no justice for Reeva Steenkamp's violent death? Perhaps it is because Pistorius will actually be out of prison in less than a year, still feeling sorry for himself? Or is it that we remain troubled that this was a crime of passion that could not legally be proven?
The one big problem for prosecutor Gerrie Nel was that he could not prove there had been an argument between Oscar Pistorius and Reeva Steenkamp on the night she was shot dead. His whole case of premeditated murder was built on the premise that Pistorius and Steenkamp had a massive fight, but he had no evidence to prove that this is what led to her death. There were only two people in the house that night and only one of them is alive to give his version.
And it was that person's version, despite inconsistencies and contradictions, that Judge Thokozile Masipa accepted in her judgment. On the facts presented before her, the judge could not make a conviction on Nel's line of argument: that the fight became so intense that Steenkamp fled into the toilet to hide and in a fit of rage, Pistorius fired four times at the door. With absolutely no facts supporting this version, Judge Masipa gave Pistorius the benefit of the doubt.
But now that the case has come to its conclusion, can we honestly say that we can? Was it really a case of mistaken identity based on the fear of an anonymous intruder? Or is there a lingering suspicion that something else might have happened, as it does so often in our society?
South Africa's high crime rate, particularly the proliferation of violent house robberies, validates the fear of a dangerous intruder in the home. There is no part of the country that is immune to the threat of crime and everybody takes precautions to prevent being robbed and attacked in their homes. The profound fear of an unknown attacker is what made Pistorius's version stand up in court, mostly because it is not unrealistic.
His reaction, however, was anything but "normal". "On his own version the accused knew there was someone behind the door," Judge Masipa said on Tuesday. With that knowledge, he fired four high-calibre bullets into his bathroom door. He could not have been surprised to find the person on the other side severely injured or dead.
Still, in her main judgment in September, Judge Masipa said Pistorius could not be found guilty of murder dolus eventualis [legal intent] and convicted him of culpable homicide. However, Steenkamp was killed "under peculiar circumstances", Judge Masipa found, and Pistorius had been a "very poor witness" who was "clearly not candid" with the court.
Delivering sentence, Judge Masipa said Pistorius had been "grossly negligent" in firing at the door, knowing a person was behind it. She took this into account, together with her consideration that neither a custodial nor a long prison sentence would be appropriate, when she decided on a five-year prison term on the charge of culpable homicide. It will concurrently with a suspended three-year term for a secondary charge of a discharge of a firearm at Tasha's restaurant.
According to legal opinion (and his brother Carl's Twitter feed), Pistorius was sentenced under Section 276 1(i) of the Criminal Procedure Act and must serve one-sixth of his sentence in custody. This means that Pistorius can return to his uncle's palatial home in Waterkloof, Pretoria, in 10 months after being confined to the hospital section of the Kgosi Mampuru prison.
There has been general public outrage that the sentence is too light and that the time Pistorius will effectively serve in prison is negligible. However, considering the defence wanted no jail time whatsoever, and the state wanted 10 years behind bars, it looks as if the judge threw her dart directly in the middle. Whether the sentence is commensurate with the crime is relative. There will continue to be questions about the value of human life in South Africa.
Is this the only thing we are uneasy about though? Is it not that we worry that this was a crime of passion that the state could not prove, and therefore the conviction and sentence is wholly inappropriate?
While Judge Masipa could only rely on the evidence presented to her, the rest of society does not. The rest of society knows how easy it is to have been in that bathroom confronting your lover, rather than an unknown intruder.
Just like the prospect of a burglar in a South African home, there is also the likelihood of a burst of elevated emotions stemming from a long-running heated exchange with the person you love. It would not be something unique to Pistorius, who has been known to have violent outbursts in the past. It happens to the best and worst of us. The difference, of course, is how the average person reacts. Many people walk away. Many say extremely hurtful things in the heat of the moment that damage the relationship irretrievably. Some stop and apologise, other don't. Many pick up the pieces the next day and move on. Others do not.
How often do situations like this result in physical violence - which would account for the high rates of domestic abuse in our country? When there are guns in the home, how often does it result in intimate partner killings?
Is it perverse and unreasonable to still consider that such a scenario might have played out in Pistorius's home that Valentine's night? Perhaps. What matters though is that there was no evidence before the court to support such a possibility. The judge ruled that the only evidence the state had of a turbulent relationship, the Whatsapp exchange between Steenkamp and Pistorius, was not relevant to the killing.
The public outrage that the Pistorius sentence sets a bad precedent to deal with intimate killings therefore has no grounds. The facts and judgment do not present this as a case of domestic violence, as it is popularly understood.
But that will not stop the popular belief or speculation around the case. The ANC Women's League said on Tuesday night that it intends to make representations to the National Prosecuting Authority to urge an appeal as this was "in the interests of justice" and would "send a strong message to the public that crimes against women should carry the maximum penalty".
"The league wishes to reiterate that it remains dissatisfied with the culpable homicide verdict delivered by Judge Thokozile Masipa… The ANCWL has consistently campaigned for harsh sentences in all cases of violence against women and children. It has particularly focused on cases where women are killed by their intimate partners. The killing of Reeva Steenkamp at the hands of her lover has once more brought this matter sharply into focus," Women's League head of communications Edna Molewa said.
The subtext is, of course, that this was a crime of passion.
In the event of the state appealing the conviction, it is unlikely that the Supreme Court of Appeal (SCA) would find differently on the issue of the circumstances leading to Steenkamp's death. The state will look to the SCA to contemplate the legal aspects such as issue of dolus eventualis. Considering that Judge Masipa herself has suggested that Pistorius intended to kill the person behind the door - whoever they might have been - will probably give impetus to the appeal.
But if there was a blazing row between Pistorius and Steenkamp that night, for whatever reason, only the man now sitting at the Kgosi Mampuru prison knows this. From his evidence and what members of his family, his lawyers and his counsellors have said, Pistorius's consistent version is that he believed there was an intruder in the toilet and he feels deep remorse for shooting Steenkamp by mistake.
If it was not a mistake, it means his remorse is contrived. Therefore the guilt and remorse Judge Masipa took into account when she decided his sentence would not be genuine - or at least for different reasons from the truth.
Will we ever know the full truth about Reeva Steenkamp's killing?
Not from Pistorius. Judge Masipa found him to be a "very poor witness" and the inconsistencies in his evidence point to him deliberately bending the facts. His family is so intent on blaming everybody else for his actions that they are likely to mollycoddle and indulge him for the rest of his life.
After the sentencing on Tuesday, his uncle Arnold Pistorius attacked the prosecution, saying they wanted to "inflict as much damage as possible" and had tried everything to make the premeditated murder charge stick. In television interviews on the eve of the sentencing, Pistorius's siblings Carl and Aimee condemned the media for "negative media, twisted truths and untruths" around the case. It is in keeping with the defence throughout the trial and sentencing procedure: Oscar is the tragic victim, he should not be held accountable for his actions.
When he is released from prison in a few months, Pistorius will not simply be able to go back to life as normal. As a professional athlete, he will feel the sting of not being able to compete in the 2016 Paralympics and he might be restricted from travelling to some countries due to his status as a convicted killer. He feels shunned by society and will probably continue to feel that way. He will live in fear that his next bad act will also be caught out.
Perhaps he will write the book he is rumoured to be planning. But it is unlikely that he will give a different version of events to what he has said so far. If anything, it will be a more polished, finessed account that will continue to project him as the consummate victim.
For as long as he continues to do that, it will be Reeva, truth and justice that are sacrificed on the altar of the once great, now jailed Oscar Pistorius.
This column first appeared on Daily Maverick.