Judge Mapisa found Oscar Pistorius guilty of culpable homicide last month. On Tuesday, she sentenced him to five years in prison. It is a spectacular fall for the athlete — from Olympic stardom to a jail cell that will not be that much bigger than the bathroom in which he killed Reeva Steenkamp. The prosecution’s case was that Pistorius committed a murder. Pistorius’s defence team would have had us believe that a charitable, sensitive, timid man was subjected to an unfortunate accident that caused him to lose everything — what they called, in a peculiar elision of Steenkamp, his “love relationship”, his reputation, his career.
In her assured, considered and controversial judgement, Judge Thokozile Masipa sidestepped the melodrama of the case and gave a salutary lesson in complexity, objectivity and compassion. “South Africa has a constitution which applies to everyone and protects everyone including those who transgress,” she said. While Pistorius has been read by many in the media — particularly the foreign media — as metonymic for South Africa’s triumph over the crippling legacy of apartheid, the judge sought out complexity and depth for a nuanced reading of Pistorius as a devastated man who had, through his own gross negligence, taken the life of a vivacious young woman he purports to have loved. “One witness after another placing an over-emphasis on the accused’s vulnerability — yes, he is vulnerable; he also has excellent coping skills,” Mapisa stated in her ruling. “Thanks to his mother, he rarely saw himself as disabled ... He went on to compete against able-bodied athletes — that image remains obscured in the background. In my judgement, the correct thing would be to balance the two.”
Masipa emphasised the importance — indeed the centrality — of mercy in South Africa’s legal system. She invoked the constitution, the nation’s central and defining document, which is focused on human rights and restorative justice rather than retribution and vengeance; on a measured compassion in the meting out of justice to those who commit crimes.
The judgement was very fine, but it has not laid Steenkamp’s ghost to rest. The killing was not, in the end, deemed to be a case of femicide. But this is a crime in which South Africa has frequently proved itself to be world champion, so it is difficult not to refract both the killing and the sentence through the tragic lens of domestic violence. South Africa is a patriarchal society, too often blighted by violently misogynistic behaviour. Despite the existence of laws that guarantee the rights of women (and their children) — including their right to life — these are violated on a daily basis. So how is one to read this five-year sentence? How to hear the “mercy” in that sentence rather than a judicial slap on the wrist for a man who acted with such astonishing negligence that his girlfriend ended up dead on the bathroom floor?
Pistorius’s defence was that he was beset by an “understandable” and “overwhelming” fear of crime — a fear so great that it rendered him incapable of even the most basic thought and consideration. The judge cited two cases in her judgement, both of them of men who shot at what they thought were intruders. In both cases an innocent person, a family member, ended up dead. The judge used the sentencing in both of these cases as measures for the sentence she gave Pistorius.
What remained unexamined is the acceptance of this overwhelmingly violent fight-response to a perceived threat as a life-threatening social pattern. For there are many more such cases of such violent, domestic, accidental killings. No one will deny that there are very high levels of violent crime in South Africa; however, the irrational fear and the violence that so often accompanies it was not addressed by the judgement and the sentence.
There is a pattern in these “accidental” domestic shootings that requires consideration. The judge accepted Pistorius’s claim that the shooting was an accident, but the origin of this “accident” is important. A society that lauds men who act before they think, that accepts and forgives men who act before they think, is at odds with the carefully constructed edifice that is the rule of law — in South Africa’s case, a law based on one of the most progressive constitutions in the world. The trial, the judgement and the sentence reveal, in this explosively familial setting, the gulf between the law — the superego, if you will, of the society we live in, and its unreformed id that is governed by the unexamined impulses of fear and aggression. It is this gulf that creates the volcanic faultline that erupts with alarming frequency and destroys so many lives each year.
Masipa’s judgement was humane and expansive, but it provides little comfort for observers when bestowed on a person who showed none of this thoughtful mercy. The arguments for rehabilitation of offenders and reintegration into society are important, but how this will be achieved is hard to imagine in a man who never took full responsibility for his actions. The claim that this was an accident persuaded the judge — as much as the failure of the state to prove intent to kill — but if one places a glass on the edge of the table it will fall. It will smash. It might well be an accident, but it was not that hard to predict. Much the same, I would argue, that firing four bullets into a tiny bathroom cubicle would result in the fatal wounding of the person on the other side of that door.
This trial leaves one with a feeling of unease. As Alex Eliseeve, a South African journalist who covered the case from the outset, tweeted: “The sentence fits the conviction. Question is, does the conviction fit the crime.” The prosecution has not yet decided if the state will appeal — it has two weeks to decide — but both conviction and sentence have stirred an enormous amount of emotion.
The persistent claims by Pistorius’s defence that he has lost everything were hard to stomach. But the social narrative is written by the living, not the dead. And it is Pistorius that we all have to live with, not Steenkamp. The gift that Judge Masipa gave us was a way of looking at this deeply flawed man with mercy — not a principle that has guided South Africa through most of its history. It certainly is a principle — infused with the notions of forgiveness that guided South Africa’s Truth and Reconciliation Commission — that is in short supply. In the Pandora’s box of ills that this trial opened, it may be the only hope we have.
— Guardian News & Media Ltd
Margie Orford is a novelist, president of PEN South Africa and the patron of Rape Crisis.
