Thursday, December 3, 2015

Law, and justice in South Africa: Jacqueline Rose on Oscar Pistorius and fantasies of omnipotence

... Judge, victim, perpetrator: the lines of the case couldn’t be more clearly drawn. It was never in question that Pistorius had fired the four shots that killed Steenkamp. He had.

Oscar Pistorius guilty of murder as judge overturns previous conviction

In Masipa’s account the question was entirely “subjective”. What was going on inside the mind of Pistorius when he shot through the bathroom door? Everything hung on that question. Did he know he was shooting Steenkamp? Or did he believe it was an intruder, as he claimed more or less from the moment it happened, including to the friends and the police who were the first at the scene of the crime?

And if we believe him, then did he know he might kill the person on the other side of the door and shoot anyway? In Masipa’s words, “Did the accused foresee the possibility of the resultant death and yet persisted in his deed reckless whether death ensued or not?”
If he did, he would be guilty of what South African law calls dolus eventualis, a category of criminal intent that falls short of premeditation but which still implies murder because the possibility of death is foreseen.

The lesser charge of culpable homicide, killing through negligence, of which Pistorius was found guilty, stands only if we agree it can’t be proved that Pistorius knew his bullets might kill. Masipa’s dismissal of the charge of dolus eventualis is at the heart of the legal disputes around her verdict and was the basis for the current appeal.

Racial angst: I happened to be in Cape Town a week after the killing of Steenkamp. At the time I was reading A Bantu in My Bathroom, a book of essays by Eusebius McKaiser, a South African political and social theorist and radio talk show host.
He is known for being provocative and likes to challenge South Africans to confront their darkest thoughts. (His collection is subtitled Debating Race, Sexuality and Other Uncomfortable South African Topics.)

In 2012, 18 years after the end of apartheid, he was looking for a room to rent and found an advertisement from a woman willing to share her house but only, the ad stipulated, with a white person.

On the phone, McKaiser got her almost to the point of sealing the deal before announcing that he wasn’t white (she hung up when he suggested her choice might be racist). When he related the incident to the audience of his weekly radio programme, Politics and Morality on Talk Radio 702, two responses predominated.

Either the listeners sided with the owner of the house (her property, her preference, no different from “only non-smokers need apply”), or they made a more subtle but disquieting distinction: if the room was in a cottage in her backyard, the choice would be racist, but she clearly had the right to share her house, or not, with whomever she pleased.

“Reasonable” as the second preference might seem, McKaiser concedes in his essay, it is still “morally odious”, still “the product of our racist past”. “This viewpoint,” he elaborates, is an acknowledgment (indeed, an expression) of a deep racial angst.

Why else would you be fine with Sipho (the name McKaiser gives the fictional black tenant) sleeping in the flat outside but heaven forbid that you should wake up in the morning and the first thing you see on your way to the bathroom is the heart attack-inducing spectacle of Sipho smiling at you, a horror that just might elicit a scream of apartheid proportions: “Help! There is a Bantu in my bathroom!”

“Not one listener,” McKaiser writes, “grappled with how it is that 18 years after our democratic journey … racialism’s reach and endurance inside their homes and hearts dare not be spoken about.” Not one avoided the cliché – indeed they all rehearsed it to perfection – that your private life is private and it is up to you what you do in your own home (a cliché whose potentially lethal consequences were of course long ago dismantled by feminism).

In failing to do so, they “betrayed dark secrets about themselves and our country”. In another essay McKaiser refers to the Coloureds of Cape Town – he himself is a Coloured – as “the dirty little secret” of the city: “Cape Town, you see, treats Coloured people like dirt.”
“The dirty secrets of both Jozi [Johannesburg] and Cape Town are a stain on both cities’ images, like mud on a kid’s new white pants.”

Chasing shadows: It soon became clear that a strange, racially charged and legally confused distinction would be at the heart of Pistorius’s trial. If the athlete didn’t fire the shots through the toilet door in the knowledge that Steenkamp was inside, then he believed he was shooting at an intruder – in which case the charge of premeditated murder wouldn’t hold up.

There was no doubt that the second possibility was seen – or rather would be presented by Barry Roux for the defence – as the lesser offence, and not just because the legal category of “putative private defence” (defending oneself against a presumed attacker, even if the presumption was wrong) could present the shooting as a legitimate response to fear.

What was largely unspoken was that in the second case we can be more or less certain that the person killed in the bathroom would be – could only be – imagined as black. “As the judge will not have failed to register,” the journalist John Carlin writes in Chase Your Shadow: The Trials of Oscar Pistorius, “if his story were true – and even if it were not – the faceless intruder of his imagination had to have had a black face, because the fact was that for white people crime mostly did have a black face.”

Margie Orford was one of the few to draw out the racist implications. “It is,” she wrote, “the threatening body, nameless and faceless, of an armed and dangerous black intruder … the contemporary version of the laager”; it is “nothing more than the reclaiming of the old white fear of the swart gevaar” – the black peril.

For Orford, there is something profoundly amiss – morally and perhaps legally – if this is Pistorius’s main defence. “If Pistorius was not shooting to kill the woman with whom he had just been sharing a bed,” she continues, “those four bullets indicate that there is still no middle ground. Because whoever Pistorius thought was behind that door, firing at such close range meant that when he finished there would be a body on that bathroom floor.”

A Bantu in the bathroom. Or to elaborate McKaiser’s point: in the white racist imagination, the only Bantu permitted in a white bathroom is a Bantu who is dead. Depending on how you look at it, the killing of Reeva Steenkamp was either a sex crime or a race crime.

If Orford’s reasoning is correct, it also means that the charge of dolus eventualis – proceeding with a violent act in the knowledge that death might ensue – would stand and Pistorius would be guilty of murder.

In fact, Masipa’s dismissal of the charge hangs on a distinction she herself is not quite able to make: “How,” she asks in her judgment, “could the accused reasonably have foreseen that the shots he fired would kill the deceased? 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.”

For me the issue here is not that she chooses to believe his claim that he thought Steenkamp was still in bed – as she rightly points out in law, the contrary can’t be proved. Rather it is the slippage between intruder and Steenkamp that is for me the giveaway: it is indeed clear that he couldn’t have foreseen that he might kill Steenkamp if “he thought she was in the bedroom at the time” but how can that also apply to “the person behind the door”, whoever it was, given that he was shooting at that door with a 9mm handgun?

According to Masipa, however, if he didn’t know he was killing Steenkamp then he wasn’t guilty of murder, regardless of who might have been in the bathroom. The Bantu slips syntactically under the bathroom door... read more: