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
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:
