Reeva: A Mother's Story (23 page)

The deceased. I recoiled at every mention of the word. I mean, that was my daughter. Reeva.

I thought the formal introduction to the ruling was going to go on forever, but suddenly the judge indicated she had chiselled days and days of testimony from multiple witnesses aside. She said that issues about whether or not the police contaminated the scene, about the length of an extension cord that had gone missing from the bedroom and the authenticity of photographs of items depicted in various exhibits had paled in significance when one has regard to the rest of the evidence. She reiterated the fact that there were no eye witnesses, but lots of witnesses who testified about what they had heard: gunshots, screams, a woman in distress. She said these had to be discussed together because they were inextricably linked.

And then my heart dropped. Did I detect the first sign that the state’s case was found wanting? I could hardly believe it when I heard her pronounce that the evidence of Burger and Johnson must be rejected in its entirety – not because they colluded as the defence argued, but because they were genuinely mistaken owing to the distance. This was devastating. It was Michelle Burger who was so certain she had heard the ‘blood-curdling screams’. The judge continued also to dismiss the defence claims that Oscar sounded like a woman when he screamed, decreeing that the identification and interpretation of sounds is tricky when the witnesses have no model or prior experience to compare with. Not even former girlfriend Samantha Taylor, she said, could claim to have heard the accused scream in a life-threatening situation.

I was getting some measure of how the judge filtered evidence for facts that would stick in her opinion. Each piece of evidence had been poured through the mesh of her assessor’s sieve. From the outset I understood she could only assess the facts in front of her and she had to go by the letter of the law. We all knew what we believed happened that night, and I just hoped she had enough evidence in front of her. Judge Masipa continued by outlining Reeva’s horrendous injuries and the view that bullet damage had rendered her immediately unconscious and unable to scream. The screaming, she proposed, must have come from Oscar. I didn’t understand where she had evidence that the four shots were fired in quick succession. If they were shot in rapid succession, how did one miss her? Others were clearly filled with similar dismay. Little did I know that the reporters in the benches behind, interpreting the ruling for their media houses with minute-by-minute updates, were filling Twitter feeds with lines such as: ‘She is swerving verdict in favour of OP.’

I concentrated hard. The judge had after all referred to the ‘difficult terrain that this court had to traverse to arrive at its conclusion’. She referred to evidence in the form of technology, such as phone records, being ‘more reliable than human perception and memory’ and then – another blow – asserted that the state had done nothing to undermine the timeline presented by the defence.

What that meant was that she had ruled that the gunshots were fired at 3.12 to 3.14 a.m. and that the noises heard at 3.17 a.m. – which the state alleged were the gunshots – were in fact the bangs of the cricket bat on the wooden toilet door. On that bombshell, the court adjourned for a break.

I glanced towards Oscar. He had slumped forward, alone in his thoughts. No one tried to talk to him. All around me people were shaking their heads, confused. Everything she had been saying suggested she was leaning towards Oscar Pistorius’s version of events.

Court resumed. The momentum was definitely going in Oscar’s direction. About the defence witnesses who heard a man crying, Judge Masipa said this had the ‘ring of truth’. She said Reeva could have had her mobile phone in the toilet for a number of reasons, for example to light the way to the toilet because the light in the toilet cubicle didn’t work, but to pick a reason was ‘to delve into the realm of speculation’. I was absolutely stunned when she dismissed the WhatsApp messages as proving nothing, declaring that ‘normal relationships are dynamic and unpredictable sometimes’. Really? Reeva had said he picked on her ‘incessantly’. Do normal relationships allow for a partner to be scared of the other? Scared of the way they snap? In those SMSs he was so very critical of her and derogatory, and it had actually hurt me to realise that he could have treated her like that. At the time of cross-examination, people asked me why Gerrie Nel had not put Oscar on the spot: what happens when you snap? Did you reply to this message? Why not? It was too late to regret missed opportunities. Instead the judge accepted the defence’s argument that the majority of messages were loving – but you can’t say this was a dreamy, blissful relationship. They had only known each other for three months and we all knew it had been problematic or ‘intense’, as several of her friends euphemistically remarked on TV documentaries.

The judge went on. She determined the stomach content evidence did not ‘help the state case’ and noted that a security guard, passing the house at 2.20 a.m., heard no argument. None of this was sitting well with me. My heart dropped.

Her report then switched to an assessment of the defence case. It was an accident. He never intended to kill anyone. He did not purposefully fire into the door. He did fire into the door but did not do so deliberately. He did not aim at the door but the gun was pointed at the door. He did not mean to pull the trigger but did so in fright. He did not have time to think before firing. He believed someone was coming out of the cubicle to attack him. By this stage they were just words going around my head – Oscar’s evasive words, contradictory words, desperate words – but I sat up when I heard the judge emphasise one line of her findings. She said that his explanation that ‘if he had wanted to kill the intruder, he would have fired higher’ was ‘inconsistent with someone who shot without thinking’.

The court stood up for another break. It was up, down, up, down, a cliffhanger at every adjournment. But was the momentum swinging back to the state’s line? It felt like the judge was playing poker. Every time she seemed to going one direction, she’d play another card with a ‘however’ and move along another route.

Back for the next instalment, she quickly established that psychiatric assessment showed the accused
did
have criminal capacity and moreover that he could not rely on putative self-defence because he had claimed he never intended to shoot anyone. However – and here was another handbrake turn of a ‘however’ – she said the intention to shoot did not mean an intention to kill. Again she stressed the onus of proof was on the state to establish that beyond reasonable doubt. Everyone nodded vigorously at her description of Oscar as ‘a very poor witness’… ‘evasive’… ‘more worried about the impact his answers might have than the questions asked’… But there was a ripple of collective surprise when she said: ‘The conclusion, that because an accused is untruthful he is therefore probably guilty, must be guided against, as a false statement does not always justify the most extreme conclusion. In the present case the deceased was killed under very peculiar circumstances…’

And then we heard that these
very
peculiar circumstances, which did not make sense, would unfortunately remain a matter of conjecture. I was lost. Everyone around us was aghast. After six months of attending court we hadn’t learnt any more. With that list of peculiar circumstances, I realised that this entire ordeal of a trial had not come close to providing answers to the many unanswered questions, namely – in the judge’s own language – why the accused did not ascertain from the deceased when he heard the window open whether she too had heard anything; why he did not ascertain whether the deceased had heard him since he did not get a response from the deceased before making his way to the bathroom; why the deceased, who was in the toilet and only a few metres away from the accused, did not communicate with the accused, or phone the police as requested by the accused. It made no sense that she did not hear him scream ‘get out’ at the top of his voice when he ordered the intruders to get out. And why would he fire not one, but four shots, before running back to the bedroom to try to find Reeva?

It was only 11.07 on the first morning of the scheduled two days when Judge Masipa said: ‘The timelines as set out in the chronology of events tip the scales in favour of the accused’s version in general. Viewed in its totality, the evidence failed to establish that the accused had the requisite intention to kill the deceased, let alone with premeditation. I am here talking about direct intention. The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder.
There are just not enough facts to support such a finding
.’

And on that dramatic note, the court adjourned for another break.

There was a muted response in the courtroom. It was always considered more likely that he would be found guilty on a lesser count of murder, rather than premeditated murder. Was this the way the judge was leaning? Oscar and Aimee were huddled with their legal team, looking fraught and depressed.

The next session brought up lots of legal definitions such as
aberratio ictus
(accidental harm), whereby A shoots B but instead hits C, and
error in persona
, i.e., the shot was intended for the person behind the door, but that person turned out to be different. I lost track of the definitions and illustrations. I was waiting for the conclusion, but my heart sunk when I heard her say of his alleged fear for his life and that of Reeva: ‘There is nothing in the evidence to suggest that this belief was not honestly entertained.’

Then the thunderbolt that caused gasps all around me. She said the evidence did not support the state’s case that this was
dolus eventualis
(i.e., that he must have known he was likely to kill the person by firing) because he believed she was in the bedroom. She said his account of this has remained consistent since the night of the shooting. It was ‘highly improbable the accused would have made this up so quickly’. The question was: ‘Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.’

No? What! Lots of people shook their heads. No, in terms of Reeva, perhaps. But yes in terms of someone, surely – the alleged intruder of his own account?

Her voice intoned: ‘The accused therefore cannot be found guilty of murder
dolus eventualis
.’

I didn’t look towards Oscar but I later saw the television images of him heaving violently with relief, tears streaming down his face.

Another break, this time for lunch, but we had no appetite for our picnic of crackers. It wasn’t so much disbelief in our minds, it was disbelief all around. Whispers grew louder that the judge had misapplied the third question in the test for
dolus
eventualis
. I’m not familiar with the ins and outs of law, but we and all our supporters started receiving messages suggesting there’d been an error and perhaps the judge would correct it after the break. Law students in the public gallery were passionate about the ‘misinterpretation of law’. But the question should have been ‘Could he have foreseen there was a living person behind that door and could he have foreseen that if he fired four bullets someone could be killed?’ People were talking about how the state can appeal legal errors and speculating that the judge might correct herself after the break. Social media, the radio, live TV, every form of debate was red-hot with outrage. Upstairs in our room, tears flowed. Gerrie Nel looked downcast. The judge could still find Oscar guilty of culpable homicide, a serious charge, but people feared there was a real possibility that he would now be acquitted as she seemed to have accepted his story that he genuinely feared for his life and was acting in self-defence.

I started thinking of her bag that was packed as if ready to leave. That she was shot wearing a sleeveless black top and shorts, clothes for a summer’s day, not her night clothes. That she had brought him a wrapped Valentine’s Day gift and card and he had nothing for her – she who set such store in occasions. He would have seen her tweet that day –
What do you have up your sleeve for your love tomorrow??? #getexcited #ValentinesDay
– yet he would disappoint her.

And how could anyone believe that he could not have foreseen that his actions, in shooting four Black Talon bullets into a small confined space, could result in the death of any person behind the door? The ANCWL ladies were angry, carrying placards outside the High Court saying, ‘If you kill a woman, you are killing a nation’.

The bottom line we had to accept was that the judge had ruled out a murder conviction. I just could not believe that she found credibility in his version of events when none of us – and no one in the world, it seemed – believed his story. She’d said the state had failed to make its case against him and the evidence they’d presented was purely circumstantial. Maybe she just didn’t have enough evidence in front of her.

After lunch we filed wearily down the dimly lit stairs and took our places again in court. Gerrie Nel entered and left again with Barry Roux. We were told they’d been called to the judge’s chambers. People wondered aloud whether she was about to correct her perceived error in testing
dolus eventualis
. At 1.13 p.m., Judge Masipa re-appeared and resumed reading her report, which went on to consider the question of culpable homicide and negligence. There was yet more sifting through argument and precedent and circumstances and tests based on ‘a reasonable person’, but I was no longer interested in the minutiae. I sat up when she said ‘the explanation of the conduct of the accused is just that: an explanation. It does not excuse the conduct of the accused’. And again when she concluded she was of the view that ‘the accused acted too hastily and used excessive force. In the circumstances,’ she said, ‘it is clear that his conduct was negligent.’

That was it for the day. That was it for our desire to see justice for Reeva. We returned to the guest house devastated. There was obviously so much more to the story and it had not been uncovered. I felt very, very disappointed. Heartsore, actually, and exhausted. We had come through all of this and we had not got the truth. I felt let down by the justice system, but most of all sad, because I wanted the right thing for Reeva. She died a horrible, painful, terrible death, and she suffered. Her boyfriend shot four times through the door. One of the bullets struck her in the upper left arm which meant she had been facing the door, probably pleading with him, not sitting on the toilet. And I couldn’t believe, given the circumstances, that they could not effectively discredit his story of a tragic accident. I thought the state of a relationship was the first and the most crucial thing considered in deaths when only two people were at the scene, and one shot the other? But that’s the problem: only the two of them were there that night.