by Howard | October 21, 2014 1:03 pm
Some years ago, in my final year of Law School, my partner and I were asked to defend a young man who had been charged with the murder, during a drunken brawl on Christmas Day. Both were 18.
The story went as follows. The defendant had just returned to Soweto from a day out with his friends and whilst still at the train station noticed the victim “pulling and bullying” a young woman who in his mind did not want to be bullied. He ran to her defense, a fight ensued and when he fell to the ground, he found a screwdriver, which he picked up and with which he stabbed and killed the victim. It was clear that the charge of murder was not the correct one, the defendant not having an intention to kill.
We met with the prosecutor, managed to reduce the charge to culpable homicide, and negotiated a sentence that included many hours of community service, which would allow him to complete his schooling and hopefully uplift him, rather than condemn him to a life of crime. The overworked Prosecutor, happy to reduce his already unmanageable load, readily agreed, and we felt buoyed by the fact that we had not only “won” our case but had done some good in the world.
And then, a few weeks later, the Social Worker’s Report (that we had been requesting, but had never arrived), did. And although the case was now closed, I read it. According to the report, our defendant in fact knew the woman prior to the incident and as it would happen seemed to rather like her in a romantic sort of way. The victim too, it would turn out, had his eye on her and she seemed to like him somewhat more than the defendant.
And with the stroke of a pen, perspective changed and suddenly we didn’t feel so good. Our supervisor explained that that this is what it meant to uphold the rule of law. Everyone including the prosecutor needed to best do his duty in order for the greater legal system to flourish. Any law student knows this in theory, but when faced with the real consequence it can be uncomfortable and very disillusioning.
Much has been said as to whether the Oscar verdict is correct in law or not and I am certainly not qualified enough to comment. My problem is that if it indeed is the right verdict, why does it feel so wrong? My daughter’s play therapist (yes, they all have one), has told her many times that if something feels wrong, it most probably is, and there is little doubt, that aside from the Oscar team, there is a real sense of uneasiness about the whole finding. We are also told that feelings and emotions are not meant to play a role and the judge can only look at that presented before them – for that reason the Rules of Evidence are strictly controlled and applied – but given the fact that the rule of law needs to take the family of the victim into account, so revenge and vigilantism don’t become a frustrated last resort, it seems that those very feelings in fact do matter.
His sentencing this morning of 5 years, 3 of which are suspended means that he will be eligible for parole in 10 months. To put it in perspective, that is only 3 months longer than the trial. It seems to be rather tame given the fact that he knowingly shot someone through the bathroom door with hollow tipped bullets instead of exiting the house and calling for help as a reasonable person in his position would have done.
The fact that he didn’t know it was his girlfriend is no longer the subject of debate as it is clear that the Judge felt that he didn’t. What was interesting is that for weeks after the event, every time either my wife or I went to the bathroom in the middle of the night we would look to see if we could tell that the other was in the bed. Mostly we could, but I accept that this would not necessarily be relevant to the court or anyone else for that matter. The point is not whether we could or couldn’t, it was about the fact that in our hearts we didn’t believe his version of the events. And I am not sure, aside from the Judge, who did.
What is clear is that thankfully the circus is over. Oscar goes to jail for 10 months and everyone goes back to wondering about the South African justice system. Maybe justice has been served, I am certainly not able to say, but hell, it still feels so wrong.
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