South Africa is a divided society with a vile history of injustice. Injustice runs along very bright lines: black versus white, women versus men, the rich versus the poor, government versus the people. For a long time, there wasn’t much debate about whom the law favoured: white, rich males, usually wielding the political power of government.
Since democracy, South Africa has been locked in a different kind of struggle. While the bright-lines have disappeared (at least in law), the people are still attuned to them. Our biggest fear as South Africans is that the Beast of Apartheid may not be dead; it may be living in the shadows of the rainbow nation.
Oscar Pistorius’ murder trial was bound to rub us all the wrong way. In many ways, Pistorius is a poster child for the old South Africa: a rich (spoilt) white male who wields unearned privilege and believes that the country owes him a favour. Oscar splits South African society in all ways possible.
To some whites, Pistorius is a victim of rampant black-on-white crime. His fear of the ubiquitous black criminal forced him to shoot the love of his life in cold blood. To most blacks, he represents gun-wielding whites who see a criminal in every black person.
To the poor, Pistorius represents the rich who buy and sell justice—jumping queues with expedited trials while poor folk rot in jail, even before they have had a day in court.
To some women, Pistorius is a domestic-abuser-turned-“victim”. His case was beyond pale, just like the millions of other domestic abusers who bash women and then drench the public in tears begging for forgiveness.
Judge Masipa convicted Pistorius on one count of culpable homicide (manslaughter) and on one gun-related charge. She sentenced him to an effective five years in prison, although he will be entitled to apply for parole in 10 months. Masipa has been publicly vilified for both her conviction and sentence. Billionaire Donald Trump – that true beacon of intelligence – commented on the sentence: “Oscar Pistorius will likely only serve 10 months for the cold blooded murder of his girlfriend. Another [O.J. Simpson] travesty. The judge is a moron!”
Pistorius’ case was the hardest possible judicial assignment for any judge on the post-apartheid bench. Justice meant, ultimately, whatever one’s ideology and sense of history demanded. Masipa’s verdict and sentence, whichever direction she decided, were about more than justice for Reeva Steenkamp; she had to comment on the state of the Republic.
After 16 months of a grueling trial, how did Judge Masipa do? To answer this question, we must take a detour to a similarly difficult time in South African history: 1990.
In 1990, after centuries of brutal violence and wrenching oppression, South Africans were about to build a new country. All that the country had as a point of reference was a very recent history of repression, brutality and a biased, rotting judiciary.
The biggest question, then, was justice for apartheid victims. What would justice look like for those whose families were torn apart, for those who lost life and limb fighting for freedom? Mandela and his comrades knew that the problem of justice needed a cunning long-term solution. They crafted one: a constitution quite like no other!
The aspiration for the crafters of the Constitution, as Mandela explained later, was to ensure that, “Never, never and never again shall it be that [this] beautiful land will again experience the oppression of one by another and suffer the indignity of being the skunk of the world.”
The Constitution declared that its purpose was to ‘Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.’ (Preamble) The new South Africa would be founded on the values of ‘Human dignity, the achievement of equality and the advancement of human rights and freedoms… Supremacy of the constitution and the rule of law.’ (§ 1)
The Constitution entrenches in our society certain inalienable rights. Everyone – including an accused or convicted criminal like Pistorius – is equal before the law and entitled to have his or her dignity respected and protected. (§ 9 and 10)
Most of all, the Constitution is ‘the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’ (§ 2) To this end, ‘The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.’ (§ 165)
Judge President Mlambo, who is perhaps responsible for assigning Judge Masipa to the Pistorius trial, noted the broader justice questions posed by the case. He said:
‘[In] a country like ours where democracy is still somewhat young and the perceptions that continue to persist in the larger section of South African society, particularly those who are poor and who have found it difficult to access the justice system…. I have taken judicial notice of the fact that part of the perception that I allude to is the fact that the justice system is still perceived as treating the rich and famous with kid [gloves] whilst being harsh on the poor and vulnerable.’
The challenge facing Judge Masipa was heightened in two ways. First, the facts were hardly in dispute. It was not in dispute that Pistorius shot and killed Steenkamp. The mixed question of fact and law was about Pistorius’ intention when he shot Steenkamp. Pistorius’ guilt or innocence hinged only on his state of mind. The difficulty is: only Pistorius knows his state of mind when he committed the offence—a bitter pill for the public to swallow.
Second, Judge Masipa had to answer a bigger question about the meaning of justice in post-apartheid South Africa. This question is fashioned along the bright-lines I outline above and it is subject to intense public opinion. She was being asked whether the law still favours rich white males over the poor, women and blacks?
She handled the task quite remarkably. She and the judiciary saw the Pistorius trial as an opportunity to teach the nation and the world about South Africa’s constitutional compact. The lesson: In South Africans, justice means what the Constitution says it does. The Constitution says justice means treating the accused with dignity, fairness and legal restraint whilst punishing him or her for proven facts. Many will ask: what does justice mean for Reeva Steenkamp?
John Rawls wrote in A Theory of Justice that, “The main idea [of justice] is that society is rightly ordered, and therefore just, when its major institutions are arranged so as to achieve the greatest net balance of satisfaction summed over all the individuals belonging to it.” In South Africa, we have created such institutions through the Constitution.
Institutionally, the State has formidable public resources (money, police, specialists etc.) to discover facts. The State employs gifted lawyers to place those facts lucidly and forcefully before a judge. The accused is punished for those facts proven by the State beyond a reasonable doubt. The judge must ignore public opinion and personal idiosyncrasies in order to be the arbiter of fact, ‘without fear, favour or prejudice.’ For the victim, justice means punishing the accused for wrongs in accordance with institutions of law. Justice is the rule of law.
The punishment must be preponderant to the nature of the crime, the offender and the interests of society. According to Professor Snyman Criminal Law, ‘the court [must] weigh the accused’s personal circumstances against the nature of the crime and the interests of society. The [accused’s] personal circumstances constitute mitigating circumstances, whereas the nature of the crime and the interests of society amount to aggravating circumstances.’
These were the principle guiding Judge Masipa’s decision, and she remained true to them. Despite considerable public opinion, Masipa did what the Constitution demanded of her. We could all speculate about how Oscar committed a different crime or how he deserved a harsher sentence. Speculating is the easy part. Adhering to a binding social contract – the Constitution – is much, much harder!
John Rawls explains that: ‘From the standpoint of the theory of justice, the most important natural duty is that to support and to further just institutions. This duty has two parts: first, we are to comply with and to do our share in just institutions when they exist and apply to us; and second, we are to assist in the establishment of just arrangements when they do not exist […].’
All of us are a single stupid decision away from a jail cell. Should we ever make such a stupid decision, we all want the justice of fairness and restraint shown by the court in the Pistorius trial.
The trial highlights some worrying trends about wealth and justice in South Africa. The rich and famous can afford the most expensive legal counsel, which improves their experience in the justice system. This is an important issue. We should all support Chief Justice Mogoeng’s efforts to promote access to justice for everyone by bridging the gap for indigent accused. However, these are questions of policy and they should be kept out of the courtroom!
Some people remark that ‘South Africa will never see another Nelson Mandela.’ People like Judge Masipa, and painful events like Reeva Steenkamp’s killing, remind us why we do not need another Mandela. As a country, we will survive through our commitment to values of dignity and human rights. Even if those values also work, quite uncomfortably, for the benefit of criminals like Oscar Pistorius.