Brenda Wardle's Blog
July 5, 2016
To Kill A Fragile Rose{ A Taste of Things To Come
During the funeral of King Henry VI, in Shakespeare’s Richard III, Act I, Scene II, Lady Anne confronted Gloucester, Henry’s killer: “Foul devil, for God’s sake hence, and trouble us not; For thou hast made the happy earth thy hell, Fill’d it with cursing cries and deep exclaims. If thou delight to view thy heinous deeds, Behold this pattern of thy butcheries. O! gentlemen; see, see! dead Henry’s wounds Open their congeal’d mouths and bleed afresh. Blush, blush, thou lump of foul deformity, For ’tis thy presence that exhales this blood From cold and empty veins, where no blood dwells: Thy deed, inhuman and unnatural, Provokes this deluge most unnatural. O God! which this blood mad’st, revenge his death; O earth! which this blood drink’st, revenge his death; Either heaven with lightning strike the murderer dead, Or earth, gape open wide, and eat him quick, As thou dost swallow up this good king’s blood, Which his hell-govern’d arm hath butchered!” The Ordeal of Bier is cruel reminder of the barbaric nature of capital punishment in the days of South Africa’s gallows.
INVOCATION To: Seshat: Ancient Egyptian goddess of wisdom, knowledge and writing
Seshat, she who scrivens, she who scribes, credited with inventing the art of writing itself. Mistress of the House of Books, Overseer of the Library in which scrolls of the most important works were preserved.
"Chief steward, my lord, you are greatest of the great, you are guide of all that which is not and which is. When you embark on the sea of truth, that you may go sailing upon it, then shall not the /////////// strip away your sail, then your ship shall not remain fast, then shall no misfortune happen to your mast then shall your spars not be broken, then shall you not be stranded - if you run fast aground, the waves shall not break upon you, then you shall not taste the impurities of the river, then you shall not behold the face of fear, the shy fish shall come to you, and you shall capture the fat birds. For you are the father of the orphan, the husband of the widow, the brother of the desolate, the garment of the motherless. Let me place your name in this land higher than all good laws: you guide without avarice, you great one free from meanness, who destroys deceit, who creates truthfulness. Throw the evil to the ground. I will speak hear me. Do justice, O you praised one, whom the praised ones praise. Remove my oppression: behold, I have a heavy weight to carry; behold, I am troubled of soul; examine me, I am in sorrow."
Extract from “The Eloquent Peasant”
Credit for the translation in the appendix of To Kill A Fragile Rose
DEDICATION
This Book is dedicated to the memory of Sibongile Happiness Shange, a woman who had been convicted of murder based largely on circumstantial evidence. She denied ever having participated in the murder of her husband. She was a child bride having been forced into a marriage she neither sought nor desired. Her only sin, she argued to the very end, was an extramarital affair with the gardener of her husband, someone her age. She exhausted all her appeal remedies right up to the Constitutional Court. May her soul forever rest in peace!
AUTHOR’S PREFACE
A telephone call on the eve of the commencement of the criminal trial of Oscar Leonard Carl Pistorius, on March 2, 2014, from Christine Masentle Tsotetsi, requesting me to provide ongoing and possibly paid for legal analysis, was invariably set to change the course of my life forever. I had incorrectly assumed that Christine was still in the employ of eNCA, a local news channel, where I had first come to know her. She would regularly invite me to provide analysis on legal and labour matters for the television channel, where I would be interviewed by the likes of Jeremy Maggs, Gareth Edwards, Nikiwe Bikitsha and Iman Rappetti. I was acutely aware that the world’s media had descended upon South African soil, to observe first-hand and to beam across the globe, the coverage of a trial which was set to become the trial of the century.
South Africa was set for its own version of the OJ Simpson trial, with millions glued to their television screens around the globe. There were stark similarities between the two cases, which were tried worlds apart, one before a jury and the other before a judge and two assessors. It was the brutal nature of the attacks that tied them together; one on a wife and a mother, the other on a lover and daughter. The circumstantial nature of the evidence in both cases gave them too much in common and for all the wrong reasons.
The trial itself (for one could never say the same about the tragic killing of Reeva Steenkamp) could not have come at a better time in my career, as I was in the process of concluding an application for registration at the University of South Africa towards a Doctor of Laws Degree. My topic: The Presumption of Innocence and the Burden of Proof in Criminal Procedure in the South African Context. I had become fascinated with interrogating convictions which were based purely or largely on circumstantial evidence. The Oscar Pistorius trial therefore, would provide more than adequate material for my research. Unfortunately or perhaps even fortunately, one is not allowed to be controversial with legal research or to pose questions which tend to make certain suggestions, and therefore it was almost as a matter of certainty that I would embark on my Doctor of Laws degree whilst simultaneously writing a book, where I could satisfy both my need to learn and analyse the case.
Legal analysis and facilitation of training are my passions. I come alive when I stand before a group of delegates; be they judges, magistrates, trade union officials, shop-stewards, paralegals, executives from state-owned entities, or the private sector and engage in dissecting the subject matter I am dealing with. Being comfortable and confident speaking in public, together with experience in providing analysis for local radio and television stations, I felt more than equipped and qualified to agree to the task of providing analysis for Arise News Networks in London. The cherry on top was that it was freelance work and I could therefore take on other engagements during the trial.
That said, my first few live crossings proved to be a bit rough. I had never presented a live broadcast alone before. I suddenly had to learn a few skills which I never had to concern myself with during live or pre-recorded studio interviews in the past. What I am proud of is that I took it in my stride and once the first question was asked, I immediately came alive. It was a learning curve, what with learning how to hold the microphone and what to do with the lapel mic and earpiece but the little issues were not insurmountable and in no time, the technical aspects became second nature.
Seasoned journalist Deborah Patta would do live crossings for Arise News as well and at times, I would observe how she handled the myriad aspects of the broadcast. Learning by observing proved to be most valuable. The producers in London and I enjoyed a wonderful professional relationship and the response I would receive after each interview was overwhelming. It helped a great deal to build my confidence. Being the public trial that it was, and continues to be, there was always a crowd gathered on the pavement to listen to live interviews each evening. I decided then that I was going to write a book about the trial, given the interest both locally and around the globe in our law and wanting to clear up what I believed to be many incorrect interpretations and misunderstandings around the legalities involved.
It was only a matter of time before I was invited to be interviewed by other international broadcasters; Karin Giannone of BBC World, Jeremy Thompson on Sky News Prime Time, Paul Tilsley for Fox News, Reuters and as a regular guest of the SABC 24-hour channel with Dumile Mateza. I also frequented 24-hour news channel ANN7 as a studio guest, with Mike Appel; various radio stations in the United Kingdom including BBC Radio and locally for the SABC, YFM and Power FM, as well as an appearance on the Oscar Pistorius trial channel on DSTV. In fact, by the time I was interviewed by Jeremy Thompson, the book had already chosen its title and To Kill A Fragile Rose: The State’s Case Against Oscar Leonard Carl Pistorius, had long been born.
I had been passionate about writing since my days in high school. I wanted to enrol for a degree in journalism after matriculating but my father was adamant that he would not allow me to study journalism as I was too outspoken. It turns out that I didn’t make the grade for admission to Rhodes University, my institution of choice, and so, I was whisked off by my parents to work. At the same time, I enrolled for an Integrated Diploma in General Nursing and Midwifery, which I passed cum laude. As is often said, no education is ever without its intrinsic value. My nursing diploma included courses in Anatomy, Physiology, Psychology I, II and III, Sociology I, II and III. These courses became relevant when I was registered towards my Bachelor of Laws Degree in the study of Medical Law as well as Forensic Medicine. At Master of Laws level, I passed Forensic Medicine cum laude and I also have Advanced Constitutional Law and Fundamental Rights under my belt. That theoretical knowledge was invaluable, especially when trolling through the analysis of the segments on General Anxiety Disorder and the evidence of Dr Meryl Vorster, during the course of the murder trial. I also followed the evidence of Colonel van Rensburg, Professor Saayman and Captain Mangena with keen interest. My first qualification at UNISA was an Intermediary Degree Qualification in Criminal Justice Administration, so all the essential elements were in place to deliver an exceptional and thrilling interrogation of the trial in this non-fictional novel.
Over the years, the growing need for my analysis and input gave rise to a certain degree of hostility from dark and shadowy quarters. The forces made it clear that I was not going to overcome the odds, come clean publicly in Sunday World under the guidance of Fred Khumalo, go into court, face my demons, plead guilty, receive an eight-year imprisonment term for fraud, complete three law degrees in record time, battle the department of correctional services in court, succeed in securing my release, and then dare to come out to provide legal analysis and to be a player in a game which ought to be ruled by others. It was as though the other barriers were not enough, I am female, I dared and succeeded against the odds, I am from a racially-confused heritage with the blood of Griquas, Xhosas, Pondos and European Migrants coursing my veins. The hostility was to be expected but my passion and resolve made me see way beyond the impediments.
When I first hinted to an international journalist and author that I wanted to pen this manuscript, the response I received both shocked and patronised me. What is it, he asked, that I would add to literature, which would not be forthcoming from approximately five experienced journalists and authors who were already busy writing on the same subject? What is it that I thought I would be able to contribute to the wealth of information which their experience could not? Others asked me why I had the audacity to write about Oscar when I had my own skeletons. So I suppose in some cruel way, I was being told that I don’t quite fit the profile of a credible writer. Even though it was never said out loud, the insinuation was that I have a murky past in white collar crime, and therefore, without so much as a look at my analyses, without consideration for my knowledge, qualifications or experience, I was hurriedly written off.
Now, so many months after sentencing, I was alerted to a discussion on Facebook that had occurred during that period. A certain individual, based in Manchester in the UK apparently wanted to make sure that I had indeed been jailed for fraud. He was certain that my qualifications were false and that I had to be dealt with because I had “caused untold damage to the trial”. How, I still do not know. I told it exactly as I saw it. I am telling it exactly as I see it in this very book.
The daunting nature of writing a book began with some hiccups. Due to an evil twist of fate, the first draft disappeared into the black hole of my laptop, never to be seen again. I had to go back to square one and start afresh, doing so without a traditional publisher and without any financial support. The process was a bit of a nightmare but the book which I promised I would deliver, is now done and dusted.
So interrogate with me, walk with me through 286 Silverwoods Estate, as I attempt to piece together the broken pieces of the evidentiary puzzle. All I ask is that you keep an open mind. This book is not an attack on Oscar. It is not meant to be an attack on the person of Justice Thokozile Masipa. It is not in any way meant to embarrass the State, for what I argue are the inadequacies which might have sealed a verdict of murder dolus directus. I did not write this to impugn any witness but I do tell it exactly the way I see it.
This book is about the brutal murder of a young woman by her lover of three months. It is nothing more it is nothing less.
I have written this book precisely because I have a right to, in the words of Steve Biko, to “write what I like.”
INTRODUCTION
A wretched Saint Valentine’s Day
“For this was on seynt Volantynys day
Whan euery bryd comyth there to chese his make.”
Geoffrey Chaucer’s - Parlement of Foules1382
The murder of Reeva Steenkamp on February 14, 2013 gave credence to the brutal and savage origins of Saint Valentine’s Day, when saints were executed for their beliefs. The saints were martyred, an honour and status Reeva will never officially enjoy. In Part III of Christine de Pizan’s book, The Book of the City of Ladies, Christine is joined by Lady Justice to add finishing touches to the allegorical city, to usher in a queen. Lady Justice tells the author about female saints who had been praised for their martyrdom. Upon the completion of the city, Christine addresses all women, warning them to defend and to protect the city by following their queen, Virgin Mary. She warns them against slanderers and treacherous liars, who use nothing but “tricks and honeyed words” to steal their chastity and good names.
According to legend, Saint Valentine healed the daughter of his jailer, Asterius, during his imprisonment and before his execution on February 14, he wrote her a farewell letter signed, "Your Valentine".
The day before she was killed, Reeva gave Oscar a card, which she asked him not to read until Valentine’s Day.
Inside, she wrote:
“Roses are red, violets are blue”
“I think today is a good day to tell you that…’
“I love you.”
The Latin phrase Arx tarpeia Capitoli proxima (“the Tarpeian Rock is close to the Capitol”) has often been interpreted to mean that, “one's fall from grace can come swiftly”. The fall from grace of paralympian, Oscar Leonard Carl Pistorius came swiftly, following hot on the heels of him being charged by the State, with the murder of his girlfriend, Rebecca Steenkamp. The model and law graduate was killed in the early hours of a cruel, convoluted, cursed and bloody Valentine’s Day in 2013.
Oscar. He with the Latinised surname, meaning “”miller” or “Bakker” in the native Dutch of his forbears, an Afrikaner, a descendant of progenitor, Freidrich Heinrich Pistorius and Augusta Frederike Bernadina von Landsberg, stood accused of having murdered his girlfriend, who friends, family and people across the world had fondly come to know as Reeva. The State in its closing arguments, listed thirteen instances of incongruence and deceit; the proverbial baker’s dozen, unpalatable or not to Advocate Barry Roux SC, these were placed before the Court by Advocate Gerrie Nel, one of two prosecutors for the State.
Oscar is the son of Henreich Carl Wilhelm (Henke) Pistorius and the late Sheila Francis Bekker. His sporting motto stood in stark contradiction to the image of anxious, startled and vulnerable Oscar, who cries like a woman when he is severely distressed. His motto, like his career, and not unlike his crime, knew no limits. It is he who declared that:-
"You're not disabled by the disabilities you have; you are able by the disabilities you have".
The competing interests were delicate. Oscar had not mowed down (execution-style) an intruder who was invading his space. He was a hero for crying out loud, a beloved icon. Yet, news reports about his dark and temperamental side were never far off. Those South Africans loyal to the perception of people based on their status and standing in society, were dealt a heavy blow. There were after all, some who had blindly supported Hansie Cronje, believing at first that he was without blemish. The same dynamics were at play here and no matter how intrusive the media, no matter how brutal discourse was in the public domain at times, Oscar enjoyed privileges and treatment which were thrust upon him by virtue of status and standing on the world stage. No matter how horrific Reeva’s murder was, in some quarters Oscar somehow, had to be saved. Broadcasters sucked the last bit of nectar out of the Oscar flower. The world bore witness as time was devoted to multiple interviews with his siblings. We were forced to digest just how devastating the episode was for them.
The criminal conviction for murder caught those in denial of the crime and blind supporters by surprise. Justice Masipa in their eyes, was God’s gift to Oscar. The assessors who were appointed had happily gone along with a fatally flawed judgment but for some, the outrage ought to have been directed at the high, violent crime rates in South Africa and not at Oscar. The undertones were clear: had Oscar Pistorius pumped four bullets through the door at an intruder, then his actions would have been perfectly excusable.
Regardless, they argued, Oscar was not found guilty of Reeva’s murder but rather the murder of whoever it was who was behind the door. We were informed that Kgosi Mampuru II prison, was now popularly referred to as Oscar Mampuru II. Oscar occupied the cell above that of late Black Consciousness leader, Steve Bantu Biko. No other person convicted of murder has ever been treated so glowingly, almost with applause. It is clear that Oscar’s privileges, not unlike those enjoyed by his forbears, were firmly in place. Visits to prison became popular after the release of political prisoners from Robben Island. Was this really the type of image Correctional Services wanted to convey to the world? This is the centre where the remains of 83 political prisoners are still to be exhumed. Of 1070 prisoners hanged for capital crimes, prior to the abolition of the death penalty, 97% were black.
While Oscar basked in the attention, Reeva remained silenced. She was accused of flirting with the husband of her friend. She was said to have slammed the window so hard that Oscar was startled. She also slammed the toilet door causing it to click and then to clank. She was accused of not having cried, she didn’t call the police as she was asked to, she didn’t respond to Oscar shouting because as per Oscar’s version, had Reeva come out of the toilet, he would not have fired the fatal shots. All the versions and defences in his versions, paint Reeva as a powerless, unthinking and silent lamb who would, in the face of such a brutal attack, not utter a single word.
Reeva was born in Cape Town with Irish, Afrikaner and possibly other roots, to parents Barry Steenkamp, a horse trainer, and his wife, June (née Marshall, previously Cowburn), originally from Blackburn, England. Reeva had two older siblings, Adam and Simone. The family later moved to Port Elizabeth. Reeva began modelling at age 14 and graduated in 2005 with a Bachelor of Laws (LLB) degree from the Nelson Mandela Metropolitan University.
Reeva’s death and murder was dealt with differently from others, by the media. South Africans had unfortunately, become accustomed to seeing the corpses of violated and brutalized women on television. In my opinion, Professor Saayman was correct to point out the dignity with which patients ought to be treated but it had to take this murder trial for those issues to be highlighted. The media had previously freely aired and printed gruesome images, with a trigger warning stating that the images might be disturbing to some. The disparities which still plague South African society became pronounced during and after the trial.
The one bench I did not desire to be seated on, was the bench of June and Barry Steenkamp. Whilst we were debating Oscar’s demeanour, whilst we left court on a high after other testimonies, there were people seated in court, for whom the trial was an open wound. They weren’t only sympathetic or empathetic; these were two people who were cruelly and directly affected by their daughter’s murder.
Behind Oscar sat his family. It could not have been easy for them either but we cannot even begin to compare the trauma of the two respective families. It was difficult for Oscar to look June and Barry Steenkamp in the eye. As someone who would arrive at court early, I would watch him very closely as he cordially greeted all the ladies of the African National Congress Women’s League even though they were there to support Reeva’s family. I saw Oscar’s humanity in that gesture. Oscar couldn’t have been a monster if he survived in normal society for this long, so I tried to focus on his positive attributes, despite his occasional brush with the law. I do believe that he too needs forgiveness and understanding and when he says the tragedy haunts him every day, one cannot dispute it.
But before the final chapter on the appeal at the Supreme Court of Appeal and the afterword which covers an comparative analysis with another case based on circumstantial evidence, are chapters which analyse every piece of evidence apportioning due weight to the differing arguments. The tapestry which is the timeline by the defence is interrogated and unraveled for it fails in so many respects. We take a brief historical look at the development of criminal law and punishment in South Africa and deliver the judgment, which in my view, ought to have been delivered.
The chapters which follow are explorative, interrogatory, riveting and thought-provoking. I piece together the facts, consider the nuances, analyse the evidence and propose the verdict which I feel should have been delivered, to you, the reader, for further analysis and thought.
Advocate Thuli Madonsela
' Very erudite and super informative.'
'To Kill A Fragile Rose: The State's Case Against Oscar Leonard Carl Pistorius
THIS is a brilliant AND highly informative legal-historical interrogation of the Pistorius case. IT IS chronicled elegantly, outlined meticulously and argued robustly. YET THE AUTHOR HANDLES THIS TRAGIC CASE WITH AMAZING SYMPATHY AND SENSITIVITY.
Professor Tinyiko Maluleke is Advisor to the Principal and Vice Chancellor at the University of Pretoria. Amongst others, he is an elected member of the Academy of Science for South Africa and a rated researcher by National Research Foundation. As well as having published many peer reviewed academic articles, Maluleke is a columnist for the Mail and Guardian and the Sunday Independant.
He is a member of the Boards of the Khulumani and the South African National Research Foundation.
A fresh, incisive, and insightful deconstruction of the State vs Oscar Pistorius. Brenda Wardle delves beyond the headlines to add new layers of legal, social, and political context to the sensational trial.
Gus Silber, Author
INVOCATION To: Seshat: Ancient Egyptian goddess of wisdom, knowledge and writing
Seshat, she who scrivens, she who scribes, credited with inventing the art of writing itself. Mistress of the House of Books, Overseer of the Library in which scrolls of the most important works were preserved.
"Chief steward, my lord, you are greatest of the great, you are guide of all that which is not and which is. When you embark on the sea of truth, that you may go sailing upon it, then shall not the /////////// strip away your sail, then your ship shall not remain fast, then shall no misfortune happen to your mast then shall your spars not be broken, then shall you not be stranded - if you run fast aground, the waves shall not break upon you, then you shall not taste the impurities of the river, then you shall not behold the face of fear, the shy fish shall come to you, and you shall capture the fat birds. For you are the father of the orphan, the husband of the widow, the brother of the desolate, the garment of the motherless. Let me place your name in this land higher than all good laws: you guide without avarice, you great one free from meanness, who destroys deceit, who creates truthfulness. Throw the evil to the ground. I will speak hear me. Do justice, O you praised one, whom the praised ones praise. Remove my oppression: behold, I have a heavy weight to carry; behold, I am troubled of soul; examine me, I am in sorrow."
Extract from “The Eloquent Peasant”
Credit for the translation in the appendix of To Kill A Fragile Rose
DEDICATION
This Book is dedicated to the memory of Sibongile Happiness Shange, a woman who had been convicted of murder based largely on circumstantial evidence. She denied ever having participated in the murder of her husband. She was a child bride having been forced into a marriage she neither sought nor desired. Her only sin, she argued to the very end, was an extramarital affair with the gardener of her husband, someone her age. She exhausted all her appeal remedies right up to the Constitutional Court. May her soul forever rest in peace!
AUTHOR’S PREFACE
A telephone call on the eve of the commencement of the criminal trial of Oscar Leonard Carl Pistorius, on March 2, 2014, from Christine Masentle Tsotetsi, requesting me to provide ongoing and possibly paid for legal analysis, was invariably set to change the course of my life forever. I had incorrectly assumed that Christine was still in the employ of eNCA, a local news channel, where I had first come to know her. She would regularly invite me to provide analysis on legal and labour matters for the television channel, where I would be interviewed by the likes of Jeremy Maggs, Gareth Edwards, Nikiwe Bikitsha and Iman Rappetti. I was acutely aware that the world’s media had descended upon South African soil, to observe first-hand and to beam across the globe, the coverage of a trial which was set to become the trial of the century.
South Africa was set for its own version of the OJ Simpson trial, with millions glued to their television screens around the globe. There were stark similarities between the two cases, which were tried worlds apart, one before a jury and the other before a judge and two assessors. It was the brutal nature of the attacks that tied them together; one on a wife and a mother, the other on a lover and daughter. The circumstantial nature of the evidence in both cases gave them too much in common and for all the wrong reasons.
The trial itself (for one could never say the same about the tragic killing of Reeva Steenkamp) could not have come at a better time in my career, as I was in the process of concluding an application for registration at the University of South Africa towards a Doctor of Laws Degree. My topic: The Presumption of Innocence and the Burden of Proof in Criminal Procedure in the South African Context. I had become fascinated with interrogating convictions which were based purely or largely on circumstantial evidence. The Oscar Pistorius trial therefore, would provide more than adequate material for my research. Unfortunately or perhaps even fortunately, one is not allowed to be controversial with legal research or to pose questions which tend to make certain suggestions, and therefore it was almost as a matter of certainty that I would embark on my Doctor of Laws degree whilst simultaneously writing a book, where I could satisfy both my need to learn and analyse the case.
Legal analysis and facilitation of training are my passions. I come alive when I stand before a group of delegates; be they judges, magistrates, trade union officials, shop-stewards, paralegals, executives from state-owned entities, or the private sector and engage in dissecting the subject matter I am dealing with. Being comfortable and confident speaking in public, together with experience in providing analysis for local radio and television stations, I felt more than equipped and qualified to agree to the task of providing analysis for Arise News Networks in London. The cherry on top was that it was freelance work and I could therefore take on other engagements during the trial.
That said, my first few live crossings proved to be a bit rough. I had never presented a live broadcast alone before. I suddenly had to learn a few skills which I never had to concern myself with during live or pre-recorded studio interviews in the past. What I am proud of is that I took it in my stride and once the first question was asked, I immediately came alive. It was a learning curve, what with learning how to hold the microphone and what to do with the lapel mic and earpiece but the little issues were not insurmountable and in no time, the technical aspects became second nature.
Seasoned journalist Deborah Patta would do live crossings for Arise News as well and at times, I would observe how she handled the myriad aspects of the broadcast. Learning by observing proved to be most valuable. The producers in London and I enjoyed a wonderful professional relationship and the response I would receive after each interview was overwhelming. It helped a great deal to build my confidence. Being the public trial that it was, and continues to be, there was always a crowd gathered on the pavement to listen to live interviews each evening. I decided then that I was going to write a book about the trial, given the interest both locally and around the globe in our law and wanting to clear up what I believed to be many incorrect interpretations and misunderstandings around the legalities involved.
It was only a matter of time before I was invited to be interviewed by other international broadcasters; Karin Giannone of BBC World, Jeremy Thompson on Sky News Prime Time, Paul Tilsley for Fox News, Reuters and as a regular guest of the SABC 24-hour channel with Dumile Mateza. I also frequented 24-hour news channel ANN7 as a studio guest, with Mike Appel; various radio stations in the United Kingdom including BBC Radio and locally for the SABC, YFM and Power FM, as well as an appearance on the Oscar Pistorius trial channel on DSTV. In fact, by the time I was interviewed by Jeremy Thompson, the book had already chosen its title and To Kill A Fragile Rose: The State’s Case Against Oscar Leonard Carl Pistorius, had long been born.
I had been passionate about writing since my days in high school. I wanted to enrol for a degree in journalism after matriculating but my father was adamant that he would not allow me to study journalism as I was too outspoken. It turns out that I didn’t make the grade for admission to Rhodes University, my institution of choice, and so, I was whisked off by my parents to work. At the same time, I enrolled for an Integrated Diploma in General Nursing and Midwifery, which I passed cum laude. As is often said, no education is ever without its intrinsic value. My nursing diploma included courses in Anatomy, Physiology, Psychology I, II and III, Sociology I, II and III. These courses became relevant when I was registered towards my Bachelor of Laws Degree in the study of Medical Law as well as Forensic Medicine. At Master of Laws level, I passed Forensic Medicine cum laude and I also have Advanced Constitutional Law and Fundamental Rights under my belt. That theoretical knowledge was invaluable, especially when trolling through the analysis of the segments on General Anxiety Disorder and the evidence of Dr Meryl Vorster, during the course of the murder trial. I also followed the evidence of Colonel van Rensburg, Professor Saayman and Captain Mangena with keen interest. My first qualification at UNISA was an Intermediary Degree Qualification in Criminal Justice Administration, so all the essential elements were in place to deliver an exceptional and thrilling interrogation of the trial in this non-fictional novel.
Over the years, the growing need for my analysis and input gave rise to a certain degree of hostility from dark and shadowy quarters. The forces made it clear that I was not going to overcome the odds, come clean publicly in Sunday World under the guidance of Fred Khumalo, go into court, face my demons, plead guilty, receive an eight-year imprisonment term for fraud, complete three law degrees in record time, battle the department of correctional services in court, succeed in securing my release, and then dare to come out to provide legal analysis and to be a player in a game which ought to be ruled by others. It was as though the other barriers were not enough, I am female, I dared and succeeded against the odds, I am from a racially-confused heritage with the blood of Griquas, Xhosas, Pondos and European Migrants coursing my veins. The hostility was to be expected but my passion and resolve made me see way beyond the impediments.
When I first hinted to an international journalist and author that I wanted to pen this manuscript, the response I received both shocked and patronised me. What is it, he asked, that I would add to literature, which would not be forthcoming from approximately five experienced journalists and authors who were already busy writing on the same subject? What is it that I thought I would be able to contribute to the wealth of information which their experience could not? Others asked me why I had the audacity to write about Oscar when I had my own skeletons. So I suppose in some cruel way, I was being told that I don’t quite fit the profile of a credible writer. Even though it was never said out loud, the insinuation was that I have a murky past in white collar crime, and therefore, without so much as a look at my analyses, without consideration for my knowledge, qualifications or experience, I was hurriedly written off.
Now, so many months after sentencing, I was alerted to a discussion on Facebook that had occurred during that period. A certain individual, based in Manchester in the UK apparently wanted to make sure that I had indeed been jailed for fraud. He was certain that my qualifications were false and that I had to be dealt with because I had “caused untold damage to the trial”. How, I still do not know. I told it exactly as I saw it. I am telling it exactly as I see it in this very book.
The daunting nature of writing a book began with some hiccups. Due to an evil twist of fate, the first draft disappeared into the black hole of my laptop, never to be seen again. I had to go back to square one and start afresh, doing so without a traditional publisher and without any financial support. The process was a bit of a nightmare but the book which I promised I would deliver, is now done and dusted.
So interrogate with me, walk with me through 286 Silverwoods Estate, as I attempt to piece together the broken pieces of the evidentiary puzzle. All I ask is that you keep an open mind. This book is not an attack on Oscar. It is not meant to be an attack on the person of Justice Thokozile Masipa. It is not in any way meant to embarrass the State, for what I argue are the inadequacies which might have sealed a verdict of murder dolus directus. I did not write this to impugn any witness but I do tell it exactly the way I see it.
This book is about the brutal murder of a young woman by her lover of three months. It is nothing more it is nothing less.
I have written this book precisely because I have a right to, in the words of Steve Biko, to “write what I like.”
INTRODUCTION
A wretched Saint Valentine’s Day
“For this was on seynt Volantynys day
Whan euery bryd comyth there to chese his make.”
Geoffrey Chaucer’s - Parlement of Foules1382
The murder of Reeva Steenkamp on February 14, 2013 gave credence to the brutal and savage origins of Saint Valentine’s Day, when saints were executed for their beliefs. The saints were martyred, an honour and status Reeva will never officially enjoy. In Part III of Christine de Pizan’s book, The Book of the City of Ladies, Christine is joined by Lady Justice to add finishing touches to the allegorical city, to usher in a queen. Lady Justice tells the author about female saints who had been praised for their martyrdom. Upon the completion of the city, Christine addresses all women, warning them to defend and to protect the city by following their queen, Virgin Mary. She warns them against slanderers and treacherous liars, who use nothing but “tricks and honeyed words” to steal their chastity and good names.
According to legend, Saint Valentine healed the daughter of his jailer, Asterius, during his imprisonment and before his execution on February 14, he wrote her a farewell letter signed, "Your Valentine".
The day before she was killed, Reeva gave Oscar a card, which she asked him not to read until Valentine’s Day.
Inside, she wrote:
“Roses are red, violets are blue”
“I think today is a good day to tell you that…’
“I love you.”
The Latin phrase Arx tarpeia Capitoli proxima (“the Tarpeian Rock is close to the Capitol”) has often been interpreted to mean that, “one's fall from grace can come swiftly”. The fall from grace of paralympian, Oscar Leonard Carl Pistorius came swiftly, following hot on the heels of him being charged by the State, with the murder of his girlfriend, Rebecca Steenkamp. The model and law graduate was killed in the early hours of a cruel, convoluted, cursed and bloody Valentine’s Day in 2013.
Oscar. He with the Latinised surname, meaning “”miller” or “Bakker” in the native Dutch of his forbears, an Afrikaner, a descendant of progenitor, Freidrich Heinrich Pistorius and Augusta Frederike Bernadina von Landsberg, stood accused of having murdered his girlfriend, who friends, family and people across the world had fondly come to know as Reeva. The State in its closing arguments, listed thirteen instances of incongruence and deceit; the proverbial baker’s dozen, unpalatable or not to Advocate Barry Roux SC, these were placed before the Court by Advocate Gerrie Nel, one of two prosecutors for the State.
Oscar is the son of Henreich Carl Wilhelm (Henke) Pistorius and the late Sheila Francis Bekker. His sporting motto stood in stark contradiction to the image of anxious, startled and vulnerable Oscar, who cries like a woman when he is severely distressed. His motto, like his career, and not unlike his crime, knew no limits. It is he who declared that:-
"You're not disabled by the disabilities you have; you are able by the disabilities you have".
The competing interests were delicate. Oscar had not mowed down (execution-style) an intruder who was invading his space. He was a hero for crying out loud, a beloved icon. Yet, news reports about his dark and temperamental side were never far off. Those South Africans loyal to the perception of people based on their status and standing in society, were dealt a heavy blow. There were after all, some who had blindly supported Hansie Cronje, believing at first that he was without blemish. The same dynamics were at play here and no matter how intrusive the media, no matter how brutal discourse was in the public domain at times, Oscar enjoyed privileges and treatment which were thrust upon him by virtue of status and standing on the world stage. No matter how horrific Reeva’s murder was, in some quarters Oscar somehow, had to be saved. Broadcasters sucked the last bit of nectar out of the Oscar flower. The world bore witness as time was devoted to multiple interviews with his siblings. We were forced to digest just how devastating the episode was for them.
The criminal conviction for murder caught those in denial of the crime and blind supporters by surprise. Justice Masipa in their eyes, was God’s gift to Oscar. The assessors who were appointed had happily gone along with a fatally flawed judgment but for some, the outrage ought to have been directed at the high, violent crime rates in South Africa and not at Oscar. The undertones were clear: had Oscar Pistorius pumped four bullets through the door at an intruder, then his actions would have been perfectly excusable.
Regardless, they argued, Oscar was not found guilty of Reeva’s murder but rather the murder of whoever it was who was behind the door. We were informed that Kgosi Mampuru II prison, was now popularly referred to as Oscar Mampuru II. Oscar occupied the cell above that of late Black Consciousness leader, Steve Bantu Biko. No other person convicted of murder has ever been treated so glowingly, almost with applause. It is clear that Oscar’s privileges, not unlike those enjoyed by his forbears, were firmly in place. Visits to prison became popular after the release of political prisoners from Robben Island. Was this really the type of image Correctional Services wanted to convey to the world? This is the centre where the remains of 83 political prisoners are still to be exhumed. Of 1070 prisoners hanged for capital crimes, prior to the abolition of the death penalty, 97% were black.
While Oscar basked in the attention, Reeva remained silenced. She was accused of flirting with the husband of her friend. She was said to have slammed the window so hard that Oscar was startled. She also slammed the toilet door causing it to click and then to clank. She was accused of not having cried, she didn’t call the police as she was asked to, she didn’t respond to Oscar shouting because as per Oscar’s version, had Reeva come out of the toilet, he would not have fired the fatal shots. All the versions and defences in his versions, paint Reeva as a powerless, unthinking and silent lamb who would, in the face of such a brutal attack, not utter a single word.
Reeva was born in Cape Town with Irish, Afrikaner and possibly other roots, to parents Barry Steenkamp, a horse trainer, and his wife, June (née Marshall, previously Cowburn), originally from Blackburn, England. Reeva had two older siblings, Adam and Simone. The family later moved to Port Elizabeth. Reeva began modelling at age 14 and graduated in 2005 with a Bachelor of Laws (LLB) degree from the Nelson Mandela Metropolitan University.
Reeva’s death and murder was dealt with differently from others, by the media. South Africans had unfortunately, become accustomed to seeing the corpses of violated and brutalized women on television. In my opinion, Professor Saayman was correct to point out the dignity with which patients ought to be treated but it had to take this murder trial for those issues to be highlighted. The media had previously freely aired and printed gruesome images, with a trigger warning stating that the images might be disturbing to some. The disparities which still plague South African society became pronounced during and after the trial.
The one bench I did not desire to be seated on, was the bench of June and Barry Steenkamp. Whilst we were debating Oscar’s demeanour, whilst we left court on a high after other testimonies, there were people seated in court, for whom the trial was an open wound. They weren’t only sympathetic or empathetic; these were two people who were cruelly and directly affected by their daughter’s murder.
Behind Oscar sat his family. It could not have been easy for them either but we cannot even begin to compare the trauma of the two respective families. It was difficult for Oscar to look June and Barry Steenkamp in the eye. As someone who would arrive at court early, I would watch him very closely as he cordially greeted all the ladies of the African National Congress Women’s League even though they were there to support Reeva’s family. I saw Oscar’s humanity in that gesture. Oscar couldn’t have been a monster if he survived in normal society for this long, so I tried to focus on his positive attributes, despite his occasional brush with the law. I do believe that he too needs forgiveness and understanding and when he says the tragedy haunts him every day, one cannot dispute it.
But before the final chapter on the appeal at the Supreme Court of Appeal and the afterword which covers an comparative analysis with another case based on circumstantial evidence, are chapters which analyse every piece of evidence apportioning due weight to the differing arguments. The tapestry which is the timeline by the defence is interrogated and unraveled for it fails in so many respects. We take a brief historical look at the development of criminal law and punishment in South Africa and deliver the judgment, which in my view, ought to have been delivered.
The chapters which follow are explorative, interrogatory, riveting and thought-provoking. I piece together the facts, consider the nuances, analyse the evidence and propose the verdict which I feel should have been delivered, to you, the reader, for further analysis and thought.
Advocate Thuli Madonsela
' Very erudite and super informative.'
'To Kill A Fragile Rose: The State's Case Against Oscar Leonard Carl Pistorius
THIS is a brilliant AND highly informative legal-historical interrogation of the Pistorius case. IT IS chronicled elegantly, outlined meticulously and argued robustly. YET THE AUTHOR HANDLES THIS TRAGIC CASE WITH AMAZING SYMPATHY AND SENSITIVITY.
Professor Tinyiko Maluleke is Advisor to the Principal and Vice Chancellor at the University of Pretoria. Amongst others, he is an elected member of the Academy of Science for South Africa and a rated researcher by National Research Foundation. As well as having published many peer reviewed academic articles, Maluleke is a columnist for the Mail and Guardian and the Sunday Independant.
He is a member of the Boards of the Khulumani and the South African National Research Foundation.
A fresh, incisive, and insightful deconstruction of the State vs Oscar Pistorius. Brenda Wardle delves beyond the headlines to add new layers of legal, social, and political context to the sensational trial.
Gus Silber, Author
May 21, 2016
The Thrill of Being An Author
I've had better days, days on which I've been truly excited ..excited beyond measure, but, penning a book is hard work. I cannot overemphasize the importance of backing up your work for I lost an entire manuscript to the naivety of trusting my Sony Vaio.
I've been fortunate for Lady Luck has been on my side. I sent out my manuscript to three literary critics and two judges for an 'off-the-record' opinion and the feedback I have received thus far has been exceptional.
I haven't been back here in a quite while, so I 'kinda' missed out on reviews of titles by other authors. My dissertation is demanding, but not as demanding and as urgent as the need to ensure 'To Kill A Fragile Rose' gets out.
To those who've had to await, my sincerest apologies again. My next update will be too announce that I've clicked on the button which says, books sent!
I've been fortunate for Lady Luck has been on my side. I sent out my manuscript to three literary critics and two judges for an 'off-the-record' opinion and the feedback I have received thus far has been exceptional.
I haven't been back here in a quite while, so I 'kinda' missed out on reviews of titles by other authors. My dissertation is demanding, but not as demanding and as urgent as the need to ensure 'To Kill A Fragile Rose' gets out.
To those who've had to await, my sincerest apologies again. My next update will be too announce that I've clicked on the button which says, books sent!
March 12, 2016
If You Could Have Things Your Way
If you could have things your way
You would plaster my mouth so I wouldn’t have a say
If you could have things your way
You would pump me with bullets so I wouldn’t see another day
If you could have things your way
You would dump me like a leper, forlorn, I wouldn’t even be able to pray
If you could have things your way
You would perform a lobotomy so that my brains would dry up and dissipate like hay
If you could have things your way
You would shut me in a coffin so I would be neither happy nor gay
If you could have things your way
You would ensure that I am a maimed so my expressions would turn into clay
If you could have things your way
You would ensure that the door is locked and the key thrown away
If you could have things your way
You would tar and feather, lynch and batter my name
If you could have things your way
You would litter and rubbish, make sure everyone feels exactly the same
If you could have things your way your applause would last
My downfall would come fast
But the harder you dig, the harder you try
The more you realize that your wells are running dry
Oh! What travesty it would be if you had things your way!
You would plaster my mouth so I wouldn’t have a say
If you could have things your way
You would pump me with bullets so I wouldn’t see another day
If you could have things your way
You would dump me like a leper, forlorn, I wouldn’t even be able to pray
If you could have things your way
You would perform a lobotomy so that my brains would dry up and dissipate like hay
If you could have things your way
You would shut me in a coffin so I would be neither happy nor gay
If you could have things your way
You would ensure that I am a maimed so my expressions would turn into clay
If you could have things your way
You would ensure that the door is locked and the key thrown away
If you could have things your way
You would tar and feather, lynch and batter my name
If you could have things your way
You would litter and rubbish, make sure everyone feels exactly the same
If you could have things your way your applause would last
My downfall would come fast
But the harder you dig, the harder you try
The more you realize that your wells are running dry
Oh! What travesty it would be if you had things your way!
February 23, 2016
Shipping
14 days is all I ask for shipping of pre-orders, dispatching give-aways, getting this book onto bookshelves of major bookstores & Amazon
February 14, 2016
Haunted by the Lily MineTragedy
Solomon Nyarenda, Yvonne Mnisi and Pretty Mabuza have been trapped underground for over a week now. Reports earlier today suggested that there has been another collapse at Lily Mine in Louisville outside Barberton in Mpumalanga Province, South Africa.
Rescue operations reportedly remain suspended. Our thoughts and prayers are with the trapped miners as well as with their loved ones who anxiously await their return. as well as with the thousands of miners who descend into the belly of the earth day in and day out in an attempt to eke out a living for themselves and their families.
The Lily Mine tragedy struck a raw nerve in me. I have intricate links to mining in South Africa. My paternal Great, Great, Grandfather, John Wardle (inset) who hails from Newcastle Upon Tyne, died at Du Toitspan Mine, Beaconsfield (now Kimberley) on 24th August 1874. We have not been able to trace his grave and the cause of his death at the mine remains a mystery. All we have is a newspaper report which states that 'Prominent, Grahamstown Farmer, John Wardle, died at Du Toitspan Mine Kimberly, 24th August 1974.' My maternal grandfather Nkonko Mene (Pinini) was ''conscripted' to the mines by Theba but fortunately in his case, he made it back to Tsomo, in the Eastern Cape, where he lived until he died in 1976.
Kimberley Underground is comprised of three historic diamond mines namely Bultfontein Mine, Du Toitspan Mine and Wesselton Mine. Mining at Du Toitspan, which has a surface area of 11 hectares commenced in 1869 as an open-pit mine until these three aforementioned mines were amalgamated into De Beers in 1890. Du Toitspan Mine with its diamondiferous soil, is currently being mined as a closed mine at depths of 870m. A neglected graveyard with tall grass and old tombstones litters a lonely and scary patch at the mine. A search for the grave of my Great Great Grandfather proved fruitless and unnerving. Why the current owners of the mine have not bothered to maintain this cemetery in a decent state, is unknown to me. But, we go to sleep daily in the hope that someday someone will locate Great Great Grandpa's grave and his death notice.
According to a right up by Steve Lunderstedt,
'The first of the Kimberley diamond mines to be discovered was the Du Toitspan Mine, named such because the farm Dorstfontein originally belonged to Abraham Paulus du Toit, who had built a small house next door to the Pan, a basin shaped like a saucepan that holds water. It was named Du Toit’s Pan for obvious reasons. Du Toit sold the farm to a Mr. Geyer for £525 on 12 May 1865, and he in turn sold it to Adriaan J. van Wyk for £870 on 6 January 1869. At the time of the discovery the owner was Adriaan J. van Wyk, George Beet states that van Wyk found some “pretty stones” while digging a well, and these he sold to a travelling Jew.
Lunderstedt continues:-
The first mention in the South African newspapers on the diamond finds at Du Toitspan was a letter dated 4 November 1869 where it stated that in middle October five diamonds were picked up in 2-3 hours at “Tooispan.” Brian Roberts suggests that the first diamonds were discovered in early 1869 at Du Toitspan and by September the same year at Bultfontein. Fred Steytler, a clerk from Hopetown, stated that he had seen at least six diamonds found at Du Toitspan in October 1869 and that “diamonds are to be found in abundance.”
Certainly by December 1869 there were diggers at Du Toitspan, and the Diamond News, based at Klipdrift, stated that diamonds were being found at both Du Toitspan and Bultfontein from November 1869. By July 1870 there were a fair number of diggers operating their claims.'.
And then Lunderstedt concludes thus:-
'Van Wyk tried his best to sell his farm towards the end of 1870, even placing advertisements in newspapers proclaiming the value of the land. “For more than six months people have been digging…” stated one such advertisement, and the “…weekly finds average 60 – 100 diamonds…”
On 11 March 1871 the Du Toitspan farm was sold to Lilienfeld, Webb and partners (the London and South African Exploration Company) for £2600. The diamond controversy that followed and the Keate Award verdict of 1871 led to the annexation of the farms from the Orange Free State which became part of Griqualand West, which in turn was absorbed into the Cape Colony as from 1880.'
So, at the time of Great Great Grandpa's death, the mine been purchased by the London and South African Exploration Company. Perhaps that is where we will find some answers and perhaps much-needed closure.
Hopefully, with the passage of time, equipment will be used to descend to these dangerous depths of the earth without any risk to the valuable lives of miners. May the people of Lily Mine find strength at these trying times.
Rescue operations reportedly remain suspended. Our thoughts and prayers are with the trapped miners as well as with their loved ones who anxiously await their return. as well as with the thousands of miners who descend into the belly of the earth day in and day out in an attempt to eke out a living for themselves and their families.
The Lily Mine tragedy struck a raw nerve in me. I have intricate links to mining in South Africa. My paternal Great, Great, Grandfather, John Wardle (inset) who hails from Newcastle Upon Tyne, died at Du Toitspan Mine, Beaconsfield (now Kimberley) on 24th August 1874. We have not been able to trace his grave and the cause of his death at the mine remains a mystery. All we have is a newspaper report which states that 'Prominent, Grahamstown Farmer, John Wardle, died at Du Toitspan Mine Kimberly, 24th August 1974.' My maternal grandfather Nkonko Mene (Pinini) was ''conscripted' to the mines by Theba but fortunately in his case, he made it back to Tsomo, in the Eastern Cape, where he lived until he died in 1976.
Kimberley Underground is comprised of three historic diamond mines namely Bultfontein Mine, Du Toitspan Mine and Wesselton Mine. Mining at Du Toitspan, which has a surface area of 11 hectares commenced in 1869 as an open-pit mine until these three aforementioned mines were amalgamated into De Beers in 1890. Du Toitspan Mine with its diamondiferous soil, is currently being mined as a closed mine at depths of 870m. A neglected graveyard with tall grass and old tombstones litters a lonely and scary patch at the mine. A search for the grave of my Great Great Grandfather proved fruitless and unnerving. Why the current owners of the mine have not bothered to maintain this cemetery in a decent state, is unknown to me. But, we go to sleep daily in the hope that someday someone will locate Great Great Grandpa's grave and his death notice.
According to a right up by Steve Lunderstedt,
'The first of the Kimberley diamond mines to be discovered was the Du Toitspan Mine, named such because the farm Dorstfontein originally belonged to Abraham Paulus du Toit, who had built a small house next door to the Pan, a basin shaped like a saucepan that holds water. It was named Du Toit’s Pan for obvious reasons. Du Toit sold the farm to a Mr. Geyer for £525 on 12 May 1865, and he in turn sold it to Adriaan J. van Wyk for £870 on 6 January 1869. At the time of the discovery the owner was Adriaan J. van Wyk, George Beet states that van Wyk found some “pretty stones” while digging a well, and these he sold to a travelling Jew.
Lunderstedt continues:-
The first mention in the South African newspapers on the diamond finds at Du Toitspan was a letter dated 4 November 1869 where it stated that in middle October five diamonds were picked up in 2-3 hours at “Tooispan.” Brian Roberts suggests that the first diamonds were discovered in early 1869 at Du Toitspan and by September the same year at Bultfontein. Fred Steytler, a clerk from Hopetown, stated that he had seen at least six diamonds found at Du Toitspan in October 1869 and that “diamonds are to be found in abundance.”
Certainly by December 1869 there were diggers at Du Toitspan, and the Diamond News, based at Klipdrift, stated that diamonds were being found at both Du Toitspan and Bultfontein from November 1869. By July 1870 there were a fair number of diggers operating their claims.'.
And then Lunderstedt concludes thus:-
'Van Wyk tried his best to sell his farm towards the end of 1870, even placing advertisements in newspapers proclaiming the value of the land. “For more than six months people have been digging…” stated one such advertisement, and the “…weekly finds average 60 – 100 diamonds…”
On 11 March 1871 the Du Toitspan farm was sold to Lilienfeld, Webb and partners (the London and South African Exploration Company) for £2600. The diamond controversy that followed and the Keate Award verdict of 1871 led to the annexation of the farms from the Orange Free State which became part of Griqualand West, which in turn was absorbed into the Cape Colony as from 1880.'
So, at the time of Great Great Grandpa's death, the mine been purchased by the London and South African Exploration Company. Perhaps that is where we will find some answers and perhaps much-needed closure.
Hopefully, with the passage of time, equipment will be used to descend to these dangerous depths of the earth without any risk to the valuable lives of miners. May the people of Lily Mine find strength at these trying times.
February 13, 2016
The Fine Line of An Amicus Curiae
Something had been gnawing at my legal conscience ever since I saw the admission of Corruption Watch as an amicus curiae in the Constitutional Court matters of the Economic Freedom Fighters and the Democratic Alliance versus the President and others. I was interested in seeing what the basis was for their admission as amicus. This post is by no means a legal article and I will thus not traverse the law dealing with the admission of persons or parties as amici curiae, save to touch on the most salient features.
An amicus curiae, for those not familiar with this legal term, is, nothing more than a 'friend of the court'. As 'friend of the court', the amicus has to walk the thin line and remain alive to the fact that they cannot ever be a friend or be seen to be a friend of the parties to the litigation as well. So, what is it that these prospective friends of the court must advance in their applications for admission as amicus?
The test for admission as amicus curiae, at its most fundamental level (albeit the Constitutional Court has added a few more requirements), is a direct and substantial interest in the subject matter of litigation. However, it has been held to be more appropriate, in certain instances, for parties to apply to intervene as parties, rather than to apply to be admitted as amici.
An important role which is played by an amicus therefore is that they must assist (through specialized knowledge and experience gained on a subject matter) by highlighting aspects which the Court, in their absence, would be the poorer without. This means that nothing which is obvious, nothing which is common cause, nothing which is easily discernible or readily understood, can or should be advanced by these 'friends' and impartial advisers as that would serve no purpose other than to waste the Court's valuable time. Therefore, after the amicus have made their submissions, everyone, especially the Court (but also the litigants), must be wiser on that particular aspect or subject. The amicus can thus never be admitted to merely bolster the case of one or other litigant or intervening or joining party.
My curiosity then led me to the Notion of Motion and the Founding Affidavit filed by Corruption Watch. What I did discern from these papers is exactly who Corruption Watch is, what it is that they do and why they argued they should be admitted as friends of the Court. At the heart of their application is providing guidance on the correct interpretation of the powers and functions of the Public Protector, especially the effect of her recommendations and suggested remedial action. This is in my view was superfluous and I say so for the reasons here under.
The Doctrine of Separation of Powers finds application in South Africa. In terms of this doctrine, the three spheres (albeit I prefer to call them arms to avoid the confusion with the national, provincial and local spheres) of government, being the Executive, the Legislature and the Judiciary with their respective duties and responsibilities must ( as far as practically possible), remain distinct, independent and separate, with one arm cautious not to encroach upon the area of responsibility of another (others). The Executive, as we all know, must execute the policies of government in compliance with the laws. The Legislature on the other hand, must make the laws, as well as amend and repeal those laws where necessary. The Judiciary in turn, must, when there is a dispute about either the interpretation of a law(s), the constitutional validity of a law(s) or the conduct of a person (natural or juristic) or an institution and/or when there is a dispute about the correct application of a law, determine what the law is, what the law means, how the law is to be applied and where whether or not conduct or law is constitutionally valid. It cannot therefore be that the Judiciary (read Constitutional Court Justices), who are capable, would need an amicus to assist them in the performance of their role of interpreting and applying legislation. For that, in a nutshell, is what Corruption Watch sought to do.
Corruption Watch argue in their papers (supported by statistics) that they assist certain persons (who for one reason or the other cannot do so themselves), in lodging complaints with the Office of the Public Protector and that in certain instances, they (Corruption Watch) work with the Office of the Public Protector and certain Agencies in their fight against corruption. I must hastily add that they play a critical role. Corruption Watch further cites the incidence of public-sector corruption and the adverse effect disregarding the findings of the Public Protector might have, or in fact, has. On the incidence of public sector corruption in South Africa, we have another performing Chapter 9 institution, being the Office of the Auditor General which makes these stats on the levels of corruption available on at least an annual basis. The number of complaints from members of the public is thus representative of a sub-category of the levels of wide-spread corruption and thus not uniquely helpful nor novel. The statistics from the Office of the Public Protector itself, would be a more accurate reflection of complaints lodged both through Corruption Watch and by members of the public independently.
Corruption Watch then argues (as they did in the matter of the Democratic Alliance v The SABC and Others, that the powers of the Public Protector ought to be affirmed (or reaffirmed). This in my view was adequately encapsulated and argued in the respective applications of the Economic Freedom Fighters and the Democratic Alliance. I have long held that the manner in which the President (and for this I laid and continue to lay the blame squarely at the door of his legal advisors) and by implication, the National Assembly, dealt with the Public Protector's report (Secure in Comfort), in a legally flawed manner. Ultimately, it is the role of the Courts to interpret and apply legislation. The case before the Constitutional Court (even prior to certain concessions having been made by the President) was and remains clear cut. We should not, as a nation, have gotten to that stage. But, the fact that we are, does not make the case a complicated matter at all. All-important yes, complicated, no.
So, do I think that Corruption Watch ought to have been admitted as amicus? In my personal opinion, a big, resounding, no. As an institution which, by their own admission collaborated with or worked with the Office of the Public Protector on certain matters, they were and are too close to the bone not to be friends of litigants or joiners. Does Corruption Watch shed any specialist knowledge and light on the subject matter of the litigation and do they assist the Court? Again, in my humble opinion (and it might be a worthless opinion), a resounding, no. Do they have a substantial interest in the subject matter of the litigation? Yes, they absolutely do. But, they are a party with a material interest in the outcome of the litigation, too close to be impartial and objective (not that objectivity is relevant in this argument), but, they ought to have been requested to intervene or join as parties.
The one aspect I did not mention, was the fact that public interest in a matter of this magnitude, is critical. I cannot, however, conclude that Corruption Watch were joining as amicus for greater public good. That fine line, for me, was too blurred.
An amicus curiae, for those not familiar with this legal term, is, nothing more than a 'friend of the court'. As 'friend of the court', the amicus has to walk the thin line and remain alive to the fact that they cannot ever be a friend or be seen to be a friend of the parties to the litigation as well. So, what is it that these prospective friends of the court must advance in their applications for admission as amicus?
The test for admission as amicus curiae, at its most fundamental level (albeit the Constitutional Court has added a few more requirements), is a direct and substantial interest in the subject matter of litigation. However, it has been held to be more appropriate, in certain instances, for parties to apply to intervene as parties, rather than to apply to be admitted as amici.
An important role which is played by an amicus therefore is that they must assist (through specialized knowledge and experience gained on a subject matter) by highlighting aspects which the Court, in their absence, would be the poorer without. This means that nothing which is obvious, nothing which is common cause, nothing which is easily discernible or readily understood, can or should be advanced by these 'friends' and impartial advisers as that would serve no purpose other than to waste the Court's valuable time. Therefore, after the amicus have made their submissions, everyone, especially the Court (but also the litigants), must be wiser on that particular aspect or subject. The amicus can thus never be admitted to merely bolster the case of one or other litigant or intervening or joining party.
My curiosity then led me to the Notion of Motion and the Founding Affidavit filed by Corruption Watch. What I did discern from these papers is exactly who Corruption Watch is, what it is that they do and why they argued they should be admitted as friends of the Court. At the heart of their application is providing guidance on the correct interpretation of the powers and functions of the Public Protector, especially the effect of her recommendations and suggested remedial action. This is in my view was superfluous and I say so for the reasons here under.
The Doctrine of Separation of Powers finds application in South Africa. In terms of this doctrine, the three spheres (albeit I prefer to call them arms to avoid the confusion with the national, provincial and local spheres) of government, being the Executive, the Legislature and the Judiciary with their respective duties and responsibilities must ( as far as practically possible), remain distinct, independent and separate, with one arm cautious not to encroach upon the area of responsibility of another (others). The Executive, as we all know, must execute the policies of government in compliance with the laws. The Legislature on the other hand, must make the laws, as well as amend and repeal those laws where necessary. The Judiciary in turn, must, when there is a dispute about either the interpretation of a law(s), the constitutional validity of a law(s) or the conduct of a person (natural or juristic) or an institution and/or when there is a dispute about the correct application of a law, determine what the law is, what the law means, how the law is to be applied and where whether or not conduct or law is constitutionally valid. It cannot therefore be that the Judiciary (read Constitutional Court Justices), who are capable, would need an amicus to assist them in the performance of their role of interpreting and applying legislation. For that, in a nutshell, is what Corruption Watch sought to do.
Corruption Watch argue in their papers (supported by statistics) that they assist certain persons (who for one reason or the other cannot do so themselves), in lodging complaints with the Office of the Public Protector and that in certain instances, they (Corruption Watch) work with the Office of the Public Protector and certain Agencies in their fight against corruption. I must hastily add that they play a critical role. Corruption Watch further cites the incidence of public-sector corruption and the adverse effect disregarding the findings of the Public Protector might have, or in fact, has. On the incidence of public sector corruption in South Africa, we have another performing Chapter 9 institution, being the Office of the Auditor General which makes these stats on the levels of corruption available on at least an annual basis. The number of complaints from members of the public is thus representative of a sub-category of the levels of wide-spread corruption and thus not uniquely helpful nor novel. The statistics from the Office of the Public Protector itself, would be a more accurate reflection of complaints lodged both through Corruption Watch and by members of the public independently.
Corruption Watch then argues (as they did in the matter of the Democratic Alliance v The SABC and Others, that the powers of the Public Protector ought to be affirmed (or reaffirmed). This in my view was adequately encapsulated and argued in the respective applications of the Economic Freedom Fighters and the Democratic Alliance. I have long held that the manner in which the President (and for this I laid and continue to lay the blame squarely at the door of his legal advisors) and by implication, the National Assembly, dealt with the Public Protector's report (Secure in Comfort), in a legally flawed manner. Ultimately, it is the role of the Courts to interpret and apply legislation. The case before the Constitutional Court (even prior to certain concessions having been made by the President) was and remains clear cut. We should not, as a nation, have gotten to that stage. But, the fact that we are, does not make the case a complicated matter at all. All-important yes, complicated, no.
So, do I think that Corruption Watch ought to have been admitted as amicus? In my personal opinion, a big, resounding, no. As an institution which, by their own admission collaborated with or worked with the Office of the Public Protector on certain matters, they were and are too close to the bone not to be friends of litigants or joiners. Does Corruption Watch shed any specialist knowledge and light on the subject matter of the litigation and do they assist the Court? Again, in my humble opinion (and it might be a worthless opinion), a resounding, no. Do they have a substantial interest in the subject matter of the litigation? Yes, they absolutely do. But, they are a party with a material interest in the outcome of the litigation, too close to be impartial and objective (not that objectivity is relevant in this argument), but, they ought to have been requested to intervene or join as parties.
The one aspect I did not mention, was the fact that public interest in a matter of this magnitude, is critical. I cannot, however, conclude that Corruption Watch were joining as amicus for greater public good. That fine line, for me, was too blurred.
January 28, 2016
One More Day
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Final Two Days
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Days are injured her.
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Days are injured her.
January 26, 2016
She's An Imp Full of Bile
Oh how her outward beauty faded
As her twisted psyche unravelled
She left me insulted and jaded
Had me reliving the road I had traveled
Oh what twisted trick did my womb play on me?
What purulent fluid osmosed between her & I
The imaginary community came out in full force to see
The shock, the tears the shivers, told no lie
I had always thought I had done my best
She didn't care bout that I could fall over and die
I pulled all stops trying to cope like the rest
And now here I was trying to cover up and lie
Did I have it in me to call out the cops?
i imagined her slim frame already stuffed in a van
Battered and bruised before she could reach the shop
What type of a parent would I be if I reported than ran?
But her insults were taunting
Her profanity most vile
The dark was too daunting
She's an imp full of bile
So battered and bruised
Manipulated and abused
Hurting and furious
From words so spurious
I retracted to my cocoon
For I knew it would start again soon
So even if I can rile
She's an imp full of bile!
As her twisted psyche unravelled
She left me insulted and jaded
Had me reliving the road I had traveled
Oh what twisted trick did my womb play on me?
What purulent fluid osmosed between her & I
The imaginary community came out in full force to see
The shock, the tears the shivers, told no lie
I had always thought I had done my best
She didn't care bout that I could fall over and die
I pulled all stops trying to cope like the rest
And now here I was trying to cover up and lie
Did I have it in me to call out the cops?
i imagined her slim frame already stuffed in a van
Battered and bruised before she could reach the shop
What type of a parent would I be if I reported than ran?
But her insults were taunting
Her profanity most vile
The dark was too daunting
She's an imp full of bile
So battered and bruised
Manipulated and abused
Hurting and furious
From words so spurious
I retracted to my cocoon
For I knew it would start again soon
So even if I can rile
She's an imp full of bile!
She's An Imp Full of Bile
Oh how her outward beauty faded
As her twisted psyche unravelled
She left me insulted and jaded
Had me reliving the road I had traveled
Oh what twisted trick did my womb play on me?
What purulent fluid osmosed between her & I
The imaginary community came out in full force to see
The shock, the tears the shivers, told no lie
I had always thought I had done my best
She didn't care bout that I could fall over and die
I pulled all stops trying to cope like the rest
And now here I was trying to cover up and lie
Did I have it in me to call out the cops?
i imagined her slim frame already stuffed in a van
Battered and bruised before she could reach the shop
What type of a parent would I be if I reported than ran?
But her insults were taunting
Her profanity most vile
The dark was too daunting
She's an imp full of bile
So battered and bruised
Manipulated and abused
Hurting and furious
From words so spurious
I retracted to my cocoon
For I knew it would start again soon
So even if I can rile
She's an imp full of bile!
As her twisted psyche unravelled
She left me insulted and jaded
Had me reliving the road I had traveled
Oh what twisted trick did my womb play on me?
What purulent fluid osmosed between her & I
The imaginary community came out in full force to see
The shock, the tears the shivers, told no lie
I had always thought I had done my best
She didn't care bout that I could fall over and die
I pulled all stops trying to cope like the rest
And now here I was trying to cover up and lie
Did I have it in me to call out the cops?
i imagined her slim frame already stuffed in a van
Battered and bruised before she could reach the shop
What type of a parent would I be if I reported than ran?
But her insults were taunting
Her profanity most vile
The dark was too daunting
She's an imp full of bile
So battered and bruised
Manipulated and abused
Hurting and furious
From words so spurious
I retracted to my cocoon
For I knew it would start again soon
So even if I can rile
She's an imp full of bile!
