The Oscar Pistorius murder trial has been a gift that keeps on giving. Just when you think the drama is over, a swearing thug makes a cameo appearance in court, and advocate Barry Roux flirts with Ubuntu in a desperate attempt to keep Pistorius out of jail. It’s tempting to describe the entire trial as tragicomic. But that would be an injustice: Reeva Steenkamp is dead. If only it was merely a comical farce.
Tomorrow Pistorius will know his fate. His defence lawyer tried hard to persuade the court that sending the athlete to jail would not be in the spirit of Ubuntu.
I almost choked on my chai tea. I don’t know which bit was more comical: Roux’s confession that he accidentally stumbled upon a book about Ubuntu and the law, or his very poor understanding of Ubuntu. If Roux indeed only recently got hold of the book, he either hasn’t read it closely, or didn’t understand the points retired Justice Yvonne Mokgoro and others have been wrestling with about Ubuntu and the law.
Ubuntu isn’t a very precise concept in law, and so should not be the most central value to appeal to in telling Judge Masipa why Pistorious should not be jailed. Justice Mokgoro made this very point about Ubuntu’s vagueness back in 1997, when she described the value as not susceptible to clear statement. She said the concept could at best only be understood in indigenous languages, and a jurisprudence crafted in English, like ours, would never be able to capture the meaning of Ubuntu with adequate linguistic and conceptual clarity.
She described it as one of those concepts “that you know when you see it”.
I still believe this to be more than mocking the concept: The meaning of Ubuntu depends on what judges had for breakfast. Who knows what Judge Masipa will have for breakfast tomorrow? So Roux may well find Ubuntu take centre-stage in Masipa’s reasons for, giving Oscar a non-custodial sentence. I hope not, and here is why.
The best accounts of what is meant by Ubuntu exist outside South African case law. Many have written about the value, and one person’s work I have enjoyed reading and engaging with is that of University of Johannesburg’s Professor Thaddeus Metz, who is an academic philosopher.
For Metz, Ubuntu is about “becom[ing] a moral person insofar as one honours communal relationships” or “a human being lives a genuinely human way of life to the extent that she prizes identity and solidarity with other human beings”.
Crucially, this allows Metz to make sense of human rights violations as instances of “gravely disrespecting people’s capacity for communal relationship”. Society can be unfriendly towards these human rights violators in order to counteract their “own divisiveness and ill-will”.
Now let’s apply this to Pistorius. Clearly Pistorius violated Reeva’s right to life. He killed Steenkamp’s capacity to form and enjoy communal relationships. Not only did Pistorius fail to act with a deep sense of and commitment to Ubuntu the night he killed Reeva, worse: by killing Reeva, he wiped out her capacity for communal life, and communal relationships. And now Team Oscar has the audacity to appeal to Ubuntu, which he was in short supply of that Valentine’s Day morning, in asking Judge Masipa to show mercy in the name of Ubuntu? The irony is painful.
Of course restorative justice has a place. We shouldn’t be bloodthirsty hooligans incapable of showing mercy, and only wanting revenge and retribution when punishing criminals. But the appeal to restorative justice on the part of Roux is unconvincing for two reasons.
Firstly, restorative justice should be used mostly in minor criminal cases (like when someone steals Panado. Second, restorative justice, and Ubuntu for that matter, aren’t incompatible with jail time. You can restore relations between Pistorius and the Steenkamp family while he is in jail. Roux wrongly implies that restorative justice and Ubuntu, by definition, mean the court can’t lock up Pistorius. That’s false. Lots of great rehabilitation, and restoring of broken social bonds, can happen in prison. Judge Masipa shouldn’t be fooled by Roux’s attempt to pull a fast one.
Shooting four times at a locked door, voluntarily, while subjectively believing a living creature is behind that door, but not stopping yourself, is a serious offence.
Oscar must be sent to jail My Lady.
In prison, which is very communal space, he might learn the true meaning of Ubuntu. He could start that journey by joining the prison choir and learning to respect harmony and not sowing discord.
That is real Ubuntu.