Oscar: fair sentence but for unjust reasons

Judge Thokozile Masipa reads her sentence of Oscar Pistorius on day six of sentencing procedures at the High Court in Pretoria. Picture: THEMBA HADEBE/POOL

Judge Thokozile Masipa reads her sentence of Oscar Pistorius on day six of sentencing procedures at the High Court in Pretoria. Picture: THEMBA HADEBE/POOL

Published Oct 21, 2014

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There can be no doubt that society's moral disapproval of the senseless, avoidable killing of model Reeva Steenkamp cannot be adequately expressed with a five year jail sentence, writes Eusebius McKaiser.

Oscar Pistorius will probably not spend five years in jail. Unless of course he misbehaves, gets involved in criminal activity behind bars, joins the number gang, and declines opportunities to sing in the choir, attend rehabilitation workshops, plant some veggies in the garden, and maybe start his own athletics club for inmates.

The reason is that Judge Masipa has sentenced him to a maximum of five years, and in practice that means that after the first ten months of restricted movement, he will be eligible for house arrest.

He could, as early as next year's women's month, be reunited with his biggest fan, Uncle Arnold Pistorius, and the rest of the family.

This raises a straightforward question yet one open to many reasonable but incompatible views: Did Judge Masipa punish Oscar Pistorius appropriately for culpable homicide?

In my view, Judge Masipa did get the sentence roughly right, but for unflattering reasons.

There can be no doubt that society's moral disapproval of the senseless, avoidable killing of model Reeva Steenkamp cannot be adequately expressed with a five year jail sentence.

And so it is unsurprising, and justified even, that so many South Africans have already expressed outrage on Twitter, Facebook and on the radio airwaves.

However, the sentence is defensible in the context of the judgment that had been handed down a couple of weeks ago.

We will have to live with the fact that law and morality do not always coincide.

Most of us, myself included, who are not deeply satisfied by Pistorius' five year jail terms are reacting, if we're honest, as if Pistorius is a convicted murderer.

But he is not a murderer, legally speaking. He was found guilty of negligently killing Steenkamp. He wasn't found guilty of murdering her, and definitely not guilty of premeditated murder.

I have written previously about why I thought Judge Masipa was wrong to not convict Pistorious of murder.

I still hold the view that, on the facts before her, it is clear that Pistorious actually foresaw that firing the four bullets into the bathroom door will kill the person he imagined to be lurking there, but that he reconciled himself to that fact without stopping himself: These two sets of facts are sufficient to convict him of murder on the basis of that now infamous piece of Latin, dolus eventualis.

Let's hope the state appeals the verdict so that a higher court has a chance to right Masipa's legal wrong.

However, it's important to separate disagreement with the verdict from analysis of the sentence that was meted out today.

When assessing the adequacy of the sentence, one must assume that the actual verdict handed down - culpable homicide - was the correct verdict.

In which case, while she could have sentenced Pistorius to a few more years behind bars, with no opportunity for possible house arrest, Judge Masipa was spot-on when she reminded us that her sentencing decision is subjective, a matter of her exercising discretion, and that different courts may hand down different sentences, all of them legally acceptable sentences.

Judge Masipa balanced the fact that Pistorius was grossly negligent (the worst serious kind of negligence in law), and that a strong message had to be sent to society that this kind of illegal action is not acceptable, with the countervailing facts that he is a first-time offender, has made some contributions to society and, in her opinion, had shown remorse for his actions.

Given that these were her findings, after listening to the arguments in mitigation and aggravation of sentence, she would have been merciless, frankly, if she imposed the maximum possible sentence for this offence.

On the other hand, if she had imposed a non-custodial sentence, she would have made a mockery of her own finding that Pistorious had been grossly negligent.

His negligence wasn't one big tragedy in which Mother Nature had played a foul trick on him and Steenkamp.

He acted deliberately, as opposed to a case in which, for example, a dad leaves his pistol in the study, where no one ever goes, and tragically on this particular day a toddler got hold of it, a shot goes off and someone is fatally wounded.

Pistorious' case, as the judge herself has now implied, bordered on murder.

So a non-custodial sentence was out of the picture (due to gross negligence) and a maximum sentence was out of the picture too (she deemed him remorseful, an otherwise good citizen of the world and a first-time offender).

The sentence is rational, even if it is not just, even if won't bring back Reeva Steenkamp.

But then again not even a life sentence can adequately compensate for the illegal killing of another person.

But this is all law, I'm afraid, and many legal experts have done a pretty good job today explaining to the public why Judge Masipa's sentence isn't a light one, in legal terms.

But legal analysis are limited, frankly.

The wider social implications of this judgment, and the verdict, are deeply disappointing and worrisome.

In a country in which way too many of us speak violence as our twelfth official language, one cannot overlook the symbolism of the outcome of this case.

This case suggests that life is cheap, and that intimate partner violence - negligent or intentional - will not see you spend many years in jail.

There will also be concerns now about whether or not a precedent had been set that intruders' lives are cheap too.

If you imagine an intruder to be locked behind a door, you can shoot.

Not all of these consequences are legally sound, as any lawyer or law student would instantly recognise.

But that would miss the point.

Ordinary people aren't lawyers.

We are social creatures deeply embedded in the fabric of South African society with racial, class and other identity markers intersecting in complicated ways.

So while Judge Masipa's sentencing decision can be defended in law, the socio-legal impact of the entire case isn't all that rosy.

The law has taken its course, but whether justice has properly been done and seen to be done, remains an open debate.

* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma. He is currently working on his third book, Searching For Sello Duiker.

** The views expressed here do not necessarily represent those of Independent Media.

 

 

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