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Now that they’ve rested... Part 1: The Ear Witnesses

10 July 2014, 13:51

Now that they’ve rested... Part 1: The Ear Witnesses

You’ve gotta feel for Oscar’s defence team. They had little to work with from the start. I remember thinking, following the bail hearing where Roux clubbed Hilton Botha like a baby seal (or at least likened to that in the press), that this guy better be every bit as  good as they say he is. I felt this way because, even at that early stage, I was of the opinion that his client is guilty. Also, Oscar’s plea was to be self defence (well, initially), a plea which essentially shifts the burden of proof to the defence.

 Now before the prejudice police swoop in (as they did back then, never to miss an opportunity to state the obvious in the hopes of praise and maybe even a thumbs up) let me make the following declaration:

Yes, I have been of the OPINION that Oscar is guilty from the moment I heard the details of the incident. However, it was a “working-opinion”, or “a viewpoint in progress”, if you will. I was always willing, and at some stages of the trial, even hoping for my stance to change based on what would transpire in court. It was an instinctual belief and it was shared by many who, not unlike myself, were NOT THE PRESIDING HIGH COURT JUDGE nor officers of the North Gauteng High Court during this trial; and thereby in no position to affect its outcome with our so-called prejudice. The PP was up in arms (as expected) but never mind them. They labour under many undesirable traits... a lack of conviction, to name but one. I digress, but these idiots were a real irritant during the trial. (Note-to-self: deal with them in a future piece) (Conflicting note-to-self: don’t bother with these idiots)


In a manner resembling his client, Roux was explosive out of the blocks. Faced with some compelling “ear witnesses” in the form of:  Michelle Burger, her husband Charl Johnson, Estelle v.d Merwe and Dr. & Mrs. Stipp,  old Barry flexed his legal brain, put his compassion on ice for the while, and put them to the proverbial sword.  This approach was rather risky as none of the aforementioned witnesses were acquainted with Oscar in any way and therefore unlikely to harbour any personal ill-feeling towards him. Moreover, if they subsequently “survived” Roux’s badgering, and sometimes, accusatory onslaught, and having nothing to gain from contradicting Oscar’s version, it would add credibility to their testimony.

In the absence of a case, the gamble was on. After a riveting 1st week of the “trial of the century”, the state’s ear witnesses stuck to their respective stories. However, the high-priced advocate managed to cast a few seeds of doubt on what the witnesses claimed they heard. He did this by casting doubt on their interpretation of they sounds heard on the fateful night. Basically, I know you think that‘s what you heard, but is x, y and z also not possible? Classic defence strategy; offer plausible alternative versions and voila, doubt is born.

However, this proved problematic, as none of the witnesses would not concede that an anxious Oscar’s screams resemble those of a blood curdling, fear-stricken female and (my personal favourite) that the sound emitted when an attempted cover drive (with a rather unimpressive  Lazer cricket bat) strikes a wooden door, resembles that of a gunshot. Roux dealt with this by, skilfully and confidently, implying that he would prove as much when he presents his case. *More on that in a moment.

As the first of the ear witnesses, a defiant Michelle Burger performed admirably. She appeared evasive at times, but the scales were evened out by Roux’s relentless lines of questioning. Having weathered Hurricane Barry for a day and a half, she eventually lost her composure and was overcome by emotion. I remember noting that it was not so much Roux who broke her, but that the recounting of events that clearly left their mark on her. A trauma, incidently, shared by the next witness.

 So traumatised was Estelle van der Merwe by the events she heard on the night in question, she could hardly hold it together long enough to recount them to the court. The brave soul took the stand and, with great difficulty, relayed her recollection of events. She told the court that she heard the couple arguing hours before the shooting and that it was so loud it compelled her to cover her head with a pillow. Having been scheduled to appear after the couple from the neighbouring estate, she was called directly after Burger, on proposal from a polite fellow witness. Enter Charl Johnson.

I will remember my impression of Charl Johnson as a man of striking integrity and supernatural patience. Not only did he never waiver, but maintained a graceful composure in the face of licensed condescension and antagonism from BR. Allowing Roux this kind of leeway left a lesser first impression on me of Judge Masipa. Nonetheless, as it turned out, this man was made of stern stuff. I truly regard Charl Johnson as a working class hero; the kind (according to John Lennon) we should look up. A soft-spoken and reluctant hero, but a hero all the same. His humility evoked in me a great admiration and, dare I say, a dormant faith in humanity. This from a man I have never laid eyes on. The contrast between the witness and the accused was very apparent to me; and so was the irony:

The flashy superstar type of hero, may well be brought down by the unassuming working class kind.

The good Dr. & Mrs. Stipp were to follow. They basically corroborated the testimony of the previous witnesses. Dr. Stipp, having had an eye view of Oscar’s house, added that he remembered the bathroom light being on during the incident; this in contradiction to Oscar’s version of events.  


Hindsight now reveals that most of Roux’s attempts to disprove the evidence given by the ear witnesses occurred AFTER his promise to do so.

The defence has now rested and will prepare their closing argument. But has Roux made good on his promise? Has he favourably dealt with the damaging testimony of the ear witnesses? Has he proved Oscar could be mistaken for a girl when screaming for help? Has he proven that a wooden door sets of an explosion (essentially what a gunshot is) when struck by a wooden cricket bat? Or was his confidence in these outlandish submissions just a ploy by a very skilled advocate defending a client with a sieve of a story?

For those of us who remain less that convinced, Roux concluded his defence by alluding to potential witness having opted out of taking the stand at the eleventh hour. I suppose we are to believe these witnesses/experts would have dealt with these questions and their mere existence will hopefully cast a semblance of doubt.

So as it would appear, we have returned to the point of departure and arrived at Oscar vs the ear witnesses in a your-word-against-mine standoff, and personally, taking the whole trial into account, I don’t like Oscar’s chances against the word of the Ear Witnesses.



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