When Pretoria’s court GD adjourned on Friday, Oscar Pistorius had completed the journey from global icon to a “little boy with no legs” who had been suffering the same “slow burn” as an abused woman.
Pistorius’ life-long battle to beat his disability had been reduced to little more than a “pretence” by the athlete’s defence, in an attempt to explain his conduct on the night Reeva Steenkamp was shot and killed.
While Pistorius gained international-hero status for his bid to compete on an equal footing with able-bodied athletes on the world stage, his disability runs through his defence like a golden thread.
This much was made clear by Advocate Barry Roux on Friday, when he emphatically argued that Pistorius was a “little boy without legs”.
He said Pistorius faced “the constant reminder that I do not have legs, I cannot run away, I am not the same. He can pretend! He can pretend that he’s fine and that he’s wonderful with his legs on.”
Pistorius appeared to shrink in the witness box as Roux delivered this speech.
The athlete’s shoulders slumped and he looked down to the ground, unmoving.
Roux told the court that this “slow burn”, from facing a hostile world without the ability to escape, had propelled Pistorius down the passage to the darkened bathroom with a gun in his hand, ready to shoot.
When startled, argues Roux, Pistorius does not have a flight response – only a fight response.
At this point, Pistorius’ defence stands on two legs.
Roux said Pistorius stood in the bathroom, with the “effect of the slow burn over many years, you’re anxious, you’re trained as an athlete to react to sound, and he stands now with his finger ready to fire if necessary and then?...?[BANG]”.
Roux slammed his hand down on the podium.
“Two things can happen. In some instances, a person will fire reflexively and in some instances not?...?[Was] that shot reflexive alone, or was it combined with a cognitive thought process?”
Roux argued that if Pistorius fired purely as a reflex, he could not have criminal capacity because his exaggerated reflex reaction prevented him from acting in accordance with what he knew to be wrong.
This is one of the “two legs” of criminal capacity. In this case, he should not be found guilty.
“[But] if the [court finds the shooting] was reflexive, but there was also a thought process, then you cannot ignore the reason for the shot, then you have to look at putative self-defence.”
Putative self-defence is a type of legal defence in which a person believes his life is in danger, even though he is not actually attacked.
Here, Pistorius’ disability again played a role.
If Judge Thokozile Masipa believed Pistorius honestly thought his life was in danger and there was somebody coming out of the toilet to attack him, he could at worst be guilty of culpable homicide – or negligently killing a person.
Pistorius’ heightened startle response to danger, and the “slow burn” of anxiety and fearfulness, was important here too.
The test to determine if an accused person was guilty relied on what a reasonable person in the same set of circumstances as the accused would do.
“One must place the reasonable disabled person, who would be vulnerable and be very anxious, at the entrance to the bathroom?...?We respectfully submit that [Pistorius], in the peculiar circumstances and having regard to his disability and the effects of such disability, did not act negligently,” argued the defence.
But state prosecutor Gerrie Nel has taken a dim view of the defence’s two-legged argument, saying the two defences were “mutually destructive” and came about as a result of Pistorius’ poor performance on the witness stand.
“The accused’s vacillation [between] defences is much like saying to the court that you were not on the scene of the crime but, if the court finds that you were, then you rely on an added defence, that of self-defence,” the prosecutor said.
Nel maintained that a disabled Pistorius “can’t get away from the fact that he knew there was a human being in the toilet. My Lady, with the utmost respect, if somebody shoots and kills someone like he did in this matter, there must be consequences for that.”
Judge Thokozile Masipa will decide what those consequences are on September 11, when she hands down her judgment.
