To call a witness - or not

2014-05-08 22:05
Oscar Pistorius and his defence attorney Barry Roux attend his murder trial at the high court in Pretoria. (Alon Skuy, AP)

Oscar Pistorius and his defence attorney Barry Roux attend his murder trial at the high court in Pretoria. (Alon Skuy, AP)

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Pretoria - Lawyers are understood to never bring a witness to stand where they cannot predict the answers that they will get from them.

They have to know beforehand that what the person will say will bolster their case or help defeat whatever points the other team in the legal matter. This is usually understood in a negative sense, that your witnesses shouldn’t undermine your case.

An unexpected witness at the Oscar Pistorius trial gave us a glimpse of this principle on Thursday.

Yvette van Schalkwyk is a social worker with more than two decades of experience, and examined Pistorius soon after he was arrested for killing Reeva Steenkamp. Yet she only stepped forward as a witness in the last 72 hours – more than a year after the arrest – because she was distressed by what she was seeing in the media.

More specifically, she was referring to an article by Jani Allan that asserted that Pistorius’s great displays of emotion are insincere, and show that he’s been coached. “I have it from a reliable source that you are taking acting lessons for your days in court,” she wrote in an "open letter", published on her blog. This coach is apparently one of her friends.

“Oscar, I look at you mewling and puking in the witness stand. You truly represent everything the West loathes about white South Africans who live extravagant lives in expensive laagers,” she wrote.

That might have been that, and truly worse things have been said about the double-amputee in the press, but Van Schalkwyk wanted to testify that this was untrue. According to her, when she was examining him in the days and weeks after the incident, he was clearly upset by what had happened.

Gerrie Nel

Then the State prosecutor Gerrie Nel went to work. He got her to admit that her vivid portrayals of a distraught Pistorius in the reports she compiled after examining him, that this was actually the first time that she worked with an accused directly after an arrest.

So she couldn’t say that his behaviour was typical or not.

Van Schalkwyk then offered this after being asked what Pistorius said to her when she first saw her.

“He said that he accidentally shot her,” she replied. It was an interesting frame of words because it seemed to leave out the imagined intruder part. Was this a suggestion that what was being said in court by the athlete wasn’t the full truth?

But Pistorius’s defence landed on their feet. Under cross examination from Barry Roux SC, Van Schalkwyk said that later onward, Pistorius mentioned the feared intruders.

So where does this leave us?

Probably exactly where we began before Van Schalkwyk testified. Allan’s theory about acting lessons for Pistorius is likely to be neither here nor there as Judge Thokozile Masipa will focus on other aspects of the case to reach the truth and make her decision.

If it wasn’t for the admission, one feels that the lawyers on both sides might have taken umbrage to what could be described as the incursion of popular gossip and conjecture into a serious case.


On the other hand, the testimony of Christina Lundgren was far more influential. She’s an anaesthetist from the University of Witwatersrand.

She was called by the defence to testify after state pathologist Gert Saayman testified weeks ago that Steenkamp had food in her stomach, which suggested that she had been up eating a few hours before dying, and not asleep since at least 22:00 the night before, as Pistorius contended.

This is a crucial point.

If Steenkamp was up as late as two hours before she died, and this can be proven in court, it effectively destroys Pistorius’s contention that he thought she was in bed at 03:00 when the bullets flew.

It introduces the spectre of some kind of argument or coming together that ended up with her death. Therefore, a large amount of time was spent on the science of gastric emptying.

We learned that it is not an exact science at all, to the point that even though Saayman qualified his views to the court, Lundgren wouldn’t specifically contradict anything he said.

There are any number of things that could affect how quickly one’s stomach digests food. This includes what type of food it is, and even the physical state of the person at the time.

A person exercising would digest food slower than someone who is physically passive, for example. (Steenkamp apparently did yoga that night.) Pre-menopausal woman also digest slower.

Nel took a novel approach to deciding this issue – he said that if 200ml of food were found in Steenkamp’s stomach at 03:00, and considering that a normal digestion time could be up to eight hours, did this not say that she either ate later than 19:00, or must have eaten 4l at that time?

The second theory was the least probable one, Lundgren said.

Roux then used the same tactic to show that Nel was just speculating: you could say that if 200ml of food were found in Steenkamp’s body, then she could have eaten 5 litres of food at 01:00.

Unless we get further clarity on this issue, this could be the basis for Masipa’s decision making.

Science and its experts may have not been as illuminating as the State [or indeed the defence] hoped.

Read more on:    reeva steenkamp  |  oscar pistorius  |  pretoria  |  pistorius trial

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