Justice, mercy in equal measure

Oscar Pistorius. Picture: Masi Losi/Pool
Oscar Pistorius. Picture: Masi Losi/Pool

High Court Judge Thokozile Masipa may be the only person in the world who has considered both sides of the Oscar Pistorius story.

In all the many and varied interactions I have had with people during the course of the spectacle, I have never come across someone who has said: “Well, I’m really in two minds about it”, or “Well, on the other hand ...”.

For the lynch bunch, it was always clear that nothing less than the minimum sentence of 15 years would suffice.

In contrast, the former Paralympian’s supporters were always ready to see the best in Pistorius and the worst in the family of his slain girlfriend, Reeva Steenkamp. Most of them would grudgingly admit that Pistorius needed some sort of punishment – maybe a month’s house arrest at Uncle Arnold’s mansion, teaching children how to pet bunnies every day.

I omit the small but rabid group of Pistorians, for whom the only sentence would have been a verdict of not guilty, along with a grovelling apology from state prosecutor Gerrie Nel.

The court of public opinion continued to dominate after Masipa handed Pistorius a six-year sentence on Wednesday.

Despite some considered criticism, especially in relation to the Supreme Court of Appeal’s decision to overturn Masipa’s culpable homicide conviction, the general torrent of smug vitriol was breathtaking.

Seemingly forgotten was the admonishment by Chief Justice Mogoeng Mogoeng that criticism of court judgments should be substantiated.

Perhaps the most staggering consequence was the plethora of wildly arbitrary comparisons with verdicts in vastly different cases.

My favourite was the comparison with a 77-year sentence for the crime of “rhino poaching” – a conviction which included a murder committed in a gunfight, along with many other offences such as theft, trespassing, illegal hunting and the unlawful possession of firearms.

This is not to suggest inconsistent sentences in cases cannot or should not be criticised. In fact, the SA Law Reform Commission recognised such public criticism in 2000 in relation to “like” cases.

The commission recommended comprehensive reform of the South African sentencing regime, including the development of guidelines to reduce inconsistencies.

But who knows what becomes of such good ideas when presented outside the realm of a particular controversy?

Here’s the rub. If you become the accused in a matter, and you have a half-decent lawyer – which, admittedly, most of the accused in this country do not have – you may get to appreciate the discretion that the judge has to consider your particular circumstances, because they involve your interests.

This situation also makes it easier for judges, who are tasked with trying to sort the messy, infinitely varied circumstances and actions of humans into legal boxes.

But if you are a layperson raining fire and brimstone on the accused’s head, it’s easy to criticise the consequences of the court’s discretion, recognising that inconsistent sentences are at odds with the constitutional right to equality before the law.

When Masipa considered both sides of the Pistorius case, she did so because the law requires her to consider, among other things, the interests of society and the personal circumstances of the accused.

Did I agree with the sentence? No, I thought it was far too light.

From my reading of it, I did not get the sense that Masipa paid due regard to the fact that the legislature has singled out murder for a particularly harsh sentence in terms of minimum sentencing legislation.

A judge is still required to consider that, even after having decided not to impose the minimum sentence.

But I am not Judge Masipa, at the centre of all the evidence.

Let me direct you to the textbook commentary on sentencing: “In this process the personality of the sentencing official plays an important role.” (Criminal Procedure Handbook, edited by JJ Joubert)

Perhaps – and I am speculating here – when taking all the evidence into account, Masipa, who suffered the debilitating effects of having polio as a child, saw something in the struggles of a double amputee that I cannot see.

The Constitution embraces diversity in calling for a broadly representative judiciary, recognising that a black female judge who hails from the rural Eastern Cape, a blind Indian judge who comes from Durban and a white male judge from Sandton all bring something unique to the table.

Constructive criticism of the many and significant shortcomings of our justice system – including the preferential treatment of the politically, structurally and financially privileged – should always be front and centre.

But the aftermath of Masipa’s judgment has not been about that.

Instead, it has been about the vilification of a judge, seemingly based on the notion that she should have “charged” Pistorius with the shortcomings of the entire justice system and South African society in general.

I realise that sentencing will always be controversial, but the Pistorius case taught me more about the South African public’s approach to justice than about the justice system.

The public, divided as it is, decides whether an accused “belongs” to them – often, but not always, on the basis of race.

The absolute destruction of the accused beyond any hope of redemption is then required – or, on the other hand, his or her absolute acquittal – based on that classification.

Justice, in our estimation, is not about the extension to all of the constitutional rights we promulgated, after having been subjected to the gross abuses of law perpetrated by the apartheid government.

Rather, these rights appear only to apply to those we deem “worthy” of them.

What I was left with, in the wake of the Pistorius debacle, is a lasting reminder that the South African public’s idea of justice differs markedly from the noble words uttered by former chief justice Arthur Chaskalson in another case, now relegated to a seemingly distant past:

“It is only if there is a willingness to protect the worst and the weakest among us, that all of us can be secure that our own rights will be protected.”

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