I am not a judge, and in fact I have never been trained in any legal trade. However, I am not stupid.
Perhaps it is because of this, that like many people, I am upset by the recent court fiasco in which former para-Olympian Oscar Pistorius was given a mild slap on the wrist for the death of his girlfriend Reeva.
It weighs heavily on my mind. In fact, the injustice that I feel has been done is quite upsetting to me. Then again, I console myself that in the end, it's not really my problem. After all, I'm okay - I haven't been shot in my own bathroom, and neither am I likely to just go on a shooting spree if I hear things going 'bump' in the night.
Why am I upset about the light and frivolous sentence dished out by the court? Why am I upset at the apparent efforts by the court to bend over backwards to give Oscar Pistorius a light sentence so he can go home to serve out a portion of his sentence under house arrest?
I'm upset because I feel that "restorative justice" is being misinterpreted by the Justice as applying to the perpetrator in line with 'rehabilitating' them, molly coddling them, when it really is meant to apply to the victims and the families of the victims in applying fitting punishments to the perpetrators and in providing at least some restoration of what they have lost.
I saw the newspaper headlines today (a complete waste of paper and ink) saying that poor "Oscar cried himself to sleep" last night. Shame. Poor little Oscar. Never mind, he will probably be out on parole in a few months, and he may even get paid a fortune to write a book about his terrible experiences - or a movie deal.
But I digress - why am I upset?
I suppose it's because of the curious sense of justice we have in South Africa nowadays.
The victim is dead, and she won't ever get out on parole, or be let out in a few years (or months) to carry on with the life which HE took. She won't be able to provide for her parents anymore - what about applying some "restorative justice" in the interests of the victim and the victim's dependents and family?
The life of someone killed brutally by an idiot with a gun (who has made a habit of abusing a gun) on some sham excuse of being 'afraid of a burglar' seems to mean nothing to the law, which appears to be consumed with pandering to the 'human rights' of the perpetrator and whining about how "sorry" he is for his acts and about protecting his 'feelings'. What about the victim's human rights? What about the effects on her family? What about their feelings? What about how sorry they are for her death?
I find this whole fiasco upsetting because the failure of the state to address crime and the failure of the judiciary to reward criminal acts with appropriate sentences results in less deterrence against crime. What do criminals have to fear if they know they won't face lengthy jail time? This is relevant because it affects all of us - it sets a dangerous precedent in law and sets a trend which further enables criminality.
It is demoralizing to the police also - who spend their careers chasing murderers, rapists and gangsters, and arresting them - only to see them walk free after receiving inordinately light sentences from the courts, or early releases from the crumbling prison system - and sometimes, are even released by the President on acts of 'goodwill'. Goodwill to whom? The public? Yes, I can see why the police could be tempted, increasingly, to give it up - because the system doesn't support them either.
"Judicial Jackassery" is an American term that fits quite nicely in this case, but the fault I see is not just with how the case was handled - as a media circus, but also with the apparent and complete lack of public appreciation for the law. I haven't once seen anyone in any comments posted about this ongoing case mention the aspect of firearms control or safety laws.
When I consider the firearms control Act which was mentioned several times in the judgment and sentencing, and also by the prosecution after sentencing, it seems fairly obvious that this was not just some 'accident'. An accident is falling off a bicycle or walking into a door. Perhaps even, on a battlefield, a soldier might accidentally shoot someone standing next to the enemy soldier they meant to - but to take out a gun and aim it at a closed bathroom door and just randomly start blasting away at it, is no fucking accident.
This man fired FOUR times through a closed door to shoot someone on the other side. There was clear intent to maim or kill whoever was on the other side of it. That was no accident, even if it was tragic and unnecessary. Even if the person he intended to kill was not his girlfriend, his intent was to kill someone.
Consider this scenario for a moment:
I take my gun out of my safe, and walk into the street. I stop the first person I meet, and shoot them dead. I have fired one shot. I have just killed someone I never met before, without either of us saying a single word.
Now ask yourself - is this "manslaughter"? Or is this murder? Was it premeditated?
Is this any different in principle to what Mr Pistorius did? If so, why?
When you own a firearm, you renew your license every few years, and you take a test which covers the legal aspects of using your firearm. Let's look at this point - from a layman's point of view of course - since according to the clever people with high brows and spectacles at the tips of their noses, I am just an idiot who doesn't know anything about the law.
If you are using a gun for home defense, we all know by now that you cannot just shoot someone for entering your home without permission, even while you are still inside it. When you suspect there is an intruder in your house (however you really do it in practice) you are SUPPOSED to call out to ascertain if someone is in the house, determine if they are armed, and warn them that YOU are armed. If you DO see them, you need to warn them again and if you fire a a warning shot you must aim at the floor - not into the air, or the roof, or a wall - or a door(because of the risk of hitting a bystander as in the case quoted at length by the judge during sentencing). Lastly, ONLY if that person rushes you despite your having followed all these other steps, are you justified in shooting at them - with emphasis on bringing them down, not necessarily on killing them.
Now, if you can't see the person, how can you determine there is someone there, that the person is an intruder, or if they are armed? Further, if they are are not rushing you, or shooting at you, or threatening you - or if they are hiding in your toilet behind a closed door, then how are they an IMMINENT threat to you?
If he was so afraid as he claims, why did he not then look for his girlfriend and make an escape outside through the front door?
Even in the sentencing, it was confirmed that Pistorius fired through the door with the intention of shooting whoever was on the other side. Believe me - many, many people die after just being shot once. The human body is pretty robust, but those little lead pellets can kill us pretty easily. He blasted four of them through a wooden door, knowing there was someone behind it - even though he could not see who it was, or if they were armed, and even though they had no place to hide to avoid being hit.
Knowing that his girlfriend was in the house with him, and his failure to ascertain her exact whereabouts before acting like the Terminator, was gross negligence on his part.
Further, if someone has a history of abusing a firearm in a PUBLIC space, such as a restaurant, surely this should have been brought to the attention of the authorities earlier? Say, before he went on a rampage in his home? All the mumbo-jumbo about psychological scarring from his childhood aside - if someone has psychological instabilities from childhood, and probably even a history of psychological trauma, HOW do they manage to acquire a firearms license to begin with? Is psychological instability not part of the screening process during the application phase? Following procedure could even have saved the victim's life.
Viewed in the light of responsible firearm ownership, this is no 'tragic accident' by any means. This shows deliberate intent to kill - the fact that it was his girlfriend whom he killed, appears to have been allowed to overshadow the issue and to cloud the court's judgment. Of course, he may be sorry he killed her - but would he be sorry if the person he killed was not his girlfriend?
The idea of mercy has been taken out of context in my view - the mercy the court felt compelled to show, should've been directed at the victim and her parents, not at the perpetrator.
So... manslaughter versus murder. The court said 'manslaughter' - and although they are the clever folks with the degrees in the field of 'justice', I still feel they let a murderer off the hook because the only 'accident' was that he killed the wrong person - someone who wasn't the burglar he thought she was.
With all due sensitivity, whether or not Oscar Pistorius intended to kill Reeva Steenkamp is beside the point - the point is, that he intended to kill whoever he thought he was shooting at - in direct contravention of all applicable laws.
And that's murder.
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All material copyright © Christina Engela, 2019.
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