Oscar Pistorius - Justice?

The Bail Hearing of Oscar Pistorius has produced a number of elements that are extremely disturbing to anyone who believes in the system of justice, such as it is in South Africa.  The normal red herring has been raised, that the Magistrate must take into account the fact that the alleged crime was directed against a woman.  That is a red herring that should never be allowed in a civilized society.  It has no place in a Bail Hearing.  The prevention of crimes against women belongs to the prevention of crime and to the Policing system.  It is no longer relevant in a Bail Hearing, where the sole factors relate to the questions of whether an accused who is released on bail will attempt to interfere in the proceedings of the investigation, such as inducing witnesses to structure their possible evidence to the advantage of the accused, or whether the accused is likely to attend the trial in due course.  The fact that the deceased person is a woman is not relevant to either of these questions in the vast majority of cases.

The presence of the Minister for Women’s Affairs at the Bail Hearing is equally disturbing, giving the Defence a possible claim that her presence in a trial (- a Bail Hearing is, to some extent, a trial, as the evidence and findings may be incorporated in the criminal trial) had the effect of placing undue pressure on the Court.  This is tantamount to the comment made in the Shri Indavani case, when the Commissioner of Police put his foot into the Prosecution’s case by making irresponsible statements, for populist reasons.  Is it not time for the responsible politicians and Ministers to be given training in what they should and should not say and do?

Another question that must be asked is what exactly is the crime that is alleged to have been committed?  Several commentators have stated, in the learned tones they affect, that the charge should be Culpable Homicide, as the Accused has, apparently, claimed that he thought he was shooting through a locked bathroom door at an intruder.  One wonders whether the distinction between murder and culpable homicide lies in the fact that the Accused knew the deceased!  One shot through a door might be construed to constitute the unintended killing of the person on the other side of the door.  Surely four shots must be a good indication that killing was intended, whoever the person behind the door might be.

The conduct of the investigation by the Police shows clear evidence of a badly bungled investigation of the incident, with many mistakes and omissions which show a clear lack of investigative training.  These mistakes and omissions, in the lack of competent prosecuting and defence capabilities could easily lead to a wrong verdict being arrived at in a criminal trial.  These possibilities seem now to have been ruled out in the case under discussion, but one would be justified in taking the view that there must be numerous cases where a wrong verdict was given, and criminals set free or innocent persons convicted unjustly.  This view is exacerbated by the apparent suppression of relevant evidence by the Police in presenting their case.  It is of critical importance that the South African Police Service understand at all levels that their function is applying the law, not simply obtaining a conviction at any cost!

One hopes that the Bail Hearing and Trial of Oscar Pistorius will go down in the annals of the Rainbow Nation as an example of the effectiveness of the Justice system.  Unfortunately, the record to date does not give much reason to hope that this will be the case.