JAUNDICED EYE

Last Wednesday was paralympian Oscar Pistorius’ 31st birthday. His gift from the Supreme Court of Appeal only reached him belatedly on Friday.

It was a judgment, taking only minutes, which more than doubled his jail sentence for the Valentine’s Day 2013 murder of Reeva Steenkamp. The court handed down the minimum 15-year sentence prescribed for murder, then subtracted the jail time Pistorius had already served.

The parakiller could have been released on parole in mid-2019. Now, the earliest he will be eligible for parole is 2023.

With this judgment, the space for judicial wriggling by Pistorius all but disappeared. Only the Constitutional Court remains as a final appeal destination and it has already once refused to hear him. 

Pistorius was not in court for the SCA decision, so one can only speculate about his mental state as he comes to terms with spending some of the best years of his life between bars. Certainly, the judgment effectively nips in the bud any hopes he might have had of resuscitating his athletic career upon release some day.

But there is also chagrin aplenty for another high-profile person. High Court judge Thokozile Masipa, whose every important ruling in the Pistorius case has at some stage been reversed on appeal, must now surely share Pistorius’ bleak career prospects. 

Masipa initially found Pistorius guilty of culpable homicide. Despite describing Pistorius as a “very poor, evasive” witness she gave him the ludicrously light sentence of five years for killing his girlfriend by firing four high-calibre bullets into her through a lavatory door.

Masipa went on to compound her leniency by allowing part of the sentence to be served under correctional supervision. After a mere 10-months in prison – and before the appeal process was completed -- Pistorius was released and put under house arrest.

Fortunately, Masipa’s celebrity dazzle also blinded her to the finer points of the law. Although she had refused the state’s bid to appeal the sentence, she did allow their appeal on conviction. 

In 2016, the SCA ruled substantively in favour of the state on the points of the law on which they had challenged Masipa. Most importantly, the culpable homicide finding was also reversed, to be replaced with a murder conviction

This meant that Masipa would have to fashion a new sentence. Given a chance to rescue herself from the hole she had put herself in, Masipa just dug deeper. 

A murder conviction carries a prescribed minimum sentence of 15 years in jail. Despite the fact that Pistorius failed to give evidence – an extraordinary decision, since this was his opportunity to paint luridly his remorse – Masipa decided that there were indeed “substantial and compelling circumstances” justifying a lesser sentence. 

Pistorius had felt sufficiently vulnerable on his stumps at the thought of an intruder locked in the lavatory, to open fire. And it “weighed heavily” with her, she said, that Pistorius had made several attempts to apologise to the Steenkamp family, which must be “one of the most difficult things for any accused to have to [do]”. 

The Pistorius whom she describes in her judgment, is not the selfish, reckless man of the evidence. He is, rather, the agonised protagonist in a Shakespearean tragedy. 

“He is,” she gushed, “a fallen hero… He has lost his career and is ruined financially. The worst is that, having taken the life of a fellow human being … he cannot be at peace.” 

Pistorius, she said, had also made the “noble gesture” of doing community work as punishment. All of this, Masipa concluded, justified a sentence of six-years imprisonment, which was so legally sound, in her view, that she refused the state leave to appeal. 

The SCA, however, shattered all Masipa’s sanguine assumptions. First, they overturned her ruling on the appeal against this bizarre sentence and agreed to hear the state’s bid. And now they have blown that sentence out of the water, ordering that Pistorius serves what is effectively a 13-year five-month sentence.

Pistorius, the five SCA judges ruled unanimously, “displays a lack of remorse, and does not appreciate the gravity of his actions.” Masipa had “overemphasised” his mitigating personal circumstances and “misdirected [herself] in [her] assessment of an appropriate sentence”.

“The court seemed to have given rehabilitation undue weight as against the other purposes of punishment being prevention, deterrence and retribution… The sentence of six years' imprisonment is shockingly lenient to a point where it has the effect of trivialising this serious offence.”

At one stage, Pistorius said that he was certain Reeva would not have wanted him to waste his life behind bars. While we unfortunately cannot canvas her opinion from beyond the grave, in a way he is getting his wish.  In approximately six years and eight months, the Blade Runner will again slide into society. 

As for Masipa… Well, it will be interesting to see what cases she presides over, after this monumental series of cockups.

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