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Oscar Pistorius Trial: The invisible witness

How Pistorius Case Presents Skewed View Of S. Africa Gun Culture

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How Pistorius Case Presents Skewed View Of S. Africa Gun Culture

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PRETORIA, South Africa – On the night Oscar Pistorius fired four bullets through a locked bathroom door, claiming he feared an intruder was on the other side, his non-descript luxury house, with its putty-colored walls and neat lawn, was fitted with an alarm system and motion-detector beams that swept across his garden. The home also housed two pit bulls and the subdivision had a 24-hour security service on patrol.

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An aerial view of the home of Oscar Pistorius in a gated housing complex in Pretoria, South Africa. (AP)

So serious about security is Silver Woods estate, the subdivision where Pistorius lived, that even the movements of guards are tracked. To ensure they're doing rounds and not just pretending, guards are required to swipe an electronic key at specific checkpoints throughout the night.

Yet, as Pistorius tells it, all of those safety measures still failed to allay his panic on Valentine's Day last year, when he shot and killed his girlfriend Reeva Steenkamp.

While this fear may appear irrational outside the South African borders, inside them it's pervasive. So deeply engrained in South African society is this fear that the "imaginary intruder" appears as a recurring character in various accounts of violent crimes, even if its presence is entirely irrational.

On March 27, a 17-year-old South African boy was found guilty for the murder of a beautiful blonde girl named Marthella Steenkamp (no relation to Reeva), whom he shot dead.

The boy denied all charges, insisting for two years that there must have been an intruder in the house who carried out the crime; that he, too, was a victim of the attack.

Wrapping the young man's account of that evening around the fear of crime that persists throughout the country of South Africa, the trial hinged on answering the question: Was he a murderer or a victim?

In the coming weeks, Judge Thokozile Masipa will attempt to answer a similar question inside Courtroom GD when reaching a verdict in the trial of the country's most famous athlete: Did Oscar Pistorius murder Reeva Steenkamp or did he mistakenly believe he was the victim of a home invasion?

It is undisputed that Pistorius shot deliberately through a closed door, four times, knowing that he would kill or seriously injure whomever was on the other side, regardless of who was there.

Public fury has been unleashed at the possibility of a man who murdered his lover in cold blood; yet there has been little anger directed toward Pistorius for wanting to maim or kill the imaginary intruder, whom he had yet to even see.

In the front row of the public gallery, since the first week of the trial, several women have sat with Reeva Steenkamp's family. They wear the green uniforms of the ruling party's Women's League and greyscale portraits of Reeva, pinned to their lapels.

Speaking to the media outside the court, they say they are there because they are "everyone's mothers," there to make sure justice is done and that the rights of women are protected.

Midway through the prosecution's case, months away from a verdict, the government's department of social development declared that Steenkamp's killing had "once again put the issue of violence against women on the national agenda."

The government took the opportunity to launch a 24-hour "command call-center" to fight "the scourge of gender-based violence," quoting World Health Organization statistics that between 40 percent and 70 percent of female murder victims in South Africa are killed by their husbands or partners.

It is an easy narrative, one with undeniable dramatic panache: the Valentine's morning killing of a beautiful woman, by her lover, an international sporting icon and double amputee.

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Oscar Pistorius is charged with shooting Reeva Steenkamp through the door exhibited in court. (AP)

Yet it bypasses what is at the heart of the story: the unsaid assumption by a man whose insistence that if it were an intruder, the shooting – without warning, without identification, and through a closed Maranti door – would somehow be more acceptable.

Gareth Newham, who heads up the Governance, Crime and Justice division at the Institute of Security Studies in Pretoria, says it's about the narrative of fear, of the shadowy figure lurking in the bathroom. And despite statistics showing the contrary, deeply entrenched fears of violent crimes continue to persist throughout South Africa.

The majority of murders in this country – 65 percent – are committed by people who know each other, Newham says.

While there has been a 24-percent reduction in crime over the last 10 years in South Africa, house robberies have increased in that period by 95 percent, mostly perpetrated by armed gangs targeting middle-class homes, Newham says.

Still, home robberies in Gauteng – South Africa's most populous province, which includes the cities of Johannesburg and Pretoria, where Pistorius lives – only amount to around 7,000 a year, out of approximately 4 million households. And of those incidents, only two out of 100 result in murders.

Yet, according to South Africa's National Victims of Crime Survey, it is the notion of house intrusions and being confronted in a safe space that drives fear.

It is, as Newham says, the fear of "the other."

In one of the most unequal countries in the world – black households, which make up 80 percent of the population, earn on average a sixth of what white households earn – "the wealthier you are, the bigger the gap is between the perceived threat of falling victim to crime and the actual reality of it happening," Newham says. In other words, the richer you are, the more removed you are from reality.

"The highest violent crime rates are usually in poor, transitory communities, where you see conspicuous wealth that is in your reach, but you can't get it legitimately," Newham says. Yet in these poorer areas, people are more likely to be connected to their communities, and so have more of an accurate impression of the reality of crime.

Richer citizens who isolate themselves in gated communities are more likely to stay rooted in their fears, unrealistic though they may be. They can also afford to own guns – although those guns don't necessarily make you safer.

When Pistorius shot his girlfriend dead with his 9mm Taurus, he had another seven guns, worth nearly $7,800, on order – including several semi-automatic shotguns.

Lobby group Gun Free South Africa says that in South Africa you are four times as likely to have your gun stolen from you than to use it in self defense, based on research undertaken in 2000 and 2009. The ISS, Newham's think tank, says its research shows armed gangs often targeted homes where owners were believed to have guns in their possession, in order to steal them.

Pistorius is part of the less than 5 percent of South Africans who own guns; although, as became clear during witness testimony, many of his friends also carry firearms.

Race and class also change things, as nearly 20 years after the end of Apartheid, racial perceptions continue to play into the dynamics of fear.

In the leadup to Pistorius' trial, South African writer Margie Orford wrote of the "die swart gevaar," an Afrikaans phrase for "the black danger," coined during Apartheid to describe the threat perceived to be posed by black people to whites.

As several social commentators pointed out, after Pistorius and his friends took a gun into a busy bistro and discharged it by accident, they simply apologized to the manager and left. If a group of young black men had done the same, the consequences would have undoubtedly been more severe, with police being called to the scene.

She pointed out that in the athlete's narrative of Steenkamp's killing, the shadowy figure of the imaginary armed intruder – who many would immediately assume to be black – was playing into the same dread.

"In that unyielding construct of threat and danger, of your death or mine, there is no middle ground, no compromise and no space for thought or language," Orford wrote. There is only space for fear.

During his cross-examination of a police officer, Pistorius' defense attorney Barry Roux said the Paralympian had been a victim of crime "many times." It is something the athlete stated in his own bail affidavit, yet seemingly never reported to the police.

Roux says living in a security estate provides "no guarantee" that you won't be robbed. After all, as police officers testified, many of them were on the scene of a house break-in when they were called to redeploy to Pistorius' home on Valentine's Day last year.

But statistically, security estates are still some of the safest places to live. "You live there if you have money, because you want to be free from crime, to be able to sleep with your windows open, to not have to lock your doors," Newham says.

But, while it is fear that may have gripped Pistorius enough to pull the trigger – despite knowing all the security measures in his favor – it is that same fear that may save him from going to jail.

Legal experts say Pistorius' defense appears to be based on the principle of "putative self defense."

"Putative self defense" applies in situations where, despite all objective facts pointing to the contrary, an individual truly believes his or her life to be in danger, explains Llewelyn Curlewis, President of South Africa's Law Society. It may allow for a finding of "culpable homicide" – South Africa's equivalent to "manslaughter" in the United Sates – instead of murder.

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A member of the African National Congress Women's League wears a picture of Reeva Steenkamp. (REUTERS)

Under South African law, Curlewis explains, for self defense to be applicable, "Your life must be in danger, the threat must be real an immediate, and you must be able to perceive it." The possibility of bodily harm is not enough, a person must fear for their life, he says, and even then there are requirements and limitations.

As it would have been nearly impossible for the athlete to perceive an immediate threat to his life through the closed door he fired through, Pistorius' defense rests on his ability to prove his state of mind in the pre-dawn hours of Valentine's morning.

Even then, several other questions arise, says Curlewis.

• Was the threat immediate?

• Could he have left and called the police?

• What were his options?

• Why did he not fire a warning shot?

And even if – hypothetically – Pistorius had shot an intruder in his toilet, instead of his girlfriend, ultimately, it could still be murder.

The charge of "murder" in South African law is based on the level of intent to cause a person's death, and there are three potential possibilities, Curlewis says.

Dolus directus – which the state prosecution is pushing for – represents direct, premeditated intent, and carries a mandatory life sentence in prison. Premeditation could take only seconds, Curlewis says, as it is based on whether a decision was made with rational thought, during the time an individual goes to collect a gun, for instance.

Dolus indirectus is relevant when an individual doesn't intend to kill a particular person, but causes death, such as in the instance of a random shooting in a public place, explains Curlewis.

And dolus eventualis – where an individual foresees a possibility that a specific set of events resulting in death can occur as a result of their actions, and he or she recklessly proceeds anyway – is also considered murder.

If found guilty of non-premeditated murder, Pistorius would face at least 15 years in prison, Curlewis says.

For now the trial continues, with proceedings to resume on April 7. First on the defense's witness list will be a pathologist, with Pistorius expected to follow.

When he does finally take the stand, he will have some difficult questions to answer. But ultimately his fate will hinge on one thing: whether or not he can convince the court that his fear of the imaginary intruder was real.


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