Publications
Partners
When the Supreme Court of Appeal converted former Paralympian Oscar Pistorius’ culpable homicide conviction to murder, judges went out of their way to protect the standing of High Court Judge Thokozile Masipa, saying their decision should not be seen as an adverse comment upon her competence and ability.
They lauded Masipa for conducting the athlete’s trial “with a degree of dignity and patience that is a credit to the judiciary”.
But they were harsh in referring to the errors of law that had led to her convicting Pistorius of a lesser offence, leaving him with a light jail sentence of five years.
The matter went back to Masipa for sentencing on the correct conviction. After hearing arguments from the prosecution and the defence on Wednesday, the judge looked kindly on the murderer and gave him a six-year sentence.
In doing so, she dug deep into the law books and case law to justify her conviction of the man who pumped four bullets into his girlfriend Reeva Steenkamp’s body.
She also dug deep into her reservoir of empathy to find that the mitigating factors outweighed the aggravating ones.
In deviating from the 15-year minimum sentence for murder, Masipa said there were “substantial and compelling circumstances” – because he was a double amputee who felt vulnerable when he believed an intruder was in his house; because he had pleaded with the first responders to save Steenkamp and shown remorse by trying to contact her family to ask for forgiveness; because he was a first-time offender who was “unlikely to reoffend”; and because had served 12 months of his culpable homicide conviction.
Ignoring his vulnerabilities would be “an injustice”, she said, adding that “a long term in prison will not serve justice”.
This newspaper would normally not join in the chorus of condemnation of a reasoned judgment.
As Masipa correctly said: “Courts are courts of law, not of public opinion.” As citizens, we should respect even those judgments that offend us deeply.
Where we diverge is when we consider her failure to recognise that the courts should also foster public confidence in the justice system.
Twice on the same matter, this respected judge has let her empathy trump her understanding of the law. In doing so, she has grossly undermined the view that we are all equal before the law.
The rule of law deserves better.
