Discussion between the verdict and sentencing

[jilly]

I was stunned to find this out.

I read the judgement and was so alarmed at the poor quality of legal reasoning and evidential analysis that I checked her CV. I thought maybe she might have a commercial or other background and was somewhat new to criminal.

But it turns out she is just wildly under-qualified.

I presume this is a just a result of the massive changes in South Africa.

NZ in the 2010s is able to promote top talent from year groups in the 1980s. People I graduated with in the mid 90s are still some way off Judge.

SA does not have that luxury (yet).

But surely surprising she would be considered for this case.

I wasn't but then I didn't find this article until after the verdict because I was searching for her background. At that time I found it hard to believe she was even a lawyer and figured her appt had to be political.
Anyways, she does have her law degree which took 10 yrs, but 7 yrs as a lawyer and a leap to the High Crt??? C'mon.
At the time Masipa was named as the presiding Judge, all we heard was that she was tough on violence against women and the heavy sentences she handed out. She appears to have gone from one extreme to the other and my gut tells me there's still more to the story.

 

[Sherbert]

Unfortunately, I can't find much info on her criminal trials, but Masipa was the first instance judge in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties39 (Pty) Ltd and Another ("Blue Moonlight")

'In Blue Moonlight, most of the occupiers did not have formal employment...Several resided on the property for many years and all submitted that on their eviction from Saratoga Avenue they would be homeless. They lived at the property with the permission of the owner until 1999 and paid rent to at least two different letting firms until 2004, when the property was purchased by Blue Moonlight with the intention to redevelop it. Blue Moonlight sought their eviction as early as June 2005 and in 2006 commenced eviction proceedings in the High Court under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, 19 of 1998 (PIE).

4. The High Court ordered their eviction and found the City's housing policy unconstitutional to the extent that it could not accommodate the occupiers since they were being evicted by a private landlord. The City was ordered to remedy the defect by providing the occupiers with temporary emergency alternate accommodation and also ordered to report to court on the steps it was taking to house the occupiers. The High Court also ordered the City to pay rental to Blue Moonlight for the continued occupation of its building, since Blue Moonlight had no obligation in law to continue housing the occupiers rent free.

5. The City appealed to the Supreme Court of Appeal (SCA) that part of the High Court order declaring its housing policy unconstitutional and the ruling that it pay rent to Blue Moonlight. The SCA upheld the eviction, set aside the rent order but in similar vein as the High Court found the City's housing policy unconstitutional for excluding the occupiers from consideration for temporary housing...'

http://www.mondaq.com/x/187168/Constitutional+Administrative+Law/City+of+Johannesburg+Metropolitan+Municipality+v+Blue+Moonlight+Properties+39+Pty+Ltd+and+Another+CCT+3711+2011+ZACC+33+1+December+2011+A+Practitioners+Note

Of course, a murder trial is a different kettle of fish altogether, which is not to say that she hasn't acquired relevant experience in the six or so years since her involvement in this case.

 

[foxbluff]

Can you explain please foxbluff. :thinking: Can I just answer what I think you mean, that the PT and DT did not prove to J Masipa that there was another person on the premises, so it's not her mistake? Hmmm, yes, I agree.

Common cause - what is agreed

http://www.paralegaladvice.org.za/docs/dictionary.html

Dang you Prime... :floorlaugh: you would have to go and ask me to explain myself when you know how difficult that is for me !!

Okay... here's goes... it's not the Judge's job to play detective. Since both Nel and Roux agree that OP and RS were the only two people in the house that night, I think the Judge has to accept that as a given.

Here's an example of each lawyer stating that there were only two people in the house:

From Roux's Heads of Argument: 25. The screaming after the gunshots (the first sounds) heard by witnesses could only have been the Accused, as he was the only other person in the house. His shouting and screaming was to be expected after he had discovered that he had shot the Deceased.

From Nel's HoA: A. INTRODUCTION 6 There were only two people in the house at the time of the murder and, since the accused is the sole survivor, he is the only person able to recount a version of the events to the court.

 

[Britlaws]

If you go here http://www.saflii.org/cgi-bin/search.pl you can search for judgements by judge. I can't see any from the list for Masipa J that are obviously criminal cases apart from one. I had a read of the Eskom case some time ago, as I was interested (my area of law). I might read a few more out of interest but no time at the moment. One thing that struck me, although there could be another judge with the same name, is that she seems to have been quite busy this year, despite the OP trial (filter the search by date).

 

[MURDERER_SERVANT]

Thanks for sharing yr charts Mr Fossil.. brilliant work..
:cheers:

 

[Deleted member 102539]

Quick question and I apologize if this has been asked already.
I've read two recent articles that are interviews with Barry Steenkamp, Reeva's father.
He mentions that he and Reeva's mom believe there is more to the story that wasn't discussed in court.
He also said if Oscar is watching (to the interview being given) then he'll know what he's talking about.
What does Barry know???

"but things did happen, and things happened there that haven't been brought up, I know that," said Barry."


"I think there was more to the whole story coming up to the actual shooting, the killing. If he's watching, he'll know what I'm talking about."

Articles I'm referring to:
1) http://www.sportsmole.co.uk/off-the...ther-questions-pistoriuss-version_178621.html

2) http://www.theweek.co.uk/world-news...pistorius-trial-there-is-still-a-missing-link

Alcohol, drugs or Reeva's threat to call police - maybe? Barry knew his little girl and probably he knows, what problem Reeva might have had with OP.

 

[Cherwell]

it's not the Judge's job to play detective. Since both Nel and Roux agree that OP and RS were the only two people in the house that night, I think the Judge has to accept that as a given.

Here's an example of each lawyer stating that there were only two people in the house:

From Roux's Heads of Argument: 25. The screaming after the gunshots (the first sounds) heard by witnesses could only have been the Accused, as he was the only other person in the house. His shouting and screaming was to be expected after he had discovered that he had shot the Deceased.

From Nel's HoA: A. INTRODUCTION 6 There were only two people in the house at the time of the murder and, since the accused is the sole survivor, he is the only person able to recount a version of the events to the court.

Exactly! Why, why, why was this LIE told by both sides?

I can understand why both might hesitate to call Frank as a witness, but why would the Prosecution in particular deny his presence? Why not enter into evidence a signed statement that he heard nothing? If he was prevented from this in some way, or refused to cooperate, this should have been laid before the judge.

 

[Lux et Veritas]

I'm reading through Judge Masipa's judgement again, I'm a glutton for punishment..... so this really irks me...

1. At the time of the incident there was no one else in the accused’s
house except the accused and the deceased. Therefore it could only
have been one of them who screamed or cried out loud.

Frank Chiziweni was sleeping on the premises, I can't understand why J Masipa discounts him. Does not compute. No matter he claims to have heard and seen nothing, he has to be accounted for otherwise it's an misrepresentation of the facts of that night, so what else is missing? It looks to be a sham, smoke and mirrors. :banghead: JMO

http://www.pod702.co.za/Eyewitnessnews/docs/140915OPJudgment.pdf

Worse, never does Masipa ever consider that BOTH of them could have screamed or cried out loud (witnesses testified to hearing intermingled voices).

That she failed to even consider this possibility is further proof of her severely biased and beyond irrational reasoning. Her rationale throughout most of the verdict was bizarre to the point of absurdity - so many points had nothing to do with law, but simple common sense.

She was bound and determined, by fair means or foul, that only ONE person screamed/cried that night and that person was Oscar.

Forget an appeal - they need to remove Masipa from the bench and declare a mistrial.

 

[delilah]

Exactly! Why, why, why was this LIE told by both sides?

I can understand why both might hesitate to call Frank as a witness, but why would the Prosecution in particular deny his presence? Why not enter into evidence a signed statement that he heard nothing? If he was prevented from this in some way, or refused to cooperate, this should have been laid before the judge.

I know I really shouldn't ask this but would Frank have been written out of existence quite so easily if he hadn't been a black 'domestic worker'? I hope that had nothing to do with it, but it's really really odd.

 

[jay-jay]

I've just finished reading Patricia Taylor's book 'Oscar: an accident waiting to happen' (available to download from amazon for £7.18).

It's a bit cheesy and I suppose you have to aim off for some hype and embellishment. However, having watched OP's performance in court, it rings very true (and this was written before the trial started). It documents his controlling and immature behaviour towards Samantha Taylor, and there are some quite telling incidents in there; I can't believe they've all been made up. Here's one:

"while he was travelling he would often insist that Sammy skyped him in her pyjamas, to show him she wasn't planning to go out anywhere".

Massive DV alert.

Bluddy HELL .. well, if I had been Sammy, I wudda whipped em off the minute I'd finished speaking with him, and gone straight out to a nightclub .. asherley, I would've told him to stuff it .. but then again, that seems to have been what Reeva did, and look what happened to her :-/

 

[44ALLAN]

How will this end?

Oscar and Masipa will fly off together to Mozambique to reside at Uncle Arnold's estate.
Frank will return; will be re-employed as houseboy.
And then....................

What.............................

Aunt Lois and the Judge will reside in a lodge on a tropical Island with roux (with his geeky speckled protege/was that his son ffs?.)................shelling and cracking nuts to their hearts contentment.
Roux will be in his element in his tight trunks................and here we have it he says every morning......................this cannot be true/ Lois and Masipa giggle together.

And in the real world Arnie/pisto/aimes and carl big boy carry on with their sadistic/horrible fk everyone mentality and enjoy the things a close uncle and 2 older brothers do with the younger sister/niece of the family.................cinema/shooting/driving fast cars/blowing up watermelons with a high calibre pistol and making videos of course about a murder scene her brother was involved in!!
I've seen one video anyway ........................doubt the rest are for public viewing considering AIMHO

 

[foxbluff]

Maybe you don't understand the difference between an advocate and a judge?

Perhaps you would like to explain it to me.

I don't, however, believe that you're going to be able to convince me that (16) years on the bench renders the judge inexperienced.

 

[AW2B]

Worse, never does Masipa ever consider that BOTH of them could have screamed or cried out loud (witnesses testified to hearing intermingled voices).

That she failed to even consider this possibility is further proof of her severely biased and beyond irrational reasoning. Her rationale throughout most of the verdict was bizarre to the point of absurdity - so many points had nothing to do with law, but simple common sense.

She was bound and determined, by fair means or foul, that only ONE person screamed/cried that night and that person was Oscar.

Forget an appeal - they need to remove Masipa from the bench and declare a mistrial.

I guess Milady thinks it's too far-fetched that a victim would scream..normally ONLY killers do! It's simply AMAZING!

ETA: I agree Masipa should be removed from the bench ..she proved that she is unworthy of it!

 

[delilah]

Perhaps you would like to explain it to me.

I don't, however, believe that you're going to be able to convince me that (16) years on the bench renders the judge inexperienced.

Sorry, should have explained in my previous. An advocate is someone who advocates something - aka a prosecutor or a barrister. A judge is, well, a judge! S/he is not 'advocating' anything. Hence the fact that Masipa had 7/8 years as an advocate, which is not very long by international standards. However, SA is of course very different, because of the legacy of apartheid. Apologies if I misunderstood your question.

Personally, I have no view on whether Masipa should be regarded as experienced or not. The verdict sucks regardless.

 

[mrjitty]

BBM - I'm not meaning to be snarky... where did you get this info?

The only info I have on the Judge is a profile of her by The Observer in Aug. 2014. It has her as practicing law soon after graduating law school in 1990 and being appointed to the bench in 1998 which would mean she has been a judge for (16) years.

[I have a notation on my printout of the profile as the link being in the Theory Thread at pg. 56 - Post#1393. If anyone wants, I'm willing to go find it and post the link here.

ETA: Never mind... jilly not only beat me to it but provided link to boot.

Sorry - I explained it better in my comparison with recent NZ High Court appointments.

7 years as an advocate in NZ terms is still in nappies. You don't get near the bench without 20 years of stellar career behind you.

I agree she has now been a judge for a long time.

I found her written judgment to be of relatively poor quality compared to the razor sharp judges I am used to. But its not surprising given her lightweight career before she was promoted.

Back home - its only people with a career like Roux who would be considered. He was admitted in 1982 and has 22 years of trial experience.

Its understandable why SA started fast tracking judges in. But you pay a price for that in terms of quality.

Other countries only promote their absolute elite to the High Court, whereas SA put in mid level barristers.

 

[mrjitty]

Exactly! Why, why, why was this LIE told by both sides?

I can understand why both might hesitate to call Frank as a witness, but why would the Prosecution in particular deny his presence? Why not enter into evidence a signed statement that he heard nothing? If he was prevented from this in some way, or refused to cooperate, this should have been laid before the judge.

It seems technically Frank was not "in the house"

Yet Frank Chiziweni, a Malawian immigrant who lived in an outhouse next to Mr Pistorius’s kitchen, told police he had slept through everything.

So Nel is correct in his statement.

This is the danger of Masipa copying and pasting defence submissions from the HoA

Clearly there was someone else who could have shouted out - e.g. to call for help.

 

[44ALLAN]

"... the voice I heard I know for ..."

The only thing she could have been going to say here was "I know for a fact" and this is because she heard a man's voice and could compare it to a woman’s voice that she’d also heard.

Why would you hear a man shouting for help and then wonder "Where is the lady?" What lady? Why would she even assume there was a lady? You wouldn't, not unless you knew for a fact that you'd already heard a man's voice and a woman's voice as well. There's something very, very wrong here IMO.

She definitely heard 'the lady' as in REEVA.

WHY did NEL not pick up on this ffs...........................basic basic at the very first levels of a lawyer and his team who are taking notes/listening/recording and going over all the evidence time after time after bloody time........................WHY the Flip did Nel not ask her what she meant?
IT is so obvious from her testimony she heard REEVA..............so obvious.
where is the Lady................what happened to the lady....................c'mon prosecution wtf?

Anyway...............she heard it and didn't offer anymore to the trial and she now has to live with her deception and if it was Reeva screaming then she has that in her ears/thoughts and mind for the rest of her life.
As does OP..........................sleep tight both of you I don't envy you one little bit if it's true.

 

[mrjitty]

Unfortunately, I can't find much info on her criminal trials, but Masipa was the first instance judge in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties39 (Pty) Ltd and Another ("Blue Moonlight")

'In Blue Moonlight, most of the occupiers did not have formal employment...Several resided on the property for many years and all submitted that on their eviction from Saratoga Avenue they would be homeless. They lived at the property with the permission of the owner until 1999 and paid rent to at least two different letting firms until 2004, when the property was purchased by Blue Moonlight with the intention to redevelop it. Blue Moonlight sought their eviction as early as June 2005 and in 2006 commenced eviction proceedings in the High Court under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, 19 of 1998 (PIE).

4. The High Court ordered their eviction and found the City's housing policy unconstitutional to the extent that it could not accommodate the occupiers since they were being evicted by a private landlord. The City was ordered to remedy the defect by providing the occupiers with temporary emergency alternate accommodation and also ordered to report to court on the steps it was taking to house the occupiers. The High Court also ordered the City to pay rental to Blue Moonlight for the continued occupation of its building, since Blue Moonlight had no obligation in law to continue housing the occupiers rent free.

5. The City appealed to the Supreme Court of Appeal (SCA) that part of the High Court order declaring its housing policy unconstitutional and the ruling that it pay rent to Blue Moonlight. The SCA upheld the eviction, set aside the rent order but in similar vein as the High Court found the City's housing policy unconstitutional for excluding the occupiers from consideration for temporary housing...'

http://www.mondaq.com/x/187168/Constitutional+Administrative+Law/City+of+Johannesburg+Metropolitan+Municipality+v+Blue+Moonlight+Properties+39+Pty+Ltd+and+Another+CCT+3711+2011+ZACC+33+1+December+2011+A+Practitioners+Note

Of course, a murder trial is a different kettle of fish altogether, which is not to say that she hasn't acquired relevant experience in the six or so years since her involvement in this case.

I agree she will have increased her experience during her time as a judge. (obviously).

The question is more - has she the right calibre of legal brain to be a high court judge?

Here is a comparison to a recent appointment in England.

The difference is night and day.

Dame Geraldine Mary Andrews (born 19 April 1959), styled The Hon. Mrs Justice Andrews, is a British High Court judge.[1]

She was educated at King's College London (LLB, 1st Class Honours, LLM, 1982). She was called to the bar at Gray's Inn in 1981 and became a bencher in 2004. She was made a QC in 2001, recorder from 2001, deputy judge of the High Court from 2006-2013, and judge of the High Court of Justice (Queen's Bench Division) since 2013.[2]

Again - over 20 years experience before appointment. Made Silk.

High Court judges elsewhere are the cream of the county's legal talent.

Now I know District Court judges who have served for 25 years and who will never be promoted to the High Court because they are not up to it. As such they never would be entrusted with such a case which always start in the High Court where the elite judges sit.

So to say Masipa can handle a case like this just because she as been a judge for 16 years cuts no ice with me.

 

[AW2B]

It seems technically Frank was not "in the house"



So Nel is correct in his statement.

This is the danger of Masipa copying and pasting defence submissions from the HoA

What's the source of your info?

According to most articles I read ..Chiziweni slept on the ground floor of Pistorius's home:

BBM

Frank Chiziweni is understood to have slept in the domestic quarters next to Pistorius's kitchen on the ground floor of his home on a security estate outside Pretoria.

http://www.telegraph.co.uk/news/wor...s-at-Pistorius-home-on-night-of-shooting.html

 

[mrjitty]

As you mention above, the prosecution were not required to pin the murder on an individual. This by nature should make the prosecutions task easier.

Their task didn't become easier in this trial, as they couldn't find sufficient incriminating flaws in the version of the accused.

Now, common sense tells us that since the best legal heads in the country of SA have spent countless months, weeks and hours on this case, and still could not provide enough weight of evidence to support their charge, only a few conclusions can be drawn :-

1. The prosecution team were not very good.
2. The judge was inexperienced and naive.
3. The prosecution overcharged their case.
4. The version of the accused could well be reasonably possibly true.

I struggle to believe that the prosecution team were not competent, and I know from Masipa's past that she is certainly not inexperienced or naive.

Personally I think Nel was highly competent

As we have seen with the recent News trial in England, the state struggles resource wise vs well monied defendents.

Furthermore they don't get to shape their witnesses, nor crowd source huge investigations into timeline etc.

I wonder a lot at the quality of the police investigation however

The forensics on the cellular data seems to have been quite poor. And not getting into OPs phone for 1 year??

Nel can only work with what he is given.