Kameel Premhid
Kameel Premhid

Leave Judge Masipa alone

I have little interest in the Oscar Pistorius trial. I empathise with the loss of, and damage to, life as a result of Pistorius’s actions. This case has, unfortunately, been given more attention than it should. The fact that the victim, and the accused, are well-known, white, moneyed, and privileged, has resulted in this case being treated so exceptionally that the brutal violence that (mostly black) women face on a daily basis in South Africa has, yet again, largely been ignored. The discrepancy in societal and media interest in this unfortunate affair concerns me. It should act as the basis for critical self-reflection for the country as a whole.

But, that is not what I address here. Neither is the reasoning of Judge Thokozile Masipa’s judgment. The line between dolus eventualis and culpa is a fine one and I am sure that many will address this subject in the weeks and years to come. And, if this matter goes on appeal, as I suspect, then the judgment of the Supreme Court of Appeal, and the Constitutional Court – if it gets that far, will be instructive.

Rather, there are two observations that I have made about the way in which many South Africans have reacted to the learned judge’s findings.

Judge Thokozile Masipa/Getty Images

Judge Thokozile Masipa/Getty Images

On one hand, many people imply that Judge Masipa found as she did because money changed hands. They are implying that she is corrupt. A friend on Facebook reposted a statement from an anonymously run Gerrie Nel fan page which states as much (“Judge … rumours of bribes are already flying around”). I am mortified that this friend, and many more South Africans, have taken to this page (and others) to vilify the judge, in particular, and our justice system, in general.

On the other hand, many subtle, though equally pernicious, imputations have also been made about Masipa’s competence because she is either a female, black, or both. The pointed whisperings about her competence – and the alternative-reality suggestions that a white and/or male judge may have found differently (read correctly) – cannot be ignored.

These reactions are deeply problematic and probably reflect more on how damaged our society is than on the learned judge’s reasoning.

Firstly, while many reports indicate that there is a high degree of perceived judicial corruption in South Africa, those same reports (and many others) acknowledge that our courts are independent. Their relationship with the state, and its people, is robust. Additionally, many of these reports do not differentiate between perceived corruption among magistrates, prosecutors, court officials, and judges. They are treated as the same thing. They are not. Irrespective of the features of these reports, which qualify their reliability, it is deeply discomforting that people can casually accuse a high court judge of corruption, without any evidence to support their claim.

Secondly, the racialised and sexualised narrative of the criticism demonstrates just how much our perceptions of competence are. The suggestion that a white and/or male judge would have found differently (again, read “correctly”) and found Pistorius guilty of murder shows how little respect we give to highly qualified black women. It also shows how many who presently decry the finding of culpable homicide would have possibly changed their tune had the demographic of the judge also changed. That otherwise reasonable people can also be sucked into this narrative, and inadvertently peddle it, shows just how damaging racial reductionism is.

Thirdly, many people who have made these comments are, at least, guilty of contempt of court or, at worst, guilty of defamation. I do not believe in legal elitism. Criticism of this judgment should not be the preserve of those who hold a law degree: LLB-holders are capable of being wholly off the mark and non-LLB holders are equally capable of the opposite. But, these highly personalised remarks – which are designed to impugn the integrity of the learned judge – are of little value. They seek to offend rather than develop our jurisprudence.

Indeed, it is appropriate that lawyers and non-lawyers alike are involved in criticising judgments in scholarly and non-scholarly ways. Legitimate criticism has a useful role to play in the development of the law, specifically, and society, in general. But we should be all too careful to filter our emotion when doing so. Not only does it threaten our ability to have a reasoned argument, but it undermines our humaneness too. Given that justice depends on the paradoxical infallibility of humans, getting too carried makes attaining it only that much more difficult.

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    • ian shaw

      There is no need to bring in bribery or racist prejudice against the judge.
      Any judge can be criticised for a wrong interpretation of a law. This is the purpose of an appeal. I agree that only quslified lawyers can interpret a judgement correctly.
      It is a sad indictment of our society that rumours based on mistrust due to
      previous mischief can colour our vision.

    • http://necrofiles.blogspot.com Garg Unzola

      I agree, leave the poor judge alone. While I disagree with her assessment that Oscar did not have the intention to kill whomever he thought was behind the bathroom door, this is a subjective and circumstantial opinion. The judge differs and she’s quite right.

      These are two further pieces that explain her judgement in more detail:
      Judge Masipa was right.
      Pistorius and dolus eventualis.

    • Clint Griffin

      Rubbish, she happens to be wrong, according to many, including former Judge Presidents and those in the judiciary. The logical end result of the inference above is that no (black) female judge can be wrong because to suggest such a thing with be patriarchal racism.

    • http://imagineathena.com/tanaquil-le-clerq-and-the-possibility-of-resurrection/ Candice Holdsworth

      I agree, Garg. The law is about argumentation.

    • MK

      This is the most sensible commentary I have read on this matter so far. I appreciate that you touched on what many ignore every single day, the fact that many women of a different race and class to Reeva, on a daily basis lose their lives in a similar many, often accompanied by rape and prolonged suffering. I am not saying that what Oscar did is acceptable but lets take away the fame and the money that comes with it and ask ourselves if we really care what happened to Reeva because if we did, we would care about the woman in a shack in the middle of nowhere who has the very same fate lurking around the corner. Lets forget dolus eventualis, most of us don’t really understand it any any case. Lets forget about the Learned Judge, she is afterall LEARNED. It’s time we stop trying to prove that we’re intelligent and how sharp our critical thionking skills are and start focussing o what really matters.

    • Lucky

      A very good observation. People get too emotional that they end up underming our legal processes by not using their brains before they utter statements. They must leave the judge alone and lament the failure of Gerrie Nel. Whether judge Masipa is female or black is irrelevant here, the state failed to put convincing evidence for its case & that’s it. Viva Judge Masipa!

    • http://- jeannie du Plessis

      I fully agree with Kameel,

      This lady is highly respected in all circles. Why break her down (same as with Tulie), if you do not agree with her findings, now you take her, on the size of her nose, and her gender). This court ruling can be changed, by the state prosecution appealing, as easy as that!

      Our Justice system work, if they are given the chance, unless cases, like the Zuma’s (Selebi, and Shaik) court cases, that just gets ignored . If the Government agrees, that’s it.

      But with this Oscar case justice will be served.

    • deltanile

      I respect and think the Judge did an amazing job. She was not swayed by her emotions but facts. The prosecution did not prove a motive and that was the end of the story. Justice is about a statue who is blindfolded hold a balanced scale not emotions and media here say. I’m sure if the prosecution had proven beyond reasonable doubt that Reeva was deliberately murdered Oscar would be in trouble. Personally I didn’t listen to emotion and media but the facts and I totally agree with the Judge. Well done Judge Masipa. Nel I didn’t like him at all he was aggressive and arrogant. I’m so sure if he had been obstructive he would have gotten alot more out of Oscar. I am sure Reeva is now resting.

    • Henri

      I can only agree with this writer. The judge could only judge on the testimony and evidence presented. She might or might not have made a mistake here or there, but that is for the appeals process to figure out. I The emotional outbursts, including that of the deceased’s brother, has no place in the justice system and all it does is promote further mistrust in the judicial system which worked perfectly fine in the case. In terms of the evidence, murder could not be proved “beyond reasonable doubt”. If an appeal can dig up more evidence to the state’s advantage, well, good. But leave the judge alone!
      South Africans of all races are emotional basket cases.

    • Mariano Castrillon

      Your opinion and my opinion are nothing but “opinions”, whereas a Judge has no opinion and has to abide by facts. We may or may not agree with her judgment but that , but that is only a matter of opinion.

      In my opinion, O.P. is as guilty as hell.

    • Francois

      The judge applied her mind and weighed the merits of the case before reaching her verdict. To attack her and suggest all manner of innuendo that befits incompetence is to insult her intelligence.

    • Zelia

      In order to know what [the law] is, we must know what it has been, and what it tends to become. Justice has taken its course and the authority and legitimacy of the legal process must be respected. Well done Judge Masipa

    • Hannetjie

      You go my Lady. Well done. Good job. The people commenting is the ones with no qualifications and they are also the ones who change their story every other day.
      You go girl……………………………….Nothing wrong with you !!!!!!!!!!!!!!!!

    • Neo

      My opinion is that we live in a society that does not take gender-based violence seriously, whether Black, White or otherwise. I feel that the courts are just maintaining the status quo!

    • mina

      Whoever said the judge is wrong because she is black, a woman or both, is wrong. The judge is wrong because she is wrong.

    • Head Light

      To use the analogy of war: no state can be found guilty of murder (in law) where death is a consequence of collateral damage. The blade runner verdict of course progressively implies that all police forces & criminal perpetrators worldwide will be employing balsa wood caps as gun silencers to avoid grievous prosecution.

    • Dries

      Of course, this being South Africa, Judge Masipa’s race and gender automatically becomes a political football, both by her detractors and the self-appointed guardians of those two defining attributes.

      All this fuss makes me glad to live in a country where a judge decides your fate. They may not always get it right, but can you imagine what would happen if, like that la la land officially known as the US, we were to be judged by our so-called “peers” (i.e. people like the commentators on news sites like these)?

      I can see nothing wrong with with Masipa’s findings. She followed the evidence that existed, not the wild imaginings and shady desires of Joe Soap.

    • http://Nicholasjakari.com Nicholas

      Thank you for this useful evaluation. I agree that the line is a fine one between dolus eventualis and culpa and I agree, that both those who believe she has done the bent elbow thing, or that the system is in terminal disintegration are incorrect.

      Partly I think this is because this is not the correct time to have those opinions… The correct time is with the sentencing. Mainly however because I believe her position to be deliciously crafty.

      It was my opinion before the judgement that the state had not conclusively demonstrated intention, and reading the judges decision to take eventualis off the table one suspect she is setting a possible trap, that may well be intriguingly instructive.

      I await the sentence decision with hungry anticipation to discover if I am right.

    • http://www.thoughtleader.co.za/suntoshpillay Suntosh

      The irony is that had a white, male judge found Oscar guilty of culpable homicide, we would again be playing the gender/race cards – this time claiming that he was let of the hook easier because both the judge and Oscar were white males.

      We are trapped in racial reductionism, either way.

    • Bob

      That’s life I’m afraid – some people are famous and get lots of attention.
      It follows that if ur famous and do something wrong u become notorious .
      There’s always been famous people and there always will b.
      got nothing to do with sex or color – the ojs trial got just as much attention.

      And masipa is wrong not because she black or a women but because she is just plain wrong!

    • KJ

      Textbook case of ‘dolus eventualis’ or common murder.
      To be honest I think this masipa is fool and should not be a judge.
      I never even picked up a law book and I can see the difference easy.

      There is not a ‘fine line’ between culpable homicide and murder!

      Let me simplify

      If you kill someone by mistake that’s culpable homicide

      If you kill someone on purpose that’s murder

      Oscar admitted to firing at an unknown person . He didn’t say it was a mistake !
      He said it was self defence. Sadly for him that’s murder – it’s so obvious !

      This is why everyone is insulting this idiot judge ! If she was a white male rock star I would b just as critical !

    • T.G.

      “The loss of life cannot be reversed. Nothing I say or do today can reverse what happened on Feb 14, 2013 to the deceased and her family”
      What words are these from a judge? It is quite outrageous. What is law for? I do not think the law is meant to encourage crime.
      Judges are persons, and persons with a keen sense that they can’t be pushed, so in fact they may bend to the opposite direction quite often.
      It is interesting the fact you point out about the violence women face, so it will be enlightening to compare similar cases where there is no media, no big budget lawyers, and the judges are doing its everyday job anonymously.

    • hatethephonies

      The LLB is badly designed and not fit for purpose, to many subjects and not enough detail of the core legal subjects., they need a separate course after the LLB to deal with the actual practice skills.