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STARTING POINT WITH SOLEDAD O'BRIEN

Pistorius Judge Ruling on Bail

Aired February 22, 2013 - 08:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


DESMOND NAIR, CHIEF MAGISTRATE, SOUTH AFRICA: Oscar told Alex that he had fallen for Reeva and wasn't afraid to express it. He explained Oscar and Reeva were comfortable with each other and they were happy when he met them in December 2012.

He further explains that they were always at ease around each other and made each other laugh. He never saw them argue or fight. It was clear to him that they were very much in love. From the few times Alex met Reeva, she seemed like a happy, bubbly person and was comfortable around Oscar's twin. Alex also explained that he found Oscar to be a humble, generous and kind person and he last spoke to the applicant 13th February 2013. The applicant, of course, for the rest for these proceedings used interchangeably with accused, referring to the accused before court.

He last spoke to the applicant on 13th February 2013 at 18:30 and asked how Reeva was doing.

Justin Nicholas Divaris is 39-year-old male residing in Sandton. He met Oscar, the applicant, at his car dealership. Both have a love for cars. They became close friends and going on holidays together, they saw each other almost every day and often spoke over the telephone.

Justin asked the applicant to be an ambassador for his various business interests because he was an international icon and yet still down to earth and an intelligent man. As their friendship grew they started to socialize more together and Justin often invited him to social events.

Justin met Reeva through his girlfriend Samantha Greyvenstein in May last year and got to know him quite well. They invited Oscar and Reeva independently to a track day at (INAUDIBLE) race track in November 2012 where the applicant and Reeva first met.

He took the credit for introducing the deceased to the applicant in these proceedings. It was clear to Justin that the more time the applicant and Reeva spent together, the more they fell in love. The applicant invited Reeva to the South African Sports Awards as a friend and the applicant told Justin that Reeva was a really fantastic person and they hit it off.

In December, Reeva and the applicant joined Justin and Samantha on holiday in Cape Town, and thereafter the applicant started to introduce the deceased to friends and family. The applicant told Justin that he was going to invite Reeva on future overseas trips with him, which surprised Justin, as Oscar never invited any of his previous girlfriends on trips overseas.

On the 13th of February, 2013, Justin invited the applicant to stay over in Johannesburg for a boys' dinner. The applicant had spoken to Reeva and decided to go to Pretoria and spend the night with the deceased.

Samantha Greyvenstein is a 29-year-old female residing in Sandton. She has known Reeva since 2007. Samantha met the applicant through her boyfriend Justin and found him to be a polite, well-mannered and humble man. On the 4th of November 2012, she received a message from Reeva to say that she is going to the South African Sports Awards with Oscar. Reeva explained to Samantha the next day that she had an amazing time with the applicant and she thought he was a really nice guy.

The applicant was often the topic of discussion during Reeva's and Samantha's conversations. After a while, Reeva still said Oscar was a great guy and that he treated her like gold.

In December, the applicant and Reeva joined Justin and Samantha on holiday in Cape Town. They were very happy together. Reeva often mentioned how she was with the applicant and that she could see a future with him. Reeva did mention that the relationship was moving fast but she was nonetheless in love with him.

On the 13th of February 2013, Samantha messaged Reeva to watch a movie with her in Johannesburg and she said she would come back to her and later meet Oscar. The applicant who called Reeva suggested they stay home in Pretoria.

Samantha indicated that the applicant and Reeva got along very well and were very compatible and the deceased mentioned that she really loved Oscar.

Exhibit E was that of one Graham Edward Binge (ph), a 33-year-old adult male, currently residing in Port Elizabeth. The applicant is his first cousin, related through their mother's sisters.

On the 13th of February 2013, at 10 past 8:00 that evening, the applicant and Graham exchanged various messages on what's up. The applicant phoned the deponent at about 25 past 8:00 and they spoke mostly about cars as they shared a common interest.

Graham wanted to bring his new VW up to Pretoria and Oscar suggested that he shouldn't as there was a high risk of this type of vehicle at one of the nearby complexes. The applicant told Graham he bought a new house in Johannesburg and he further (AUDIO GAP) said to him that he was going to buy or purchase the house also when they met in December.

It sounded to this particular deponent, Graham Edward Binge, that things were right on track from discussions in December 2012. The call lasted up to 20 hours 45.

And that was the evidence for Mr. Pistorius. In response thereto, advocate now called warrant officer Hilton Botha, who testified that he's a detective warrant officer of the South African police for 24 years.

On the 14th of February 2013, at about quarter past 4:00 in the morning, he was on the scene. He saw the deceased lying at the bottom of the staircase, already dead. She had a black vest and white shorts.

He said further bail is opposed because the applicant won't stand trial, he was a flight risk. He considered this a serious matter and added that a possible sentence of 15 years to life imprisonment was on the cards.

He testified further that he had learned the accused was a professional athlete who spends times overseas and has a house in Italy. There was a safe in the kitchen at the time of his arrival and the accused attorney arrived with a locksmith to open the safe. They were looking for a document and memory stick with account numbers for accounts offshore.

He testified further if the accused leaves South Africa he won't be able to get him back as South Africa does not have extradition treaties in every country. He considered this a very serious offense and that a defenseless woman was shot three times and the shots were fired through a closed door and she was unarmed.

He added that the applicant had given the version to the police that he, the applicant, thought it was a burglar.

Warrant officer Hilton Botha took statements from the neighbors and witnesses and confirmed that on the scene of the crime where experts from the fields of ballistics, photographers, fingerprints experts, blood spatter experts.

He added that the postmortem revealed wounds one on the right side of the head, one in the right elbow that broke the arm and one through the right hip. There was also a bullet hole through the white pants. He added that .38 rounds of ammunition were found and that the applicant has no license for a .38 special revolver.

He indicated that it was the state's intention to charge the applicant with unlicensed possession of ammunition. He indicated that when one, according to his experience, goes for the test to obtain a firearm license, one of the questions is about when to shoot and when not to shoot.

He described the scene as a two-story dwelling, one entered through the front door and you pass -- one would have to pass the deceased on the staircase to the kitchen on the left. If you go up the staircase you turn right to the main bedroom. If you enter the bedroom and turn left you see a king size bed, bookcases and -- bookcases to the left of the bed, together with the couch. On the left side was a pair of female slippers, worn by women.

You go through a walk-in dresser cupboard area and get to the bathroom. From the bedroom to the bathroom is about 6.8 meters. If you turn right into bathroom, you see the shower and toilet with their own doors and two basins on the extreme right-hand side corner, almost against the showered door.

In the bathroom, we saw a piece of the wood that originated from the broken toilet door lying on the floor of the bathroom itself, where cartridges with one .9 millimeter cartridge in the doorway. There was a firearm, a Taurus 9 millimeter. On the shower mat in front of the shower door, there were two phones -- one iPhone 4 and one iPhone 5 in the bathroom on the mat.

The size of the bathroom was 2.55 by 2.83 meters. The toilet and shower are to your right at the opposite wall, furthest to your right and the basins as I've said were adjacent to the shower door. The toilet itself measures 1.4 by 1.14 meters in diameters in meter.

He also found another two phones, the make BlackBerry, lying in the bedroom. He checked all the phones and discovered that no calls had been made.

The toilet door had two panels, the top panel is broken. One part was found outside the toilet and one part inside. Shots appear to have been fired through the door and the key was on the outside of the door.

There were four cartridges found. A cricket bat was lying in the bathroom and it was sent for further tests to be conducted to establish whether it was used to gain entry into the toilet.

The experts of the ballistic team informed him that the shots were fired at an angle towards the toilet seat. The shooter would have been plus/minus 1.5 meters from the door and that the shooter would have had to stand next to the shower with his back to the wash basins.

There were three entrance wounds. One projectile hit the wall, in the top corner on the left. If one is on the balcony of this bedroom, one would have to pass the bed to get to the bathroom, through the bathroom window.

When he looked down, he saw that there were two dogs and he indicated that whilst he was not an expert, he guessed one was a pit bull and the other a bulldog pug. This was on the ground area beneath the bedroom.

He indicated further that the ballistics experts had confirmed that the shots were fired at an angle through the top portion of the toilet door in a downward direction.

Near the TV area, he found a package of testosterone with needles and injections.

He obtained the statements of neighbors who had heard noises.

He testified further that there were previous incidents as appeared in the media, which he investigated, one of which was at the Melrose Arch. It was a shooting incident where the applicant had accidentally discharged someone else's firearm in the restaurant and asked that person to take the rap for him to avoid publicity.

Then the accused according to his information was involved in a fight at the Daytona event at Kyalami and was so enraged that he actually used profanities indicative of a threat of assault. The complainant in the matter wanted to open a civil and criminal case against the applicant, Mr. Divaris, the applicant's friend, persuaded the complainant to drop the case because of the negative impact for his company with the media as his sponsor was McLaren. The matter was settled through their attorneys.

One other, Mr. Mark Deshler (ph), according to this witness heard what happened at Kyalami and tried to establish what was going on with the applicant and the applicant said that he would break his legs.

Warrant officer Botha testified when he went back to the scene a .9 millimeter pistol holster was on the left side of the bed where his slippers and overnight bag were.

On the probability of the accused defending himself, he indicated it could be true, but it's highly unlikely because the door was closed. He didn't know who was in the toilet and he didn't even call for his girlfriend. He stated further that he was in the possession of statements from one witness who heard, who indicated that voices two of people were heard talking loud between 2:00 and 3:00 a.m. He also indicated that there was a statement from another person who testified that -- or who indicated in the statement -- that he had heard gunshots and went out onto his balcony, saw the lights on at the applicant's premises, went back to bed, heard a female scream and then heard two or three more shots.

On cross-examination, the defense dealt with the state's charges as amplified by defensive (ph) argument and response to further particulars. And on the question as to whether he had not furnished a version of sorts, whether the applicants had not furthered a version of sorts, the witness eventually submitted that they did say to him that he thought it was a burglar.

Advocate Roux took his time on that statement in the defensive argument that the applicant had not furnished a version of sorts, and from his cross-examination, he was able to elicit from Warrant Officer Bota that, indeed, the applicant did say to him that he thought it was a burglar and that indeed amounts to some kind of version.

He was extensively cross-examined on his having heard from the ballistic experts that shots were fired at the toilet seat from a distance of 1.5 meters. He did, in fact, agree that on the defense version, being that shots were fired from the entrance to the bathroom, it would follow the same trajectory to the toilet if aimed at the toilet from there. So he conceded to the extent that the defense version was that the applicant had shot from the entrance of the bathroom. He also did not indicate that the ballistics statement to him, that the shots were fired from 1.5 meters inside the bathroom, was untrue.

On the question of whether the lights were switched on before or after this shooting, he did confirm that the witness statement that he had in his possession seemed to indicate that, after he had heard the shots, the lights were on. Mr. Pistorius' affidavit indicates that he put the lights on after the shooting. He was studying questions on whose voices could be heard against the affidavits in his possession, that there were people arguing loudly. Could he say it was the applicant or the deceased? He couldn't. He was also forced to concede in cross-examination that it was not known who was talking and neither could he confirm that the sounds emanated from the applicant's house.

He also indicated that his initial testimony about the persons who had heard sounds from the applicant's house, that they lived approximately 600 meters away, was not correct. He did concede that he didn't ask the accused, rather, the defense, if there were other cell phones. The defense put to him that the applicant does have a cell phone and gave him a number in court.

The defense contended to him that the postmortem will reveal that the deceased's bladder was empty. He could not deny that and agreed that that would be in line, if the defense's version was that she was in the toilet. It was put to him that if the deceased went to the toilet at the point that the accused had gone to obtain the fan, it would be possible he didn't see her, and he indicated that he didn't particularly go and test this after the accused's affidavit was handed in. He indicated in cross-examination that the ladders, stepladders, were not immediately outside the bathroom window area, but further away.

The defense persisted with the version that the accused, being so vulnerable as a person in prosthesis, would want to protect himself as well as his girlfriend. And Mr. Bota responded by saying, or arguing, why then would the applicant charge into a very dangerous area if his intention was to protect himself and the deceased?

He conceded or agreed there was no sign of assault whilst he attended the postmortem himself. He conceded the state's response to the defense request for further particulars makes mention, as part of the case for the state on premeditated murder, they've mentioned made (ph) of phone calls. He then agreed there were no calls made that he knew of and then changed his version to indicate that this actually meant the absence of calls.

It was put to him that the applicant was wearing a patch on his shoulder which resulted in him sleeping on the left side of the bed, where he didn't normally sleep, and he indicated that he hadn't seen the patch. The defense, on cross-examination, specifically denied that the applicant had a house in Italy, but indicated that the accused had a dormant account in Brunswick, Carolina. It is worth mentioning at this point in time no mention is made in the affidavit by the applicant supporting his bail application of this dormant account in Carolina.

He was thoroughly cross-examined on the incident at Melrose Arch (ph), where the firearm was discharged under the table, and whilst it was put to him that the gun went off whilst it was being passed to the applicant under the table, he maintained it was the applicant who discharged the firearm. Turning to our legal position, according to the learned author Detois (ph) in his commentary on the Criminal Procedure Act, bail is described as a contract in terms of which an accused who is being held in custody is set at liberty upon his payment, of or his furnishing of, a guarantee to pay a fixed sum of money, and further upon his express or implied undertaking to comply with the general conditions and specific conditions relating to his release.

The state, on the other hand, undertakes to respect the liberty of an accused and where a court, by granting bail, has deliberately given official recognition to an accused's right to liberty, the state will only succeed in having bail canceled if it can place convincing facts in support of such cancellation before the court.

On (INAUDIBLE) "Bail: A Practitioner's Guide", Juta third edition, on page two, further traces the origin of the bail process to the Seventh Century England, in contrast to the early Roman-Dutch law, where the concept of bail was practically unknown. The Constitutional Court, as per the Judge Krekeler, in S. v. Dlamini, S. v. Glagla (ph) and others, S. v. Ubel (ph), S. v. Petercult (ph), 1999, 2 SSCR page 51, Constitutional Court, in footnote eight of paragraph three of the judgment, summarized the history of bail in South Africa after the 21 of July, 1977, as follows:

"Bail, insofar as South Africa's root can be traced back to Cape Ordinance 40, 1828, which laid the foundation of a man under criminal procedure in this country, and first made clear provision for the release of an awaiting trial prisoner on bail."

Subsequently, the Cape Ordinance served as a model for similar statutes in the town and the two Boer Republics. Shortly after the South African War, a comprehensive criminal procedure code, Ordinance 1 of 1903, was introduced in the Transvaal Colony, which was to form the basis of the first national criminal code, Act 31 of 1917, and its successor, Act 56 of 1955.

Extensive provisions relating to bail were enacted in Chapter 9 of the Criminal Procedure Act 51 of 1977, which came into operation on the 22 of July, 1977. These provisions were substantially revised by the Criminal Procedure Act, Amendment Act 75 of 1995, and again by the Criminal Procedure Second Amendment Act 85 of 1997. Further amendments to some of the provisions have also been affected since then.

Despite the fact that bail is predominantly regulated by legislation, the common law principles relating to bail have not been discarded. In several instances where the Criminal Procedure Act is either silent or ambiguous, our high courts have fulfilled their obligation and functions by resorting to their common law powers. While South Africa's transition to a new constitutional dispensation and the advent of the Bill of Rights, the position relating to bail was in Section 25.2 of the Interim Constitution of the Republic of South Africa of 1993, Act 200 of 1993. And of course, eventually, in Section 1(f) of the Constitution of the Republic of South Africa in 1996. On the 3 of June 1999, the Constitutional Court in the many cases I've referred to above, by way of summary, said, inter alia, that -- excuse me -- "None of the provisions of the Constitution presents any major obstacle to the application of the provisions in the Criminal Procedure Act dealing with bail. Bail as an institution is well- known; so are its objectives and broad criteria. The advent of the Constitution and the adoption of the 1995 and 1997 amendments to Section 60 of the Criminal Procedure Act, properly construed, have provided a norm and guided the evaluation process.

"Section 35.1 of the Constitution acknowledges that persons may be arrested and detained for allegedly having committed offenses, but such arrestees were entitled to be released on reasonable conditions if the interests of justice permit. Deciding whether the interests of justice permits such release and determining appropriate conditions is an exercise to be performed judicially and in accordance with the procedure laid down in Section 60 of the Act.

"Although a bail application is a formal court proceeding, it is relatively informal, inherently urgent, and serves a unique interlocutory purpose distinct from that of the trial. The issue is not guilt but where the interests of justice lie in relation to bail.

"In determining where the interests of justice lie, the essential exercise is to ascertain the relevant circumstances by using as a guide the checklist of relevant factors against the grant of bail provided in Subsection 4 as particularized in Subsection 5 to 8(a), and of those for the grant of bail provided in Subsection 9.

"With regard to the factors both for and against the grant of bail, the checklist is not exhaustive, and the court has to consider any other relevant factors. In seeking to establish the presence of such factors, the court is to act as proactively and inquisitorially as may be relevant. Having established all relevant factor, the court must weigh up the pros and cons of bail judicially, keeping in mind the possibilities of using appropriate conditions to minimize possible risks.

"Where Subsection 11(a) is involved, the court should be astute to ensure that the right to bail under Section 35.1(f) of the Constitution is not rendered illusory by the effect of Subsection 14, the incidence of the onus and need to produce evidence. The accused is entitled to a reasonable opportunity to establish exceptional circumstances. The latter term holds no hidden meaning and is to be applied judicially.

Although the accused's guilt may be relevant in a bail application, evidence thereon should be confined to the center issue, whether the interests of justice permit the release of that accused on bail."