Is Oscar Pistorius still in jail because of political point-scoring?

Aug 25, 2015

Legal experts raise eyebrows over justice minister's intervention to keep Oscar Pistorius behind bars

The last-minute decision by South Africa's justice minister to keep Paralympian champion Oscar Pistorius in jail has raised eyebrows among legal experts in the country, with some suggesting he is being unfairly treated.

Pistorius was sentenced to five years in prison for culpable homicide after shooting his girlfriend Reeva Steenkamp on 14 February 2013. He was due to be transferred to house arrest last Friday, after serving exactly ten months in prison, following a recommendation from a parole board in June.

Michael Masutha, South Africa's Justice and Correctional Services Minister, stepped in last week after a women's group urged him to halt the transfer.

Masutha claimed that according to his interpretation of the Correctional Services Act Pistorius was only eligible to be "considered" for parole after ten months in prison. Therefore, the parole board's decision had been premature.

But Professor Stephan Terblanche, a sentencing expert and professor at the University of South Africa, told CNN it was common for parole boards to make decisions about inmates before the minimum sentence was up and rare for a justice minister to get involved in such a case.

Indeed, AP claims 15,000 offenders were released under correctional supervision last year in this way without interference from the justice department.

'Grey area of the law'

Terblanche also told The Citizen that the provision cited by Masutha had become a "grey area of the law" with no definitive judgment by a court on how it should be interpreted.

Writing for the Daily Maverick, journalist Rebecca Davis says the justice minister's actions may be "within the strict letter of the law, but the whole scenario poses some difficult questions".

Kelly Phelps, a senior law lecturer at the University of Cape Town, told her: "It does start to leave one with a sense of discomfort. It seems like the absurd outcome of what I think is an attempt to show [Pistorius] is not being given special treatment – but in the process, he is given special treatment!"

Davis concludes: "Many of us would be happy to see Pistorius stay behind bars for a lot, lot longer than ten months. But the idea that political forces – however muted – might have a role in determining how long people stay in jail is one that should cause us all some discomfort."

'Smacks of political interference'

Attorney David Dadic, who has followed the trial closely, asks why Pistorius's eligibility for release was altered just two days before he was due to leave prison, while Marius du Toit, a defence lawyer and former state prosecutor, says the decision "smacks of political interference". Du Toit tells AP that the problem is the public thinks Pistorius is "getting away with murder".

Karen Allen, Southern Africa correspondent for the BBC, questions how much political expediency played a part and whether the minister would have bothered intervening if Pistorius was not a high-profile prisoner. "Was the minister merely political point-scoring by announcing his objection three days before Pistorius was due to be released, making himself available to the press on what would have been Reeva Steenkamp's 32nd birthday?" she asks.

Barrister Mannie Witz tells Allen that if the review team decides Pistorius's release date was too early, then they will have to review every other case, with far-reaching consequences for thousands of ordinary inmates. That could cause delays of months, if not years, which could prompt human rights challenges in the constitutional court, says Allen.

Retired judge Johann Kriegler, head of lobby group Freedom Under Law, has repeatedly warned of political interference in the country and fought to strengthen the independence of the judiciary. He claims politics is not "sneaking into South African law" but "galloping in thunderously".

Keith Khoza, a senior spokesman for the ANC, said Pistorius's release "raised a public outcry that suggested that people that have money were able to escape justice". But he added: "We do not believe there is political interference."

Oscar Pistorius to remain in jail: will he be convicted of murder?

20 August

Oscar Pistorius looks unlikely to be released from prison on Friday as had been expected, after South Africa's justice minister ordered a review of his pending parole.

Pistorius was sentenced to five years in jail for culpable homicide after he shot his girlfriend Reeva Steenkamp through a toilet door on Valentine's Day in 2013.

Having served exactly ten months in prison – the minimum period stipulated by South African law – Pistorius was due to be transferred to house arrest tomorrow, following a recommendation from a parole board in June.

However, Justice and Correctional Services Minister Michael Masutha has stepped in, suggesting that the parole board's decision was premature.

Masutha said that, according to his interpretation of the law, Pistorius should not have been considered for parole until after the ten-month period was completed.

"It is apparent therefore that the decision to release him on 21 August 2015 was made prematurely on 5 June 2015 when the offender was not eligible to be considered at all," Masutha's office said.

He apparently examined the decision after a women's group urged him to halt the transfer. He announced yesterday that a parole review board would examine the original recommendation, but offered no details about when this might be completed.

Even if Pistorius is released within the next few months, his freedom could be short-lived if state prosecutors succeed in appealing his conviction...

Will Pistorius be convicted of murder?

Pistorius was cleared of murder in September last year by Judge Thokozile Masipa, but South African state prosecutors have this week filed an appeal against the verdict.

Under South African law, a judge's factual findings in a case cannot be appealed, says eNCA. Instead, prosecutors are arguing that Masipa was mistaken in her application of the law and that a different court could reach a different decision – namely that Pistorius should have been convicted of murder, not culpable homicide.

In giving her verdict last year, Masipa said that the state had failed to prove the case was "murder dolus eventualis", a legal term for when the perpetrator foresees the possibility of his action causing death and persists regardless. This is one point of law the prosecution claims Masipa might have erred on.

Masipa accepted that Pistorius genuinely thought it was an intruder, not Steenkamp, behind the toilet door, and said: "Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door – let alone the deceased – as he thought she was in the bedroom."

Legal commentators suggested that Pistorius, with his knowledge of guns and bullets, must have foreseen that he would have killed the person behind the door, be it Steenkamp or an intruder.

However, Masipa insisted that South African law warns against automatically assuming that because a perpetrator "should have" foreseen the consequences of his actions that he actually did. She said the prosecution had failed to prove beyond reasonable doubt that Pistorius foresaw the fatal consequences of his actions when he shot at the door.

Masipa has since suggested that the prospect of a successful appeal is not remote.

Lawyers for Pistorius have until 17 September to file a response to the prosecution's appeal. The date for the appeal, expected to be sometime in November, will then be set by the president of the Supreme Court of Appeal in Bloemfontein. If the conviction is escalated to murder, Pistorius will face a minimum sentence of 15 years in prison.

Oscar Pistorius to be released from prison 'wearing tag'

18 August 2015

Former Olympic athlete Oscar Pistorius is to be released next week after spending ten months in jail for shooting dead his girlfriend Reeva Steenkamp, a model.

According to the Daily Mail, Pistorius will be released next Friday under "corrective supervision" wearing an electronic tag. The paper also says that his family is not planning a big celebration to mark his freedom.

Pistorius, who shot Steenkamp dead through a closed bathroom door on Valentine's Day in 2013, has been recommended as a good candidate for corrective supervision, which is new in South Africa. The athlete said that he had mistaken Steenkamp for an intruder.

One of the issues still to be resolved, says the Mail, is where Pistorius, whose legs were amputated below the knee when he was a baby, will wear his tag. They are usually placed around the ankle.

It is expected that Pistorius will have to carry out some sort of community service for two days of each month as part of the terms of his release. His lawyer says he has expressed an interest in working with children.

The 28-year-old received a five-year sentence for manslaughter and will have served 304 days, spending much of that time in the hospital wing of Kgosi Mampuru jail, Pretoria.

While many have expressed outrage that he has spent less than a year in jail, Kelly Phelps, a senior lecturer in criminal justice at the University of Cape Town, insists he has not been given a "get-out-of-jail-free" card. "Punishment is not terminated but instead meted out in the community rather than in prison," she says.

An offender sentenced to correctional supervision remains under the control of the Department of Correctional Services until the sentence expires. The conditions of his release are yet to be made public, but they typically include a daily period of house arrest, compulsory treatment programmes, abstinence from alcohol or drugs and community service. Offenders may also be given regular support sessions with social workers.

Pistorius is expected to be released to the "comfortable home" of his wealthy uncle, says the Mail.

He will not be able to compete as an athlete but is expected to do some sort of limited training. The Mail claims he may not be in good shape as he has been refusing prison food for fear of being poisoned and is instead eating tinned food from the prison shop.

But Pistorius's release may be short-lived: the state launched an appeal in November against Pistorius's acquittal on murder charges and legal experts believe it could well succeed.

If he is found guilty of murder by appeal judges he will serve at least 15 years in jail.

Pistorius to be freed: what happens next?

Will Pistorius carry out community service?

Ahead of sentencing last year, Pistorius's defence lawyers argued that he should serve a community-based sentence, such as 16 hours of domestic cleaning a month. Annette Vergeer, a probation officer who acted as a witness in Pistorius's sentencing hearing, suggested he could even work with disabled children. She went into detail about a Gateway programme that helps children in other countries such as Mozambique. However, offenders are typically banned from leaving their ministerial district let alone the country.

One of Pistorius's lawyers told The Sunday Times in May that his client is still interested in working with children when he is released from prison. Rohan Kruger, who works on the defence team with lead counsel Barry Roux, told the newspaper: "Oscar is keen to become involved in assisting children in whatever opportunity will present."

Will Pistorius return to athletics?

According to South Africa's Centre for the Study of Violence and Reconciliation, correctional supervision aims to provide a means of rehabilitation within the community and allows – even encourages – the offender to be employed. The International Paralympic Committee has said Pistorius, known as the Blade Runner, could resume his career once he has served his sentence and the South African Olympic Committee has confirmed that it has no regulations barring athletes with a criminal record. Last year, his agent Peet van Zyl told The Guardian that they would "sit down and take stock" after the sentencing hearing.

Where will Pistorius live?

The Daily Telegraph's Aislinn Laing, who reported on much of the murder trial, suggests Pistorius is likely to live under "virtual house arrest" at his uncle's home in the Waterkloof suburb of Pretoria. "He may also be told to continue to have mental health checks after a psychiatric evaluation before he was sentenced found him to be suffering from serious depression and post-traumatic stress disorder and a suicide risk," says Laing.

However, she points out that his relative freedom could be "short-lived" if prosecutors are able to persuade the Supreme Court of Appeal in November that his verdict should be upgraded to murder, a conviction that carries a minimum of 15 years in prison.

Oscar Pistorius: is ten months in jail enough for taking a life?

9 June

Oscar Pistorius's anticipated early release from prison has been described as a "slap in the face" for the grieving parents of Reeva Steenkamp.

The athlete, who was sentenced to five years in jail in October last year, is likely to be freed on 21 August after serving just ten months for shooting his girlfriend through a locked toilet door on Valentine's Day in 2013. He is expected to be released and placed under house arrest following a recommendation from South Africa's correctional services department, reports the BBC.

In a letter to the parole board, Reeva's parents said they had forgiven Pistorius but insisted that "incarceration of ten months for taking a life is simply not enough". They added that his release would not send out the "proper message" nor "serve as the deterrent it should".

Commentators from across the world have expressed a similar view. Writing in the Herald Sun, Wendy Tuohy, says the "obscenely" early release "cannot be called justice". Describing it as a "slap in the face" for Reeva's grieving parents, she adds: "You wonder if fame and connections count for more than a woman's life."

In The Guardian, Joan Smith claims the early release "speaks volumes" about attitudes towards male violence in South Africa. "In a country where gender inequality is entrenched, this is how easy it is for a well-known man to usurp the role of victim," she writes.

But South Africa's Daily Maverick newspaper says that "procedurally, there is nothing untoward about Pistorius spending only ten months of this sentence behind bars". This course of events was "virtually guaranteed" from the moment Judge Thokozile Masipa sentenced the athlete to five years in jail for culpable homicide, says the newspaper.

The country's Criminal Procedure Act and the Correctional Services Act allows for an offender to serve "only one sixth of his/her sentence in custody" when the sentence does not exceed five years.

Diane Bass, a criminal defence attorney in Los Angeles, told CBS News: "I don't think this is anything to do with his celebrity status. It has to do with the fact that the parole boards says that he has been behaving well and unless anything changes they are the ones recommending that he be released after ten months."

Nevertheless, Pistorius could find himself back behind bars for a minimum of 15 years if prosecutors win their appeal to escalate his conviction from culpable homicide to murder. They are expected to have their case heard in South Africa's Supreme Court of Appeal in November. The state has until 17 August to submit court papers outlining its argument. Then Pistorius's defence team has until 17 September to submit a response.

Last September, Masipa ruled that the prosecution had not provided enough evidence to prove beyond reasonable doubt that Pistorius foresaw that he might kill somebody when he fired four shots into his toilet door. Therefore, Pistorius was cleared of murder and convicted on the lesser charge of culpable homicide.

However, the prosecution team – led by Gerrie Nel – claimed Masipa had "erred" on the conviction and described the sentence as "shockingly light".

Oscar Pistorius 'likely to be freed as early as 21 August'

8 June

Oscar Pistorius is likely to be freed on 21 August after serving just ten months for killing his girlfriend Reeva Steenkamp, according to reports.

Pistorius was convicted of culpable homicide last September after shooting his girlfriend Reeva Steenkamp four times through a locked toilet door on Valentine's Day in 2013.

He was sentenced to five years in October last year, but is expected to be released on house arrest as early as 21 August following a recommendation from South Africa's correctional services department, reports the BBC.

One of his family members, who did not want to be named, said: "Oscar will be released on parole by the end of August."

Prosecutors, who have launched an appeal to escalate the conviction from culpable homicide to the more serious charge of murder, are expected to have their case heard in South Africa's Supreme Court of Appeal in November.

The state has until 17 August to submit court papers outlining its argument. Then Pistorius's defence team has until 17 September to submit a response.

Last September, Masipa ruled that the prosecution had not provided enough evidence to prove beyond reasonable doubt that Pistorius foresaw that he might kill somebody when he fired four shots into his toilet door. Therefore, Pistorius was cleared of murder and convicted on the lesser charge of culpable homicide.

However, the prosecution team – led by Gerrie Nel – claimed Masipa had "erred" on the conviction and described the sentence as "shockingly light".

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