The woman who will decide Pistorius' fate




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Talk to South Africans and many will tell you the "most incredible sight" on display at the trial of Oscar Pistorius is not their country's favourite son in the dock charged with the murder of his girlfriend, Reeva Steenkamp, but that of the black woman who will decide his fate.

Judge Thokozile Matilda Masipa, 66, grew up during the cruellest years of her nation's apartheid regime yet rose to become just the second black female judge in South Africa.

Thanks partly to the difficulty of finding jurors untainted by the racial perversions engendered by that political system, South Africa abandoned jury trials in 1969, with cases now decided by a judge, aided by two assessors. In the Pistorius case those people are Masipa and Janet Henzen-du Toi, an advocate who is a white woman, as well as, Themba Mazibuko, a former legal academic, who is a black man.

As one former advocate said to me: "For a South African of my age, it is really quite amazing to look up and see the judge is not only a woman but black".

"For an entire generation of white South Africans, a black woman was either their maid or nanny and judges were almost exclusively white males. To see Masipa presiding over the trial of not only a white man but a rich, famous, white man, this is a stunning symbol of just how far the country has come," he said.

Another South African told me "it is almost beyond my comprehension" the level of determination Masipa must have had to get an education, then find "the passion and drive in such a racist society to suceed like she has".

In comparison to judges in other high-profile "celebrity trials" like Judge Lance Ito in the O.J. Simpson murder trial and Judge Michael Pastor in Dr Conrad Murray's trial for the involuntary manslaughter of Michael Jackson, very little is known about Judge Masipa save that she likes dancing, gardening and yoga, is married and has one son.

Despite having worked as a newspaper reporter earlier in her career and being on the record as saying judges should interact with the media to explain their decisions, Masipa has kept a low public profile.

1999 announcement of her appoinment to the judiciary says she was born in the Johannesburg township of Orlando East, Soweto in 1947, the year before apartheid became an official ideology in South Africa.

She received a Bachelor of Arts degree, with a specialisation in social work, in 1974 and was later employed as a journalist for The World, The Post and The Sowetan newspapers before earning a law degree in 1990 from the University of South Africa. She became an advocate in 1991.

In her time on the bench, Judge Masipa has shown little tolerance for crimes against women, handing down a 252-year sentence last year to a serial rapist and robber and, prior to that, a life sentence to a policeman who shot and killed his wife during an argument about a divorce settlement.

During that trial she said: "No one is above the law. You deserve to go to jail for life because you are not a protector, you are a killer."

In 2001, Masipa sentenced two rapists to life in prison, commenting: "Women feel unsafe, even in the sanctity of their own homes, and look to these courts to protect their interests, which courts can only do by meting out harsh sentences." 

While some might speculate this does not bode well for Pistorius, Masipa was not appointed to the trial for political reasons, merely chosen by luck from a routine allocation of court cases. Though her opinion on the blade runner's guilt or innocence is foremost, if both assessors disagree with her, Masipa's judgment can be overruled. 

Nonetheless, Pistorius's unctuous use of the honorific "My Lady" every time he answers a question, has also struck many South Africans as over-kill on his part and might obscure the fact that outside of courtrooms, blacks in South Africa still occupy third place on the social ladder behind whites and Indians.

"Apartheid as a political system may be dead, but an economic Apartheid is still firmly in place. The poverty amongst blacks is endemic. Don't let one black, female judge fool you into thinking this is anything approaching the norm," said one observer.

The inversion of the social dynamics in Pretoria's North Gauteng High Court over the last month might be "incredible" but it is still rare.

LATEST ON TRIAL: Athlete's blame-shifting a recurring theme for prosecutor

Edging towards the end of his cross-examination, prosecutor Gerrie Nel asked Oscar Pistorius who the world should blame for the athlete's actions in shooting Reeva Steenkamp dead.

After all, the wily Mr Nel said, Mr Pistorius says he is blameless because he just made a "terrible mistake" that night, reacting instinctively to a noise like "wood moving" in his toilet cubicle that he thought was made by a dangerous intruder.

"So who should we blame for the fact that you shot her?" Mr Nel said, casting his arm around the court, as though anyone would do. "Should we blame Reeva? She never told you she was going to the toilet, should we not blame her?"

"No, my lady," came the quick response, addressed to the judge.

Was it the government then, Mr Nel continued, for not doing enough about South Africa's crime problem, leaving the disabled athlete apparently so paranoid of attack that he would shoot at a closed bathroom door?

"I don't know who [is to blame], my lady," he said.

"You must be blaming somebody for this?"

"I don't, my lady, I believed there was a threat."

Mr Pistorius' penchant for blame-shifting had been a recurring theme over the course of Mr Nel's tough cross-examination, and the questions were a fitting way to end his take-down of the international sporting icon.

After days in full attack mode, Mr Nel's climax was simply stated.

"You shot four shots though that door knowing she was talking to you ... you armed yourself with the sole purpose of shooting and killing her," Mr Nel said.

"That is not true, my lady," Mr Pistorius replied.

"And after that you were overcome by what you had done ... because you had intended to kill her?"

"That is not true, my lady."

For five days, it had been the kind of clash relished by sports lovers as much as court watchers - the Pit Bull prosecutor and the Blade Runner engaged in a battle that could have only one winner.

If the look on Mr Pistorius' face was anything to go by as he slumped back in the dock after seven days in the witness box, the answer was obvious.

Mr Nel had been his tormenter: the experienced prosecutor's precision cross-examination laid out a compelling argument that Mr Pistorius' version of events is utterly implausible.

Mr Pistorius appeared to be caught out and confused on numerous occasions, flatly denying minor facts that were easily proven.

Nonetheless he stuck to his central story, claiming he had mistaken Ms Steenkamp for an intruder that night, firing four bullets at his toilet door in a panic but adamant he had not intended to kill.

Mr Nel alleged numerous discrepancies in Mr Pistorius' version, highlighting that the Olympian was a stickler for detail on some matters and had a complete memory blank on others.

Mr Nel stepped Mr Pistorius through the minutiae of his version, citing numerous inconsistencies, contradictions and "tailoring" of evidence.

The athlete was also accused of using his tearful outbursts to avoid difficult questions and also changing his defence from one of self-defence, in which he genuinely believed he was acting lawfully, to another available - that of an "involuntary action".

By the time Mr Pistorius left the witness box, Mr Nel had presented a compelling picture of what the state alleges took place on the night Ms Steenkamp died based on the versions of "ear witnesses", ballistics and forensic experts and evidence found at the crime scene.

The state alleges that the couple had an argument, and the young model and law graduate packed her bag to leave. There was perhaps a tussle over her jeans, the only item not neatly folded in her gym bag, after which Ms Steenkamp fled to the bathroom in fear of her life as Mr Pistorius grabbed his weapon, likely following her screaming: "Get the f--- out of my house.''

Ms Steenkamp locked herself in the toilet with her mobile phone, and the couple may have continued to argue for some time.

Eventually, Mr Pistorius opened fire, the first bullet striking Ms Steenkamp in the hip as she stood close to the closed bathroom door.

She screamed and fell backwards onto a wooden magazine rack. The second bullet missed, but ricocheted off a wall and hit her on her back. A third struck her right upper arm, the fourth entering her skull through her left hand, raised to her head in a protective position.

"You knew Reeva was behind the door and you shot at her. That's the only thing that makes sense," Mr Nel said in summary.

"She was talking to you - she was standing right in front of the bathroom door talking to you when you shot her [wasn't she?]"

"No she wasn't."

Mr Nel: "She wasn't scared of any intruder, she was scared of you."

"It's not true, my lady," Mr Pistorius replied in a small voice.

The court has now adjourned until May 5, when the defence will resume, calling about 10 more witnesses.

After that, Judge Thokozile Masipa is likely to adjourn for a further month to enable both sides to make their closing submissions in writing before final argument takes place.