Through the grapevine I've heard word of contempt of court Nick van der Leek. Apparently I am an idiot who doesn't understand media law. That's a curious thing because I have three years of Commercial law, as well as Family and Private law in my back pocket, but...uh...let's examine my ignorance when it comes to matters of the media and the law. Personally I think SA media watch too much American/British TV, and should maybe definitely catch a wake up!
No. I think he’s an idiot [Nick vd Leek].
The reason the SA media will not publicise his book has nothing to do with Brand Pistorius and everything to do with the sub judice rule. Your mate is very likely to find himself in contempt of court at the very least. At worst he may have handed Pistorius his Get Out of Jail Card. If Oscar is convicted his lawyers can now seek a mistrial on the grounds that your mate has prejudiced the outcome. If that fails they can seek an appeal on the same grounds.>>>The idea of a mistrial is something I specifically researched for Resurrection, and hence published an extract here.
But could the publication of the video/article/eBook down under/or over here amount to a mistrial?
We submit not. I submit not too.
Significantly, the footage has not been relied upon by the state or the defence and thus it has no bearing on Pistorius’s murder trial whatsoever.
Why would they not relie on it? Because it's irrelevant to their own stating of their case in court.
It follows that there is simply no basis for the view that Oscar’s or the state’s right to a fair trial has been infringed by the mere publication of the footage.
Accordingly, there is with respect no basis for the view that the broadcast creates what the Americans call a “mistrial”.
The legal reason is that our Supreme Court of Appeal made it clear in the Baby Jordancase that the test for whether a publication during a pending or on-going criminal trial is unlawful is whether there is a real risk of demonstrable and substantial prejudice to the administration of justice. And “[e]ven then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage.” This rule against publication which could prejudice the administration of justice is known as the sub judice rule.
Importantly, the panel deciding Oscar’s legal fate is not a jury comprised of lay people who might be erroneously influenced by evidence which is not before the court, but a Judge and two legally-trained assessors. Our courts have emphasised the importance of this distinction.
A helpful example in this regard is the case of Joseph Arthur Walter Brown v the NDPP and Others in which the former chief executive of Fidentia, (this case law, incidentally, is discussed in RESURRECTION) along with comment from David Dadic and Ulrich Roux) who had been charged with numerous counts of fraud and theft, applied for a permanent stay of the prosecution against him on the basis that pre-trial media coverage infringed his right to a fair trial.
The court agreed that there was indeed adverse media coverage in relation to his case but found that Brown had failed to show any link between the publicity and the effect that it would have on his trial.
>>>One also has to ask the question, if an idiot journalist were to write a book that could result in his, a publications and those he quoted being sued, why would litigation experts contribute to it? Simple answer, we know something the ADD starved MSM don't. Perhaps it's time you paid attention to the details people...
I've never understood all the skulduggery that goes on behind the scenes, where people scheme and invent and undermine.My research into the Oscar Pistorius Murder Trial, and also other Trials; Griekwastad and David Baine and OJ Simpson has shown me that people will go to extreme lengths to protect a persona. In fact they will go to even more extreme lengths to protect a FAKE persona. And I can tell you this for nothing, people who protect their own fake personas are ruthless when it comes to other people - authentic people - who might reveal them, or show them up. And so there's this very real scenario playing out of someone who tries to invalidate you, in order to validate themselves. It's important to do this especially when your shit is bullshit. Then you really need all the good PR you can get to validate your bullshitness.
When you look at these cases, Simpson, Pistorius and this Steenkamp kid, all of them thought they were hotshots (and some still do), thought they were entitled to their lives and big bucks, saw others lives as cheap objects by comparison, and expendable to their own, and so were highly incentivised to cover up their inauthentic narratives. Why? Because if people saw or knew who they really were they'd be in super serious trouble. And how far will they go to protect these persona? Pretty fucking far.
I mean if your persona is your identity, it feels - at times - interchangeable, identical to who you are. It isn't, but if you are so invested in your persona, then threats to your persona, which are threats to your identity, are going to feel just like threats to you. Threats to your life. The unhinged can take these threats so seriously it can go as far as murder, and even murdering one's own family. Murdering the people closest to you to protect some unpleasant truth (raping your sister, an abusive argument, jealous) about you from being revealed.
They would lose millions alongside losing the love, support and sycophancy of their fans, family and friends. You think this business of covering up lies is limited to big court cases, and Lance, and Tiger? No. It's here. It's part of the fabric of society, and I'm going to dig out a can of worms I've been sitting on, and show them to you.
Make a cup of coffee, and set aside 5, make that 10 minutes to concentrate on this rusty tin of vrotting baked beans. Ready? Here we go.
Yes, covering up a persona also happens in the real world, and it happens a lot. Not murder, necessarily, but scheming and repression and the behaviour that is meant to undermine you, and at the same time benefit the perpetrator. I'm not sure whether we should be surprised at this, or even wounded. Isn't it natural?
It's Natural
Think about the natural world...think about Impala...you have one bachelor with...like...50-100 females. The lone bachelors are cast out and it's a pretty lonely life for them. Meanwhile the dominant stags get all the action.
I want you, the reader, to think of the females, as booty. As in treasure. As in the sort of the stuff you accumulate when you work hard, arrange your affairs properly, and have the presence of mind to know your friends from your enemies rivals.
In the schema, the mythos of the Impala, the dominant male, in rutting season, has a pretty good run of the veld. That is until another male emerges and then there is a duel for supremacy. Duel done, the females head off to camp with the dominant male.
Nature has programmed this system, so that only the strongest and best males breed with the females. This system is in place because it works. It serves to advance the interests of some of the individuals (notably the dominant males, and their females, who are protected from unsavoury characters and predators) and implicitly enhances the group. The best individuals survive, and effective survival in nature must be enforced.
If you're in this sytem, the best place to be if you want to be at the top, and see the most action, and get the most credit, is in the herd run by one dominant Impala, the territorial male. You want to be him. It's lkike being the CEO or a Hollywood Actor. On the other hand, if you'd like to relax in your office cubicle, have lunch, mind your business, kind of be a nobody (and hey, that's also okay) then the female herds are your place to be. Bachelor herds are less fun. There's bickering. There's frustration. There's a lot of alliances forming and breaking up. It's kind've a purgatory for losers and outcasts; it's where you go when you can't find an 'in' either with the female herds, or because you've failed to properly challenge the big kahuna running the terriorial show (and for that honor, services as many as 100 females in a season). So this is the setup, thanks Wikipedia:
The social behaviour of the impala is influenced by the seasons. Three distinct social groups are formed in the wet season: the territorial males, bachelor herds and female herds.[22] These groups continually break up into smaller herds and reunite.[4]About a third of the adult males hold individual territories...and may change according to the season.[3] The males demarcate their territories with urine and faeces and defend them against any other male intruders. A study of impala in the Serengeti National Park showed that in 94% of the males, territoriality was observed only for a duration of less than four months.[5] So yes, it's seasonal. It comes and goes. But when it comes it can be a big deal. Below the next paragraph I'm going to reveal why we're in season now. In the schema of this can of worms, this example I'm laying bear, at any rate. First let's look at how this mechanism of being part of a group, or not part of a group works, and why it matters. Pay attention to the Territorial Male, because they are actually running the show, and that's kind of where you want to be (and kind of where I am at, incidentally, in my own working scenario. I run my show, and am answerable to me. I have no vested interests.). How do you know who is really running the show? Simple. Just see how many followers (females) are following him.
During the mating season males prefer small, easily defended territories, and will sometimes reclaim their old ones from previous mating seasons.[12] These territorial males may or may not have breeding females in their territories. The male will try to control any female herds passing through his territory by herding them towards the centre, and will also chase away any bachelor males or juveniles who accompany them.[5] The bachelor herds comprise non-territorial adult as well as juvenile males, and can have about30 members.[3] Individuals maintain distances of 2.5–3 m from one another. Young and old males may interact, but middle-aged males usually avoid one another.[23] The female herds consist of 15-100 individuals, and comprise of breeding herds of females and their young (including young males below four years). The females form clans, and inhabit home ranges 80–180 hectaresin size. There is no distinct leader of the female herd, though animals aged five years or more may move independently.[23]Membership in both bachelor and female herds is variable.
The same is true of lions, where the male big shots must defend their territory and their pride, and expect attacks and be able to ward them off. Sometimes by other lions, sometimes by Hyena. It's the most troubling, in some ways, when you see wolves wiping one another out. I mean entire packs eviscerating rival groups. It's where the saying comes from:
Man is a wolf to man.
It's different of course with Impala. They duel and the loser then heads off into the sunset. Defeated, but not dead. Lions too will scrap a little and then the status quo slots back into place. One of the most shocking things I ever saw was at Shamwari, where an opportunistic male lion who was used to winning, but was already excluded, and wanted to mate so he took his chances. He fought a younger rival and lost. He didn't just lose the fight he was killed. A dead lion is...a very disturbing sight. It takes a lot to kill a lion. A lot of biting and ripping and mauling. So when we found an old male by the side of the road, ripped to pieces...it's disturbing. It's so disturbing I can tell you that the staff at Shamwari said they would not simply let the lion - a once magnificent animal, well known over many years - lie beside the road for all to see, and rot. No, even though what had happened was in theschema of nature, they would bury him. A mark of respect, across species no less, for a fallen friend.
Think about that. Why do we bury some animals, and not bother with others? It is a sign that an animal means something to us, beyond the meaning of its own vitality, and its own Life Force. That's deeply impressive and deeply beautiful to me.
It happens in the human world too, where people go out of their way to advance the hopes of other people, sometimes - well, especially when it's at their own expense it's so heroic. That's Mandela right there. Ghandi. We celebrate these men as true icons of the human story, and we recognise them as among the greatest human beings that ever lived. They didn't serve their own interests. They helped all the animals in the herd. They protected all, and not to further their own interests, but the interests of all.
But I'm afraid it's a fact of life that man is a wolf -sometimes, often - to his fellow man. How the game works is if you can invalidate your rival, you benefit at his expense. Politics works like that. Law. So does freelance journalism.
I don't quite get that stuff, and I think the reason is...I don't feel threatened by other writers. Or photographers. The few that are intimidatingly good I try to form friendships with, I don't bear a grudge or an agenda. Those who do, in my opinion, are that miserable lot who don't really know what to say, or why they're saying it. They seem to be the frustrated bachelor's who aren't properly in any where and are suffering existential angst as a result. My advice to you - you are probably in the wrong business. You get great writers and artists who suffer and are poor their whole lives, and you get really terrible folk with no talent who believe themselves to be better than they are who also remain poor, and struggle to emerge. Take it from me, you rather one to be the guy with real talent that's struggling and getting nowhere, than the other guy.
For the other guy it all ends in tears, and he is so distracted by his misery and frustation and over-reach, because he's in the wrong place, the wrong herd (go play in your cubicle with the tea drinkers, it's safer) he doesn't see the lion stalking him in the thicket. Maybe he has his eyes set on the territorial male, but whatever it is, he doesn't see Death until those claws sink into the jugular, and the little Life Force you had drains, and then is gobbled away. If you're not hacking it, and never have any followers, and you're doing the PR thing permanently and no one is paying attention, please, for the love of God, stop. Stop, take stock, and go do something else.
Go and seek out another living of some kind.
Behind the Bravado
Remember I said if you're that guy that doesn't have any talent to speak of, walk away? What do you think happens when you insist? When... behind the bravado is...let's face it...not the highest standard of work. There is a caricature of the struggling artist, and the struggling writer...there's the equipment, prominently displayed, the camera, the notebook, the phone...and I think it's especially sad where you see a committed fundamentalist with all the right gear, all the right contacts, the right CV, the right everything, just their work is...well, something is wrong with it. It's dull. And you recognise them immediately because they are desperate for something from you. A contact. What settting did you use? How did you do this? How did you do that? And of course you mean well, and you try to help. But there is something, I'm sorry to say, unfortunate, and perhaps not fair, about the sighted trying to lead the blind.
The blind leading the blind has a poetic irony, but when the man who sees and do's has to tolerate idiots (and idiots who don't know they are idiots, and of course, he doesn't know that either) then it's not a good situation for anyone.
At 36 seconds, Loki does what I sometimes feel I do myself. But more like a primal scream:
Loki: Enough! You are, all of you beneath me! I am a god, you dull creature
"Though [Reeva's] personality sparkled like the night sky, she was carrying a bit of extra weight." - Necessary?? http://t.co/7pBd76UP
— Rebecca Davis (@becsplanb) February 14, 2013
No, not because Engler wrote about her. Also not because he immediately provides a disclaimer [He says he's her friend, sort've, but not actually, but it's implied that she is 'my friend'.] Actually Engler is one of her Facebook friends (I checked).
No, none of that is particularly incriminating. But something is. Do you see it? Look closer...
It's the date and time. We know now Reeva Steenkamp was shot to death on Valentine's Day (14 February 2013) at very close to 03:17.
Oscar Pistorius skiet sy vriendin in sy huis dood omdat hy glo dink sy is 'n inbreker.
— Beeld (@Beeld_Nuus) February 14, 2013
But the time of the article is 07:28 and the breaking news tweet is:
The second breaking news tweet is five minutes later:
Hectic News @Beeld_Nuus is reporting that Oscar Pistorius shot & killed his girlfriend this morning thinking she was a burglar.
— Aki Anastasiou (@AkiAnastasiou) February 14, 2013
I could follow the conspiracy theory and ask why does it actually show 5 hours earlier on the screengrabs (ie 03:03 and 03:08, but that would put the tweets before the murder (alleged, right?) but I'm pretty sure there is a techy reason for that.
I'm more perturbed, firstly by Hagen Engler's timing, and secondly, by the Daily Maverick. It's possible Hagen simply made a mistake when he uploaded his story, or that an editor, or subeditor at the Daily Maverick editor back-tracked the time, in order to attract google spiders looking for the earliest news reports. This would allow them to preempt Beeld and possibly Radio702's online coverage. If that's true, and it was purposeful, that's opportunistic and dishonest journalism right there. You're reporting in the public domain about someone who has been shot to death, a crime, and you're going to play games with the time?
I'm not going to deal with those ethics, there's a time and place for that. For now, I'm coming back to Engler. What if Daily Maverick's clocks were right, and he wrote this story at the time published (it's still the present time on the site, if it was incorrect, surely it would have been changed].
Even if Engler wrote his story at 9am or 10am or 11am, that is a pretty damn blistering fast turn around on telling the world about 'my homegirl'. Reeva was shot around 3am. If this story was published the time it says it was published, it means Engler must have been working on it between 5am and 6am. It's also possible that Engler is buddies with one of the first people Oscar called, Justin Divaris, Oscar's best friend.
"At 3 h 55 Oscar called me: "I shot Reeva! I shot Reeva! '' he cried on the phone. A neighbor then took the handset:"You'd better come, this is serious! '' ' between Johannesburg and Pretoria, the wide ribbon of asphalt fully lit at night, has Divaris dark. It was he who introduced Oscar Reeva, three months earlier, on November 4, 2012. Incredulous Here he looks at the scene from the sidewalk. He can see the body of Reeva lying in the living room.And, turning his head toward the garage, discover the champion's head in his hands, his shoulders shaking with spasms.
The day before, he lunched with him! He had even offered him a night with the guys while Samantha, his own wife, very close to Reeva, called on his side to make a canvas they getaway.
Not sure why this is published on a French website. But even Oscar has testified to calling Divaris. If the Daily Maverick's time is right, the only other logical conclusion is Divaris either called Engler, or called someone who subsequently told Engler. Engler then busted his butt to get his story out as soon as possible. What's interesting is that it appeared on the Daily Maverick, which I know pays peanuts, and which suggests to me - I'm speculating, he was turned down by the major dailies. And for good reason, this is particularly poor taste. Her blood was not even cold.
One could check, given that FHM was all about the laddish lifestyle, and Divaris' company was all about fast and flashy cars (a perfect fit for FHM) I wouldn't be surprised if Divaris and Engler were more than aquaintances. Just look at it. Divaris - Engler - Steenkamp/Pistorius - Divaris - Engler? Foreseably Divaris may have known or suspected the 'scoop' (which he had) was worth a lot of money, and so helped out his buddy. Speculation. I don't know. What's not speculation was that this was uploaded at such breakneck speed, then uploaded to Engler's blog the very next day,
But Engler wasn't done yet, that afternoon he did press for AP saying:
"The way I knew her she had had a very long relationship before. So, she wasn't really an opportunist, isn't really the way I understood her. So, you know, one never knows. She is a beautiful woman, so perhaps Oscar was taking his opportunity, but that's just speculation, you know.
But where did these images come from? And does Reeva’s estate, or her family, get to benefit from this massive use of her image?
It appears not.
Copyright in images as intellectual property, while indeed a fraught issue, is mainly an area of contestation between photographers and employers. Usually the creator of the “artistic work”, ie. the photographer, will own copyright in the images. Exceptions are if the images are created in the course of his/her employment. If a client commissions a photographer to take an image, copyright rests with the client.
Writing on the website GoLegal.co.za, intellectual property lawyer Mariette du Plessis points out that these exceptions can all be changed by prior agreement between the photographer and the employer.
Models, though, appear to left out of this arrangement.
Prime sources for Reeva pics have been Tropika Island of Treasure, the branded reality show she was set to appear in at the time of her death. Stills images from the Tropika show have been supplied free to news outlets, although Britain’s The Independent has reported production company Stimulii charging $3 000 a pop to use a video clip from the show, raising questions of profiteering from her death.
Local picture agency Gallo Images has been selling images of Reeva, including images of her shot for Media24 magazine title FHM. An FHM bikini pic of Reeva graced the cover of Britain’s The Sun on Friday morning, prompting a Twitter storm over the ethics of featuring a murder victim in her bikini.
“Reeva pics are selling. But at about the same rate as any other celebrity,” said a cagey Gallo MD, Pam Wills. “We’ve had lots of requests for pics of her and Oscar.”
The ethics of selling images of dead people is a minor subplot to the shock and outrage of the unfolding Oscar-Reeva saga. It lives alongside such other considerations of commerce vs commiseration as should the Tropika show be broadcast, should Oscar’s sponsors drop him, and should journalists camp outside the late girl’s family home to film her shattered dad and add an extra dimension of tragedy to this grim tale.
Our morbid fascination has been piqued, and a long-established industry is ready to feed that. Some of us will benefit from it. Reeva Steenkamp will not.
And on July 1, just a few days ago, Engler writes this for the Sunday Times:
I felt some people should say something about her, what she was like as a person.
So I tweeted something. Three words, along the lines of “She was lovely”.This precipitated a DM: Did you know this girl? Would you do an interview?
I said yes. And thus began my spell in the media spotlight as “Someone who’s prepared to speak”.
I did some interviews. The interviews precipitated more interviews. And the more I did, the more my number was passed around by journos around the world. I soon realized that, thanks to the global fame of Paralympian Oscar Pistorius – now accused of Reeva’s murder – the appetite for news of the case was insatiable.
In the days after her death, I could mark the passage of the sun across the face of the earth by the calls I was getting on my cell. It went New Zealand, Japan, Australia, Singapore, Norway, France, UK, USA… I was woken up at 4am for radio phoners, newspapers called constantly – the Independent, the Mail, the Telegraph, The Guardian, L’Equipe… I forget who all.
Where can we get pictures? Remember, we met the once? We’ll pay you for your time (that never happened) I got calls from correspondents who sounded cute and sexy on the phone. Cool people you wouldn’t mind having a beer with…
Softie that I am, I’d always break down and meet them. Sometimes a TV crew would occupy my home for four or five hours. I met crews in their homes, at restaurants, hotels. And after a while I began to feel some kind of way.
Sure, I was telling Reeva’s side of the story, but I felt a little, well, used.
You might look and feel a bit like I did once the world’s media were finished with me. Wide-eyed. Paranoid. Embarrassed.
Can I be honest. I don't buy it. I don't buy the level of friendship he is portraying. He turned the poor girl away twice out of the three times she approached the magazine, which to me shows less about his friendship with her and more about the average tendency of the average editor to be a dick. Apologies to the good and decent editors out there (I'm sure you do exist), if this isn't you.
Writing this story as fast as possible to crow about his relationship with Reeva is sufficiently doos-like behaviour, if his clever (but actually not so clever) obfuscations about his friend, but sort've friend, special friend, different friends didn't feel so ill-timed and ill-motivated.
Perhaps I'm being unfair? Or unfairly attacking Engler? Have a look at the top three or four comments in response to Engler's story, which is media opportunism - vile and cruel - at its worst.
One comment sums up the spirit of just how inappropriate (desperate) Engler is here: Shallow and glib...insubstantial...your claim to fame in knowing her...hilarious that you should distance yourself from the superficial model industry...
Are you ready for a quick rant? The idea, in the context of a trial or court case, that we shouldn't judge is TOTALLY bogus. It's asinine!
In America and other countries with juries, they have to be protected from these opinions in order to independently form their own. And then they collectively are asked to judge and their consensus is the result.
South Africa has no jury system. The judge needs to avoid contaminating her thoughts through media and other streams, but that's her prerogative, not the media's (well, mostly true, and true to a point). The only area where judgement is really a vital issue is defamation. Thus people on twitter repeatedly saying #LIAR and #GUILTY can certainly be held liable if an offender is subsequently acquitted. And sued. But, of course, an accused party would have to prove they are innocent of the alleged defamation too. Even so, it is wise to be slightly measured and hedge our statements and opinions with "possibly" and "I think" etc. Speculation is allowed. Judgement - I prefer the words analysis, discernment, reasoning - in other words an extended thought process, is both necessary and important.
The reason - mostly biblical - behind not judging is we allow people to be themselves, we don't discriminate or bear false witness. Now, when you have mountains of information which is the whole point of a trial, to interrogate the truth...now that you should have bucket loads of information to work with....now you still don't judge?
Do you not judge the groceries you buy, carefully choosing the best produce? Do you not carefully evaluate a potential partner. And here, in a court scenario where this is exactly what is at state - a wrongdoing has been committed and the accused is asked to account, and then be judged. When the public has access to these records, yes, as society they SHOULD be interested in the possible guilt or innocence. How you express that is another matter entirely. But this thought of NEVER judge, and don't judge a book by it's cover, is garbage.
Failure to discern is what's wrong with the world, and thinking this is one's Christian duty (not to think) is, frankly, terrifying. Might as well start a war then, and not judge its merits...judgement is wrong, but war is right. Please!
This weeks Oscar trial and tribulation has prompted me to form opinion on the matter of “vulnerability” and its benefits or curse.
Defence witness Derman from my interpretation and understanding of his statements in court, is suggesting that disability creates vulnerability and thus a softer approach to crime and reaction. He has established this, not from his interactions with many people with disabilities broadly, but rather his interaction with Oscar.
If these statements and observations of Oscar were accepted by the court, then one of my questions would be, why is “vulnerability”, the effects of and the consequences of not dealt with in our formal Rehabilitation programmes. 900 people per annum in South Africa become spinal cord injured and this constituency of paraplegics and quadriplegics are far more limited in their agility speed, height and self defence yet we don't promote the brand of vulnerability. We are vulnerable in many ways, by our inaccessible environments and societies attitude and mis-understanding of our lifestyle needs, attributes and abilities.
Another outcome would be that medical aid insurance companies would have to fund psychological and psychiatric support for “vulnerability”, as a prescribed minimum benefit?
Furthermore would Employers rebuke the Employment Equity Act requirements for fear of the safety of their staff as a result of our vulnerability and perceived risk in the workplace. Would reasonable accommodation for staff without disabilities be “bullet-proof” workstations “? Will we be situated in isolated areas so we are no risk to colleagues. Will we still get jobs.
Are we now allowed to shoot “to nullify any threat”? If it ever happened, that the law changed to suit vulnerable disabled people then there might even be a notion of getting away with blasting people with lead who abuse wheelchair parking bays. That would be interesting. Shopping centres would become killing fields.
We don’t want our own laws. We are happy with the Equality Act (PEPUDA).
Pray the court does not accept this argument that disability causes vulnerability and so we can shoot ourselves out of arguments, threats and confrontations. We would be totally isolated from society
Will there be a new and increased speed limit for us drivers with disabilities? Maybe 160kph?
Or was and is it just OSCAR who has “fright & flight” and gun slinging and speeding allowances as he feels he is vulnerable. You cannot hold up in one hand ,multiple gold medals for being one of the fastest men in the world and a pistol in the other and then declare “vulnerability”.
My opinion is that Oscar has an unusual condition and there are a few more South Africans with the same. “AAAAA” is the acronym for “Anger Arrogance Athleticism Accelerator Attitude”. Throw in bad company, beautiful woman, alcohol, fame, fortune and somewhere along the line, shit is going to happen.
We don’t want to be Painted by the same brush.
My Lady please don't accept this argument. We will be cursed if we are perceived as vulnerable and unpredictable.
Ari Seirlis is the CEO of the QuadPara Association of South Africa (QASA) and has been a quadriplegic as a result of a diving accident in 1985
Over the weekend, and on Monday morning the media and even some lawyers were trumpeting the 'illegal leak' of the re-enactment video a across mainstream media.
This morning, before the trial commenced, I asked civil litigator David Dadic, whom I also interviewed about Oscar's chances of appeal, how Nel was likely to respond to this circus.
@DavidDadic the more I think about it the more I think it's a storm in a teacup. A distraction. Nel's best response is to ignore it. Agreed?
— Nick van der Leek (@HiRezLife) July 7, 2014
@HiRezLife yes I agree.Still haven't seen it, but he will have to be entirely sure of its probative value otherwise may just damage his case
— David Dadic (@DavidDadic) July 7, 2014
Remember, this is South Africa. There's no jury. And a trial by media is less relevant than in many other countries. A good judge simply will not pay attention to the media, in order to maintain an appropriate guardianship of the trial narrative and process. It is the judge that must exercise personal integrity in how he (or she) exposes him (or her) self to the media, or isolates him (herself) from public opinion. Of course, as anyone knows, it is simply a matter of personal discipline (and good judgement)to filter out messages and media that might contaminate one's mindset. The simplest way to do this is of course to avoid the news in its entirety, especially online news, and to a lesser extent, televised news.
This must be done by South African judges and their advisers in order to be able to maintain and apply reasonable and ethical standards in the administration of justice. If the state prosecutor Gerrie Nel had mentioned the video, and let's face it, the video was FODDER to his case, he would almost certainly have found himself tied up what may well have been a ploy laid by the defence (in case their case didn't pan out)...
Note: The defence didn't even use their own version (ie their own video evidence/the re-enactment) because it contradicted their version stated in court, so why wouldn't their opposition seize it?
Because in the trickery of the law, the leak and the way it was framed (note that word) the video material is 'privileged' information belonging to the defense (assuming it was used without their permission). So even if Nel had come across this information fortuitously or even in the public domain, the defence would have an argument that the prosecutor's access to this 'evidence', no matter how it came to his attention, it would nevertheless have prejudiced the defence's case.
Even so, Nel did seem to tease both the media and court by shifting the state's narrative closer to elements from the video (Oscar's ability to run on his stumps).
Oldwage and Nel and Masipa analysing the word 'run' in the context of 'corridor' An elephant in the room? #OscarTrial
Nel is brilliant here because he can (whether he knows or does not know about the video) pretend to know nothing about the video, and yet, at the same time, expect the court and even the defence, to do the same. Isn't that exactly what happened?
At the same time, he can ask questions which have relevance to the video, and place the defence in a crazy position. If he asks them questions and their answers contradict their own video evidence (now in the public domain) this - perhaps no more than hypothetically, strengthens his case. Of course, the court record will simply reflect the defences increasingly fragmenting case.
At the end of the day, not even the defence raised the issue of the leaked video, because if they were to lead this, it would further fragment the already brittle pieces that remain of their crumbling case.
Since this MEDIA STATEMENT has been placed in the public domain, a public response is in order. I wonder, is this statement from Oscar's defence counsel addressed to the media, the public, or indirectly to the state? Or all three? As a member of the public, and a conscientious citizen of society following this matter, and someone who contributes to the media machine, I am disturbed by what seems to be mischievous timing of this 'leak'. The case is about to be finalised, the defence has recently indicated there are half a handful of witnesses left to call (please, no more 'expert witnesses') and let's face it, the defence has been a mess. It's been replete with inconsistencies, and your own experts contradicting one another, besides the accused himself and vice versa. In short, it hasn't been pretty. However, if successful in this application, these failures in the courtroom - made by defence - will effectively be 'struck from the record'. This benefits the defence at a time when the defence, to a lay person, appears to be in a less than strong position. Given the vagaries and selective use of obtuse words, this 'impression' of mischievous opportunism, is reinforced. Can you respond to this? As such, given the above background and rationale, I, as a citizen of South Africa and a member of the public, will query these uncertainties in your statement in a step by step manner. You are of course at your liberty to respond or not respond. Your original Statement is colored green for reason's of clarity. Red highlights my concerns, queries and uncertainties, and you are kindly required to furnish specific factual answers that address these serious questions, as a matter of urgency. Your commique commences as follows, and I quote: Statement/Press Release? Video footage aired by Australian broadcaster>>>Hang on, so they air it despite your threat of legal action...couldn't be much of a threat the, could it...exactly what did you threaten them with and now that they have gone ahead, what action EXACTLY will you be taking against them, if any. Will you let us know?
by Brian Webber, Ramsay Webber Inc.
06 July 2014 - you released this on a Sunday, I knew about this Saturday already. Ok, no biggie)
In October 2013, the Defence Team engaged the services of The Evidence Room, A US-based company specialising in forensic animation. >>>thanks for acknowledging this at the outset. In layman's terms, you asked an animation (production company, someone who makes content iow) to create content on your behalf. The company was engaged to visually map (you mean re-enact right?) the events on the night (the scene of killing of Reeva Steenkamp on 14 February, 2013) of the accident (still referring to it as an 'accident'?). As part of this process, certain video footage was filmed(yes, got that). The “visual mapping” was for trial preparationonly and was not intended to be used for any other purpose. (like, to be sold at a later stage for bucks, if and when needed, or even strategically?)
It has now emerged (total surprise?)that an Australian broadcasterhas obtained some of this footage from The Evidence Room and has just gone to air with it. >>>obtained how?
We wish to make it very clear that the material that has been aired was obtained illegally (okay but you're not making it 'very clear', I can help you draft these sort of notices in future if you like, if clarity if the goal. So can you explain specifically how this material was 'obtained illegally'? And are we talking speeding ticket illegally or we'll-sue-you-for-a million-bucks illegally?) and in breach of the non-disclosure agreement (oh so it was sold to be used at a certain date...and breach is about...TIMING?)with The Evidence Room.
Its usage also constitutes a breach of privilege as this material was produced for trial purposes on the instructions of a commissioner (who is this commissioner guy anyway? It's not Oom Arnold by any chance), and the ownership of the copyright vests in the commissioner.(wow so this is about copyright violation, that's all? For something you made, and wanted aired, just not (?) specifically when it did.) No permission for the disclosure thereof has been given. (Come now, are you absolutely sure about that?) For the family, the airing of this footage constitutes a staggering breach of trust and an invasion of the family’s privacy. (but the family are the actors...were the family forced to film themselves re-enacting or did they actually pay someone from the USA to bring cameras and 'investigate'? And let's be fair...if we are going to talk about staggering breaches of trust, one might ask Oscar - your client - why he shot his girlfriend to death. Isn't that a bigger breach, more worthy of addressing?)
It has come to our attention (how did you find out exactly, and while we're here, exactly when were you informed) that Channel 7 purchased this footage unlawfully.(for how much much, and how much did the the Pistorius family profit from this transaction, directly or indirectly)In addition, during our engagement with Channel 7, we received an undertaking that they would not air any of the material before the end of the trial. (Ooooooooh...so at the end of this cleverly worded PR stunt statement Brian Webber, Ramsay Webber Inc.you admit to engaging with Channel 7 and making mutual undertakings....oookay.)
Whilst we cannot imagine how any of the footage would not support Oscar’s version, (you don't need to 'imagine', there's a lot that specifically contradicts his version and his defence)we will only be in a position to comment further once we have had the opportunity to study what has been aired.(That's your way of closing the door to the vague inferences you've placed in the public domain, rather than addressing the veracity of any of these claims. Your 'right to remain silent'. Okay then, bye bye now.) - ENDS -(Er, no, I think this is just the beginning of your Road to an Appeal. FYIBrian Webber, Ramsay Webber Inc. I've already investigated this option - which we can also call a 'trick' or 'technique' - before you pulled it. Ja, that's also in the public domain. I suggest you read it here in order to appreciate how onto your asses I am.) PS. Please note the conventional meaning for BS in this case is unilaterally altered, for reasons of convenience. For the purposes of this statement, BS should be seen to represent Broad Spectrum. I've also speculated on a motive (here's some additional reading on that as well) and a method, maybe you should check it out so long. Gerrie, please assist ;-)
