Double amputee Olympian Pistorius was last year found guilty of culpable homicide over the shooting death of his girlfriend Reeva Steenkamp on the night of Valentines’ Day, 2013.
A Supreme Court appeal by the public prosecutor against that verdict will be heard on November 3, but it is the release of the man known as ‘Blade Runner’ on home detention this week, after serving 10 months of a five-year sentence, that has angered those who believe he is receiving preferential treatment.
Why, they ask, was Pistorius kept in the hospital section of Pretoria’s notorious Kgosi Mampuru II jail, rather than in the cells along with the other 7000 inmates who endure wretched conditions and the daily threat of bashings and sexual assault?
Why is he now sitting back in his uncle’s palatial mansion in the upmarket suburb of Waterkloof, while other less wealthy, less famous and less white, prisoners remain behind bars with no hope of early release?
Why was he snuck out of prison at 9pm the night before he was due for release, and why, is black DJ and rapper Molemo “Jub Jub” Maarohanye who was found guilty of the same offence, still in jail after serving three years of his eight years sentence, while Pistorius is free?
According to legal expert Dr Llewellyn Curlewis, a criminal barrister and former president of the South African Law Society, there is no case of “rock star” treatment for the one-time national sporting hero. In fact, his sentence is being served to the letter of the law.
“The fact of the matter is that under South African law there are a number of possible sentences available in a case such as this, from penalty fines, to direct imprisonment, to correctional supervision.
“There are two types of correctional supervision. One involves three years of home detention, with no custodial sentence. The second, that Oscar Pistorius received, is for a maximum five years in prison, converted to home detention after one sixth of the sentence is served.
“For some reason the Parole Board wanted to release Pistorius one month early but the Crown Prosecutor appealed this decision. By the time the appeal was heard the extra month had been served, so he was released on time.
Pistorius served his time in the prison hospital wing because his lawyer Barry Roux successfully petitioned the court that due to his physical handicap and high profile his client would be at risk if housed with the general prison population.
In relation to the inequity between Pistorius’s treatment and that of “Jub Jub” Maarohanye, Dr Curlewis said there was little similarity between the two cases.
Maarohanye was originally found guilty of murder after knocking down and killing four boys and injuring two others with his car when drag racing through a Soweto street. The conviction was later reduced to culpable homicide when his lawyer successfully argued that as Maarohanye was affected by drugs at the time, the killing could not have been deliberate.
“The DJ killed four people, Pistorius killed one,” Dr Curlewis said. “There is that difference, so while Pistorius was given correctional supervision, the DJ was sentenced to direct imprisonment and is not eligible for parole until he has served half of his sentence.
“It is important to note that Pistorius has not been paroled. He is still serving the sentence that was handed down by the judge, and he must serve it under strict conditions.
“It is what we call an umbrella sentence. He won’t just be sitting around his uncle’s house relaxing. There are a number of sub-categories that he must adhere to. These have not been made public but looking at the template of what happens in hundreds of such cases every day, he will have to serve his home detention for the full time remaining in his sentence.
“He will never be allowed to leave the property except under the terms of his sentence — he can’t just go to the movies or the shops. He might have to wear an electronic armband, and cannot go overseas without written permission.
“He must seek re-employment, either in a job or training or whatever is decided. He will have to undertake a rehabilitation program, do up to 300 hours of community service and perhaps pay compensation and have mediation with his victim’s family.
“There are up to 20 different conditions that may be applied and he can be checked by prison officers any time day or night to ensure he sticks to them.”
But much as Pistorius will have to follow the same rules as any other prisoner under correctional supervision, Dr Curlewis said he did receive one piece of preferential treatment.
“It was announced that he would be released on a certain day and he was released the previous night,” he said. “That was not good. If you can’t trust the word of a State department, who can you trust?
“Perhaps it was to avoid a media circus, but why should they do that? My clients in a similar situation have to wait until the government officers are ready. It can be any time between 8am and 5pm. I’ve never had anyone come back at 9pm to make things better for my clients.”
There is a chance that Pistorius’s new-found freedom will be short-lived, with five Supreme Court judges to hear prosecution lawyer Gerrie Nel’s appeal against the judgement of Judge Thokozile Masipa.
Nel never produced compelling evidence that refuted Pistorius’s claim that he had accidentally killed Miss Steenkamp by shooting through a locked toilet door in the mistaken belief that there was an intruder behind it. Instead, he is arguing that Judge Masipa ignored the fact that as an experienced gun handler Pistorius must have known that shooting through the door would have killed someone, and therefore he is guilty of murder.
The appeal judges have to rule that the decision was palpably wrong,” he said. “This is a very politically sensitive case and the appeal judges come from the same background as Judge Masipa. There is no new evidence produced. It is all done by going through the evidence presented in the trial. They will have already done their reading. The decision will only take a few hours, and I think they will give her the benefit of the doubt.
“If they don’t, and Pistorius is re-arrested and taken back to jail for 15 years after two weeks of freedom, imagine the human rights issues. If Barrie Roux has the chance to take this to the Constitutional Court he will, starting with the point that the media was allowed into the courtroom from the outset and this violated his client’s constitutional rights.
“It could drag on for years.”
And through it all, Pistorius will be living in the pool house on his uncle’s luxury estate.
“That’s just the way it is,” Dr Llewellyn said. “The law doesn’t stipulate what type of house a prisoner must live in. Pistorius is lucky he has a wealthy uncle. He could just as easily be serving his sentence in a shack in Soweto.
“Sometimes life is not fair. Sometimes the law is not fair.”
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