Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
15 February 2013

Another woman is dead today

Another woman is dead today. She may be one of the many women who die every day at the hands of their spouses or partners. Her name is Reeva Steenkamp. The only shocking thing about her death is that most of us only know her name because she was allegedly shot and killed by her famous boyfriend, Oscar Pistorius. As is often the case when allegations are made about spousal abuse or killing, many people have jumped to Pistorius’ defence and expressed sympathy for him. But how could they possibly know whether he is guilty or innocent?

When news broke that Oscar Pistorius allegedly shot his girlfriend, initial reports included a mysterious exculpatory explanation: he mistook her for an intruder. No one knows where this explanation came from. It was as if it was unthinkable for the journalists who reported on this that a man (a white man, a sportsman), could ever deliberately harm his girlfriend.

Of course, we know it is not unthinkable. It happens every day in all corners of South Africa. Men of all classes and races abuse and sometimes kill their partners. It is not unthinkable at all. To think it is unthinkable is to be in denial about the epidemic of violence against women in our society.

As I write this, I have no idea what happened in the early hours of Thursday morning in the house of Oscar Pistorius. The facts might eventually show that he is guilty of murder or culpable homicide. The facts might show that he is innocent. All we know is that a woman is dead and that Pistorius is alleged to have caused her death.

A court will eventually decide on Pistorius’ criminal innocence or guilt. But – as was the case when allegations of spousal abuse by Tokyo Sexwale was reported in the media — others seemed to have made up their minds with no evidence to back up their belief. He is innocent. He is guilty.

Some have decided that Pistorius is innocent (because he is a sport star? because he is white? because he is middle class?). They say: “Poor Oscar, we support him in his hour of need.” But they do not know whether they are supporting a murderer or not.

How can they know he is innocent? Is it because they respond in solidarity to the plight of another man and wish to erase the possibility that a man could kill his partner? Are they in denial about the violence that endanger the lives of so many women in South Africa on a daily basis? That would be bizarre as men hurt their partners every day: men of all races and classes and all walks of life. Are they responding to a famous person, assuming that famous people do not abuse or kill their partners?

There has been no court case to determine his innocence. There has also been scant reporting on the circumstances that led to the death of Reeva Steenkamp. It is rather ironic that many of the same people who assume Oscar is innocent would assume that any allegation of corruption made in the media against a politician is true — also long before a court case and also when little evidence on the alleged corruption have been revealed by the media.

Just as troubling is the fact that others seemed to have assumed he is guilty (because he is white? because he is famous? because he is disabled?). Many of those who have already decided that Oscar is guilty, invoke the “innocent until proven guilty” mantra whenever a politician is accused of corruption (or spousal abuse). They are not consistent.

It is as if it the facts are irrelevant and we either believe in a person’s innocence or guilt based on the identity of the person accused of the crime and not based on any facts that might have been revealed.

How could they know in either case whether a person is guilty or innocent, whether he should be supported or shunned? On what facts are they basing their assumptions?

One thing nobody has argued is that the media should not have reported on the allegations that Pistorius shot and killed his girlfriend — unlike with the allegations against Tokyo Sexwale. Some balk at this comparison. In the case of Tokyo no one is dead. There is no lifeless body — only a legal document containing an explosive allegation of spousal abuse.

But this, also, is telling. Often allegations by women that they have been raped or abused are dismissed because the rape or the abuse was not “violent enough”. “She was not stabbed or shot or mutilated, so the allegations cannot be true.” That attitude is part of the problem around rape and spousal abuse and the difficulties of being believed when you report it.

Once again, we do not know whether Pistorius murdered his girlfriend or not. Neither do we know whether Sexwale physically abused his wife. We do know that allegations have been made in both cases and we should expect the media to report on it and try and find out more facts. The abuse and killing of women in South Africa is a national shame and the media has a duty to report on it.

This the media will hopefully do in an unbiased manner. It must try to ascertain as many facts as possible and must report on them accurately and without favouritism. As more facts emerge it will become more plausible to make a tentative (but always provisional) personal assessment of the situation, an assessment that must always be subject to the final word of the court.

Meanwhile another women is dead today. Because Oscar Pistorius is famous, I fear that many of us (including many in the media) will forget this. Oscar is not dead. Reeva Steenkamp is. We should not forget that. Neither should we forget that many women are abused or killed by their partners every day.

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