The Pistorius defence: fear of crime - or is it really racism?

THE WEEK has not begun well for Oscar Pistorius. Under relentless cross-examination from prosecutor Gerrie Nel, the Paralympian athlete, standing trial for shooting and killing his girlfriend, Reeva Steenkamp, came across as an evasive witness.

Pistorius first told the court he had “accidentally discharged” his firearm, then he said he acted out of fear because he thought his life was in danger, and then he said he did not mean to pull the trigger. Only the second of these claims provides a plausible legal defence.

Because there was no actual threat to Pistorius's life, he cannot rely on the principle of self-defence. However, in South African law, the principle of putative self-defence may apply where the accused genuinely believed his or her life was threatened.

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Where an accused is found to have genuinely believed their life was in danger and that they was using reasonable means to avert an attack on themselves or their property, they may escape conviction for murder on the grounds that they lacked requisite intention.

Pistorius therefore has to convince the court that his vulnerability, as a disabled person living in South Africa, genuinely led him to believe his life was in danger from an intruder hiding behind a closed toilet door. The court must further be convinced that his response – pumping four bullets through the door – was reasonable in the circumstances.

For a person living outside South Africa, this may seem a tough ask. It may not seem remotely reasonable to shoot four “zombie-stopper” bullets into a door without having been directly threatened by an attacker and without knowing who was hiding behind it.

However, at the heart of the defence is an assumption that the high crime rate in South Africa, coupled with Pistorius’s vulnerable state as a disabled person, rendered his actions reasonable.

Life of crime

It is true that the rate of violent crime in South Africa is high. Although the murder rate has decreased substantially from 68.1 murders per 100,000 people in 1995/1996 to 30.3 per 100,000 in 2011/2012, this number remains extremely high. But statistics from different police stations also indicate that violent crime is far more rife in black townships than in the middle class areas where most white people live.

Pistorius lived in one of the many gated communities which have sprung up in response to the perceived threat of violent crime against middle class people. Often built in an identical faux-Tuscan style, houses in such communities are usually also kitted out with an elaborate alarm system, as was Pistorius's. Such communities are typically surrounded by a high wall with an electric fence on top; the entrance to the community is always strictly controlled.

It was exactly because Pistorius lived in a gated community that he could sleep with the windows of his bedroom open. That he lived in such a place therefore presents a major difficulty for the defence. Most middle-class South Africans not living in such communities perform elaborate rituals at night to lock doors and security gates, and to activate alarm systems linked to the offices of private security companies on 24-hour call in the event of the alarm being tripped.

The obsession with violent crime displayed by some middle-class white people in South Africa, usually in fearful discussions at dinner parties and on radio talk shows, has become something of a cliché. It is made fun of by comedians and those wishing to display their enthusiastic support for the so-called “new South Africa”.

Fear or racism?

This fear became prominent around the time when South Africa made the transition from white minority rule to democracy. When white South Africans express an acute fear of violent crime, it can often sound like fear of crime has become a more acceptable way for white people to express their fear of black people and of a government led by black people.

Pistorius needs to convince the court that his alleged fear of an intruder was not irrational and that his response to this alleged fear was reasonable. That is why he has alleged that he himself has on several occasions been the victim of crime.

Because he lived in a relatively safe gated community, the only possible way Pistorius could plausibly claim to have been as fearful as he said he was would be to show that because of his disability he felt especially vulnerable. In effect, he is asking the court not to treat him as a reasonable able-bodied person, but as a reasonable disabled person.

Pierre de Vos is the Cluade Leon Foundation Chair in Constitutional Governance at the University of Cape Town. This article was originally published on The Conversation.