How did the State lose?

Most of us, at the beginning of the trial, when so many witnesses testified that they heard the frantic screams of a woman that went silent after a volley of gunshots, thought that is was a slam-dunk case for the State. How could they possibly lose this one? And yet the State did lose on the dolus directus charges. How did this happen?

One of the main reasons why the Judge found in Oscar’s favour was because she believed that the defence put forward the most convincing time line of events.

The timelines as set out in the chronology of events tip the scales in favour of the accused’s version in general. (Record 3322 Line 10)

The chronology of events that the Court accepted and based its judgment on is as follows:

I now proceed to set out the chronology of events:

1. At 02:20 security activated guard track next to the house of the accused.
2. Approximately between 03:12 and 03:14 first sounds were heard. These were shots.
3. Approximately 03:14-15 accused was heard shouting for help.
4. Approximately between 03:12 and 03:17 screams were heard or screaming was heard.
5. Approximately 03:15 accused was seen walking in the bathroom. 
6. 03:15:51, the duration was 16 seconds, Dr Stipp telephoned the Silver Lakes security. 
7. 03:16, the duration was 58 seconds, Mr Johnson called and spoke to Strubenkop security. 
8. 03:16:13 Mr Michael Nhlengethwa made his first call to security. This call did not go through. 
9. 03:16:36, the duration was 44 seconds, Mr Michael Nhlengethwa made his second call to security. 
10. 03:17 Dr Stipp attempted to make a call to 10111. 
11. 03:17 second sounds were heard. These were cricket bat striking against the door. 
12. 03:19:03, the duration was 24 seconds, the accused called Johan
(Record 3299, Line 7 to 26 and Record 3300, Line 1 to 3)

There are two pillars on which this chronology rest – that the “first sounds” were all gun shots (Point #2), and that the “second sounds” were all cricket bat strikes (Point #11). This sequence was Oscar’s version – and it was so accepted by the police, the State, the defence and ultimately the court. The State could never provide a satisfactory explanation for the “first sounds” while believing that the “second sounds” were  the gunshots.

In this post we will convincingly show that there is actually no evidence that ALL the bat strikes came after the gun shots – it is only an assumption – one that is actually not supported by the acoustic evidence. You may argue that there is solid evidence that he broke down the door after the gunshots. That is true – BUT – and think carefully about this – after the last strike the door panels were only slightly damaged, still intact and in place. The door was not “broken down” by the bat strikes – it only caused the damage that allowed Oscar at some point to pull/push/pry the panel out.

How did this notion that all the bat strikes came after the gunshots start?

Let’s look at the cross-examination of state witness and forensic expert Colonel Vermeulen (who worked for the Scientific Analysis Section of the Forensic Science Laboratory in Pretoria):

Roux: Now, if we look at this door, it is consistent and I think it is conclusive in fact. If you disagree we can go through it, that when the shots were fired the door was intact. It was not broken.
Vermeulen: That is true M'Lady.
Roux : What is your view? When was the door hit? When was the door hit?  Hit with the bat, before or after the shots? 
Vermeulen : M'Lady I would say the door was hit after the shots. When he ... some part of it broke after the shots. Because if you look at the crack down here, it enters this bullet hole on the one side and it exits on the other side. Well it enters on the one side and exits on this side. So what this tells me is that there had to be a hole in the door before this piece broke off, otherwise the crack would have gone straight through. (Record 657 Lines 8–20)

Now before we analyze Vermeulen’s testimony – imagine for a moment that you have never heard of Oscar and Reeva and of the events of that night. Your mind is a clean slate and all you know is that we have a door that got hit three times with a cricket bat, got shot at 4 times and whose panels then got broken out.

First look at this blue square with two dots:

Which dot did I make first? The red or the yellow? It is impossible to say. With the next square the situation is different. Here the yellow dot is clearly on top of the red one and one can thus confidently say that the red dot came before the yellow one.

What we have on the door is like the first square – the bat marks and the bullet holes do not intersect – they are on completely different areas of the door – it thus IMPOSSIBLE to say what came first and what came second.

The photo above shows the four bullet holes. The three bat strikes Oscar delivered to the door were all well above the door handle by about 300–400 mm. There is thus a clear physical separation between the bat strike locations and the bullet holes.

One therefore doesn’t have to be a forensic expert to understand and agree that, based purely on the physical evidence, it is impossible to tell the exact sequence of marks and holes on the door. In the same way that it is impossible to look at these four bullet holes on the door and to determine the exact sequence of the shots. For that one has to look at other evidence inside the toilet and on Reeva’s body.

There is a crack that runs from the location where the bat penetrated the door directly into hole D. This seems to indicate with a fair degree of certainty that that the panel was broken out after the bat strikes and the gunshots. An this is also what Vermeulen says:

When he ... some part of it broke after the shots. Because if you look at the crack down here, it enters this bullet hole on the one side and it exits on the other side. Well it enters on the one side and exits on this side. So what this tells me is that there had to be a hole in the door before this piece broke off, otherwise the crack would have gone straight through.

However, where Vermeulen goes horribly wrong – and in essence saved Oscar from dolus directus – is when he said that this proves that the bat strikes came after the gunshots – while it is only proof that the panels were pried/pushed/pulled out after the last gunshot!

If we dispute the notion that all the bat strikes came after the gun shots – what then happened?

Consider this scenario: After Reeva locked herself in the toilet, Oscar hit the door twice with the cricket bat, a third strike was to the metal plate. These strikes were made to scare and to intimidate Reeva. Cornered and afraid Reeva screamed for help. Oscar then fetched his gun and fired four shots through the door. Immediately afterwards Oscar regretted his actions – now he wanted to save Reeva – in a panic he grabs the bat and gives the door one more hefty strike – this penetrated the door – allowing him to pry the panel loose and out.

The animation below illustrates the above sequence of events – two strikes with the bat – then the four gunshots – then one last bat strike. Then the crack, that was initiated by the last bat strike, propagates towards the bullet hole as the panel is pried/pushed/pulled out. With further pushing/pulling a new crack develops from the bottom of the hole.

Based purely on the evidence on the door this scenario is as plausible as Oscar’s version and will in the end produce an identical outcome as Oscar’s version. Before Oscar broke the panel out – on both versions there were 3 strikes and 4 gun shots to the door.

To determine which version is more plausible we will later look at which one is supported by other evidence presented to court.

So after Vermeulen’s flawed analysis all that the defence had to do was to pay a few experts of their own to agree with Vermeulen and the Judge would have had no option but to accept Oscar’s version.

343. A further difficulty for the State is that Vermeulen’s evidence, confirmed by Dixon and Wolmarans, is that the door was damaged by the cricket bat, after the shots had been fired. (Record, Vermeulen 657, lines 14–15), (Record, Wolmarans 2378,, lines 9–15), (Record, Dixon 1962, lines 11–14).

This is what Roger Dixon said:

This would be … the hole there, which you see is split by a crack on either side, a top and bottom, is the bullet hole that was referred to as bullet hole D. It is on the side of the door panel, that has got a taper or a bevel to it, where it goes into the frame.

What does that indicate to you? What was first? The shooting or the hitting with the bat?

 --- Okay the crack on the left hand side, going up, which terminates on the left side of the bullet hole and the crack coming down from the right, which terminates on the right side of the bullet hole, show that when the crack, the damage to the door was inflicted with the cricket bat, the bullet hole was already in position. Because if the bullet hole came afterwards and there was a pre-existing crack, the bullet hole would cut a chunk out and the termination of the crack, would be continuous, the top and the bottom.

Would line up? 

--- Would line up. Here your weakness in the grain of the door, stops where you have got a hollow. It cannot propagate and that was coming down by the sides. I do not think that is in dispute. That was also the evidence of, Colonel Vermeulen.

This is what forensic expert Wolmarans said:

The breaking of the toilet door by the cricket bat. I agree with Colonel Vermeulen that the cricket bat was used to strike the upper door panel of the toilet door in order to break the door open.  I also agree with Colonel Vermeulen that the door was first damaged by the four shots that perforated the door and thereafter by the cricket bat. M'Lady, that is on the next page, page 29 and you can see it is in a straight line, everything with the bullet hole in the middle.

That is the shot that you fired at the meranti door? 

--- That is correct, M'Lady.

When the door was first cracked and then you fired the shot.

--- The door was first cracked and then the shots was fired.

Record 2378 Lines 9–26

Wolmarans actually cracked a meranti door and then shot a hole through the crack – to prove that bullet hole came before the crack. In what way does this experiment prove that ALL the bat strikes came after the gunshots?

Where Vermeulen claimed that the crack was made when the panel was broken out – Dixon and Wolmarans claimed that the last bat strike caused a crack that travelled more than 400 mm down to Hole D. Now even if Dixon and Wolmarans are correct – ALL this proves is that ONE bat strike came after the gunshots – there are no cracks running into the other three bullet holes.

Which version is more plausible? Let’s look at the acoustic evidence.

  • NOBODY testified that the “first sounds” consisted of 4 bangs, while we have the testimony of Burger and Johnson that the “second sounds” consisted of at least 4 bangs.
  • Read here for our reasoning why the four thuds that Mrs Estelle van der Merwe heard were actually the “second sounds” and not the “first sounds” (as argued by the defence).
  • If the first sounds were 140 dBA gunshots why did only the Stipps hear it? (Mrs Nhlengethwa only heard one bang)
  • Between the first and second sounds the Stipps, Burger and Johnson heard a woman scream. This would not have been possible if the “first sounds” were gunshots.
  • Read here for our reasoning as to why it is much more likely that the Nhlengethwas (the immediate neighbours who said that they heard Oscar scream soon after the “first sounds”) were the ones that made a mistake in identification.

If we accept Oscar version then we have to accept that the state witnesses Burger, Johnson and the Stipps were wrong, and if we accept that our version is correct then we have to accept that the Nhlengethwas were wrong. And we have shown in our book Oscar vs The Truth how the state witnesses would have heard any screaming louder and clearer than the Nhlengethwas.

The other neighbours – the Motshuanes – who also testified that they heard Oscar scream – didn’t hear the first or the second sounds – so it is not possible to reliably “place” what they heard within the time line. However, if one looks at the acoustics it seems highly unlikely that they would have heard very loud screams emanating from the bathroom or the toilet – so it is more likely that what they heard occurred after the “second sounds” as Oscar ran through elsewhere in the house wailing and crying.

If the third bat strike came after the four gunshots, then why didn’t anyone hear it? The Stipps were so distracted trying to get dressed and making phone calls calling that they only heard 3 of the 4 gunshots – not hard to imagine that they might have missed the much softer bat strike. Burger and Johnson were simply too far away to hear the much softer bat strike in the aftermath of the 4 gunshots. The Nhlengethwas did even hear the 4 gunshots.

To conclude: The defence’s timeline – which played such a significant part in the outcome of this case – was based on nothing but a seriously flawed and unsubstantiated assumption.

Order Oscar vs the Truth at