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  1. #46
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    Quote Originally Posted by Belgarion View Post
    The application for leave to appeal will be heard at the ConCourt because it has to, but in my opinion there is not an ice creams chance in hell of the appeal being granted. Unless of course one believes the Con Court are in the mood for changing the law just to suit Pistorius, but in reality that's not going to happen.
    If all the 11 judges at the CC really do need to skim read this as part of of the pre-consideration of whether to "hear " the appeal I wonder if they actually even meet as a full team to vote on it unless it's part of a "batch lot".

    Because of the practicalities and time-wasting I was assuming that with flimsy appeals like this one, and in this first stage, there wouldn't even be any oral discussion by the full group of 11. ( IDK the proportion of dead duck appeals they actually receive but there must be some kind of prioritisation of their time so it is spent on more important, indeed actual constitutional matters. I also guess they also employ a great many support legal staff who perform pre-readings.)

  2. #47
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    Quote Originally Posted by cottonweaver View Post
    If all the 11 judges at the CC really do need to skim read this as part of of the pre-consideration of whether to "hear " the appeal I wonder if they actually even meet as a full team to vote on it unless it's part of a "batch lot".

    Because of the practicalities and time-wasting I was assuming that with flimsy appeals like this one, and in this first stage, there wouldn't even be any oral discussion by the full group of 11. ( IDK the proportion of dead duck appeals they actually receive but there must be some kind of prioritisation of their time so it is spent on more important, indeed actual constitutional matters. I also guess they also employ a great many support legal staff who perform pre-readings.)
    There are a number of commentators who do say that Pistorius may well get a chance to appeal to the Con Court. Apparently Roux, even before the trial, objected to it being televised and at the end of the trial complained certain Defence witnesses refused to appear because it was being televised. I happen to think the witnesses who refused to appear is another of Roux's lies "for effect". The reluctance to agree to the trial being televised seems to have been recorded and therefore true. Maybe the Con Court will feel this needs looking into if it is raised BUT I hardly see what difference it would have made to OP's story which is what convicted him. Cameras or not, the story doesn't change. He wasn't being judged by a jury and I cannot believe it made any difference to Masipa and her assessors' views.

    Anyone know what could happen if the Con Court agreed that the televising of the trial was unfair to OP? Where would we go next if that were to be the case?

    I am sure one or more of our legal eagles will know what might happen.

    http://www.heraldlive.co.za/defence-...torius-appeal/
    InFebruary, just weeks before the trial began, Roux, arguing against theapplication, said it would be unfair to broadcast the trial as his client wouldbe prejudiced.
    “Why canthis not be like any other trial? Why is he different?” Roux argued at the time.“Does it mean if you are well known your rights can be infringed and violated?”


  3. #48
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    Quote Originally Posted by Interested Bystander View Post
    There are a number of commentators who do say that Pistorius may well get a chance to appeal to the Con Court. Apparently Roux, even before the trial, objected to it being televised and at the end of the trial complained certain Defence witnesses refused to appear because it was being televised. I happen to think the witnesses who refused to appear is another of Roux's lies "for effect". The reluctance to agree to the trial being televised seems to have been recorded and therefore true. Maybe the Con Court will feel this needs looking into if it is raised BUT I hardly see what difference it would have made to OP's story which is what convicted him. Cameras or not, the story doesn't change. He wasn't being judged by a jury and I cannot believe it made any difference to Masipa and her assessors' views.

    Anyone know what could happen if the Con Court agreed that the televising of the trial was unfair to OP? Where would we go next if that were to be the case?

    I am sure one or more of our legal eagles will know what might happen.

    http://www.heraldlive.co.za/defence-...torius-appeal/
    InFebruary, just weeks before the trial began, Roux, arguing against theapplication, said it would be unfair to broadcast the trial as his client wouldbe prejudiced.
    “Why canthis not be like any other trial? Why is he different?” Roux argued at the time.“Does it mean if you are well known your rights can be infringed and violated?”
    I'm not sure I follow you, he has already appealed and it's not one of the grounds. Additionally, he didn't appeal within the requisite time limit after the trial. I think I'm correct in thinking that ship has sailed..

  4. #49
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    Quote Originally Posted by Interested Bystander View Post
    There are a number of commentators who do say that Pistorius may well get a chance to appeal to the Con Court. Apparently Roux, even before the trial, objected to it being televised and at the end of the trial complained certain Defence witnesses refused to appear because it was being televised. I happen to think the witnesses who refused to appear is another of Roux's lies "for effect". The reluctance to agree to the trial being televised seems to have been recorded and therefore true. Maybe the Con Court will feel this needs looking into if it is raised BUT I hardly see what difference it would have made to OP's story which is what convicted him. Cameras or not, the story doesn't change. He wasn't being judged by a jury and I cannot believe it made any difference to Masipa and her assessors' views.

    Anyone know what could happen if the Con Court agreed that the televising of the trial was unfair to OP? Where would we go next if that were to be the case?

    I am sure one or more of our legal eagles will know what might happen.

    http://www.heraldlive.co.za/defence-...torius-appeal/
    InFebruary, just weeks before the trial began, Roux, arguing against theapplication, said it would be unfair to broadcast the trial as his client wouldbe prejudiced.
    “Why canthis not be like any other trial? Why is he different?” Roux argued at the time.“Does it mean if you are well known your rights can be infringed and violated?”
    The application of leave to appeal to the ConCourt is in respect of the decision of the SCA only. The time limit to appeal such matters as televising the original trial, witnesses not appearing, etc elapse long ago and cannot be raised at the ConCourt (thankfully).

  5. #50
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    Quote Originally Posted by Tortoise View Post
    I'm not sure I follow you, he has already appealed and it's not one of the grounds. Additionally, he didn't appeal within the requisite time limit after the trial. I think I'm correct in thinking that ship has sailed..
    You are right it has not been mentioned and so therefore cannot be in the appeal. I been reading so much past "history" today I quite forgot it wasn't included in the Appeal. Thank you for pointing it out.


  6. #51
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    Quote Originally Posted by Belgarion View Post
    The application of leave to appeal to the ConCourt is in respect of the decision of the SCA only. The time limit to appeal such matters as televising the original trial, witnesses not appearing, etc elapse long ago and cannot be raised at the ConCourt (thankfully).
    Many thanks. So only the arguments produced during the SC Appeal can be used in any Appeal to the Con Court and the leave to appeal has already been filed.


  7. #52
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    Quote Originally Posted by Interested Bystander View Post
    You are right it has not been mentioned and so therefore cannot be in the appeal. I been reading so much past "history" today I quite forgot it wasn't included in the Appeal. Thank you for pointing it out.
    s'okay, I don't think you're alone, I've heard some legal commentators mentioning it too.
    Last edited by Tortoise; 02-19-2016 at 05:11 PM.

  8. #53
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    Quote Originally Posted by Tortoise View Post
    s'okay, I don't think your alone, I've heard some legal commentators mentioning it too.
    I have another question I need sorting please. Can you or any of our other legal eagles help please?

    I read this a while back and need to get it straight in my mind. I am a little confused (not unusual). I read it as meaning that the SCA were perfectly within their rights to determine the facts of a case but obviously the OP camp thinks that is completely wrong.

    The Court hears appeals on fact and since there are no jury trials, it has a relatively wide discretion to make its own factual findings. Because of this jurisdiction, judges have to read the record of the full proceedings in the lower courts.
    http://www.justice.gov.za/sca/aboutsca.htm

    It clearly says here that the SCA hears appeals on fact and that it has wide discretion to make it own factual findings. However I understand the Prosecution can only appeal on points of law. What exactly does this mean with respect to the SCA’s OP Judgement and the OP Appeal to the Constitutional Court that the SCA had "acted unlawfully and unconstitutionally" by rejecting factual findings of the original Trial and replaced it with a contrary factual finding of its own? If it is the PA who is appealing, is the SCA restricted to only passing comment and judgment on points of Law?

    I expect I am missing something but it would be good to know what.


  9. #54
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    Quote Originally Posted by JudgeJudi View Post
    From what I've read, it's only children aged between 16 and 18 who can have the mandatory minimum sentence reduced by up to half.
    Perhaps on that basis maybe Roux will try to get his sentence halved on the grounds he behaves like a bad tempered teenager when his sense of entitlement is threatened
    Last edited by Belgarion; 02-19-2016 at 06:17 PM.

  10. #55
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    Quote Originally Posted by Interested Bystander View Post
    I have another question I need sorting please. Can you or any of our other legal eagles help please?

    I read this a while back and need to get it straight in my mind. I am a little confused (not unusual). I read it as meaning that the SCA were perfectly within their rights to determine the facts of a case but obviously the OP camp thinks that is completely wrong.

    The Court hears appeals on fact and since there are no jury trials, it has a relatively wide discretion to make its own factual findings. Because of this jurisdiction, judges have to read the record of the full proceedings in the lower courts.
    http://www.justice.gov.za/sca/aboutsca.htm

    It clearly says here that the SCA hears appeals on fact and that it has wide discretion to make it own factual findings. However I understand the Prosecution can only appeal on points of law. What exactly does this mean with respect to the SCA’s OP Judgement and the OP Appeal to the Constitutional Court that the SCA had "acted unlawfully and unconstitutionally" by rejecting factual findings of the original Trial and replaced it with a contrary factual finding of its own? If it is the PA who is appealing, is the SCA restricted to only passing comment and judgment on points of Law?

    I expect I am missing something but it would be good to know what.
    I'll try to give it a go.

    The prosecution, as you say, may only appeal on points of law. That does not mean however that the SCA can only say - yes an error of law was made, well done for spotting it, bye bye.

    The SCA has the powers, deriving from the Criminal Procedure Act, to determine that there has been a misdirection of law and then to order a retrial or, amongst other remedies to - "give such judgement as ought to have been given at the trial."

    The SCA judgement states at para 46 -

    "the option which most readily presents itself as being in the interests of justice is to consider whether on the facts found proved, the trial court erred in drawing the inference it did as to dolus eventualis. This is so as in an appeal of this nature this court is in as good a position as the trial court in drawing inferences of fact from proven facts."


    Thus the SCA is empowered to make new inferences of fact, and as stated in the next para (47), "to consider all of the evidence relevant to the issue, before applying the correct legal test."

    The DT says in its appeal that the SCA impermissibly rejected factual findings of the trial court, and makes unsupported claims that PPD was a finding.

    In reply, the PT says that the DT has failed to show that the SCA "erroneously amended or substituted any of the primary factual findings of the trial court."

    In my view it was not a proven factual finding of the trial court that Pistorius fired the shots with lawful intent because he was in fear for his life, it was merely an untested repetition of his version, an inference drawn without proper application of the law and without detailed attention to the events he described and his final explanation for firing - which was that he didn't consciously fire. The SCA made a different inference, as it is empowered to do, based on its assessment and testing of his version, and came to its conclusion (by examining if subjectively there was justification to shoot) that his account was dishonest and his version of believing he acted lawfully, if indeed he had any belief or thought while firing, not credible.

    The PT also says a challenge to a decision of the SCA on the basis that it is wrong on the facts is not a constitutional matter.
    Last edited by Tortoise; 02-19-2016 at 07:52 PM.


  11. #56
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    The current caseload situation at the ConCourt is that about 50 cases are ahead of Pistorius in the ‘awaiting directions’ queue. These are mainly applications for leave to appeal

    I would imagine this was the ‘anticipated delay’ before his case is concluded which was mentioned in his latest bail hearing.

    From the length of time this has gone on I can well imagine other events in SA, such as matters with the President, have long overtaken interest in the Pistorius situation, in which case I can’t imagine the ConCourt giving him any ‘priority’

    In my opinion the return to court in April will simply result in extended bail with a hearing at the ConCourt on granting leave to appeal sometime in June (based on current average timescales).

    Following that the average is another 3 months before judgement is delivered. So if that judgement refuses leave to appeal the earliest Pistorius will return to prison will be around October this year.

    I could be wrong but the ConCourt prioritising his case in any way could lead to more accusations.

  12. #57
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    Quote Originally Posted by Belgarion View Post
    The current caseload situation at the ConCourt is that about 50 cases are ahead of Pistorius in the ‘awaiting directions’ queue. These are mainly applications for leave to appeal

    I would imagine this was the ‘anticipated delay’ before his case is concluded which was mentioned in his latest bail hearing.

    From the length of time this has gone on I can well imagine other events in SA, such as matters with the President, have long overtaken interest in the Pistorius situation, in which case I can’t imagine the ConCourt giving him any ‘priority’

    In my opinion the return to court in April will simply result in extended bail with a hearing at the ConCourt on granting leave to appeal sometime in June (based on current average timescales).

    Following that the average is another 3 months before judgement is delivered. So if that judgement refuses leave to appeal the earliest Pistorius will return to prison will be around October this year.

    I could be wrong but the ConCourt prioritising his case in any way could lead to more accusations.
    Gosh, I thought he was number 15 in the queue of cases awaiting directions. Am I looking in the wrong place?

  13. #58
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    Quote Originally Posted by Tortoise View Post
    I'll try to give it a go.

    The prosecution, as you say, may only appeal on points of law. That does not mean however that the SCA can only say - yes an error of law was made, well done for spotting it, bye bye.

    The SCA has the powers, deriving from the Criminal Procedure Act, to determine that there has been a misdirection of law and then to order a retrial or, amongst other remedies to - "give such judgement as ought to have been given at the trial."

    The SCA judgement states at para 46 -

    "the option which most readily presents itself as being in the interests of justice is to consider whether on the facts found proved, the trial court erred in drawing the inference it did as to dolus eventualis. This is so as in an appeal of this nature this court is in as good a position as the trial court in drawing inferences of fact from proven facts."


    Thus the SCA is empowered to make new inferences of fact, and as stated in the next para (47), "to consider all of the evidence relevant to the issue, before applying the correct legal test."

    The DT says in its appeal that the SCA impermissibly rejected factual findings of the trial court, and makes unsupported claims that PPD was a finding.

    In reply, the PT says that the DT has failed to show that the SCA "erroneously amended or substituted any of the primary factual findings of the trial court."

    In my view it was not a proven factual finding of the trial court that Pistorius fired the shots with lawful intent because he was in fear for his life, it was merely an untested repetition of his version, an inference drawn without proper application of the law and without detailed attention to the events he described and his final explanation for firing - which was that he didn't consciously fire. The SCA made a different inference, as it is empowered to do, based on its assessment and testing of his version, and came to its conclusion (by examining if subjectively there was justification to shoot) that his account was dishonest and his version of believing he acted lawfully, if indeed he had any belief or thought while firing, not credible.

    The PT also says a challenge to a decision of the SCA on the basis that it is wrong on the facts is not a constitutional matter.

    Very many thanks for going to so much trouble. I understand what you are saying. I have been struggling with the reported contents of the DT's appeal papers where almost every newspaper/commentator seems to paraphrase the content differently. I would really like to read the original documents. Do you know if there is a link to the actual papers?

    What really confused me was that the DT, according to the press, were saying that it was impermissible for the SCA to intervene in the way they did.

    "Lawyer Andrew Fawcett said in the application that the SCA went beyond its jurisdiction by rejecting the High Court's factual finding that Pistorius genuinely‚ though erroneously‚ believed that his and Steenkamp's lives were in danger. He said the SCA does not have the power to reject factual findings of the trial court".

    http://www.timeslive.co.za/local/201...toriuss-lawyer

    The SCA article I read and linked to in my previous post clearly said that the SCA does have the right to do this. Fawcett does seem to make a bit of a fool of himself. Is he is throwing as much mud at the wall in the hope some of it will stick?

    There was another article in news24 that also confused me as I did not know the answer and had not seen it referred to anywhere else. It is this:-

    "The legal requirements for putative private defence were not a question of law referred to the SCA under section 319 of the CPA (Criminal Procedure Act). Therefore, with respect, the SCA had no statutory authority to interfere with either the trial court's legal or factual finding of putative private defence."

    http://www.news24.com/SouthAfrica/News/sca-discriminated-against-oscar-court-papers-20160112


    Even if this were correct, as far as I am aware Judge Masipa did not find putative private defence.

    From your explanation it seems that the Con Court will likely throw the Appeal out and it appears that the DT are attempting to stall the proceedings in the hope of keeping OP out of jail.

    Again, thank you for your help.


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  15. #60
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    Quote Originally Posted by Tortoise View Post
    Gosh, I thought he was number 15 in the queue of cases awaiting directions. Am I looking in the wrong place?
    No, you are looking in the right place, but I think you've made the same mistake as me ... we looked at 2016, but there are also matters outstanding from 2014 and 2015. Belgarion's comment alerted me to the fact that I'd overlooked something. There's still 1 outstanding from 2014 and the rest from 2015 plus the 14 for 2016. However this does not mean that these will all be heard before OP. Far from it. For example, the first case listed for 2015 is No. 40 in the list and the next after that is 89. There are a couple of cases that each have 18 respondents so these will take a lot of time while the parties comply with the directions, and in the meantime others will go forward in the queue if they're ready to proceed.

    If leave is granted, we'll probably be sitting on our hands waiting for a good 6 months I think, or longer.

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