Oscar Pistorius: The Sentence

Status
Not open for further replies.
rza said:
My friend you are confusing issues.
1. A judge, assessors, NPA advocates, court staff, court orderlies, police staff which helped with the case (i.e Mangena) are paid a salary with or without OP's case
2. The most you pay for is the transcripts, extra security, and expert witnesses. That doens't come to even a R1m in my opinion. So are we crying about a million?
Click to expand...
So you are cool with the resources of the public being allocated to a hopeless suit scuppered by no investigation.

Awaiting trial prisoners would be disinclined to agree
 
Paul Hjul said:
So you are cool with the resources of the public being allocated to a hopeless suit scuppered by no investigation.

Awaiting trial prisoners would be disinclined to agree
Click to expand...

I don't think the application and the appeal itself are hopeless, in fact I think it would have been a dereliction of duty for the NPA not to have appealed. This doesn't mean they will succeed though, but the NPA was bound to appeal for the sake of sanity and clarity. As I showed, there is extraordinary cost involved since most people involved are getting paid whether or not there is an appeal. So the taxpayer doesn't suffer prejudice.
 
rza said:
If this case was in the Magistrate's court then fair enough they should have let it be, but it's in the High Court and many other courts will follow Masipa's errors as a precedence. She may have got the verdicts right, but there is no way she got the arguments right, and that can't be left without being challenged otherwise confusions will reign (as it already does) as to Dolus Eventualis and on whether intention to possess firearms is necessary when charging people with possession of illegal firearms.
Click to expand...
I fail to see how the level of court affects the rights of citizens. A lower court has a higher probability of incorrect judgements and as such more reason to be open to appeal from the state - are people charged in lower courts not entitled to the same level of justice? The Criminal Procedure act makes specific recognition of this fact in that section 310 only applies to lower courts.

Masipa set no precedent. As a law student I would have expected you to have seen that - she created no new law or interpretation, only built on previous decisions. I thought it was only the uninformed who were complaining that now anybody could shoot their wife / girlfriend and get away with it. No major change took place with Masipa's judgement.

Decisions of dolus eventualis is always fraught with uncertainty and individual interpretation as it overlaps heavily with negligence. (As you should know as law student, the two are not mutually exclusive) Do yourself a favour and read the existing case law if you don't believe me. Try the Humpries appeal as a start! Masipa has in no way confused it more than it was, because as you state its only her argument which is difficult to follow.

In statutory law, intention is always required, unless the act clearly states that negligence is sufficient. First year criminal law! If you are referring to specific "intention to possess", that ship has sailed. This is precedent referred to by the learned judge, and set previously.

rza said:
Yes the cost is high, but we have a budget for this so we should proceed. I'm not sure what your objection to appealing really is because the higher courts will give us more clarification. Unless you insist that clarification is not needed which is weird when it's already clear that many people are confused by what Masipa did hence the need for clarification. As a law student, I need clarification because one way or the other I am studying dolus eventualis and will at some have to refer to case law. I would hate to refer to Masipa's arguments for or against dolus eventualis verdicts.
Click to expand...

Perhaps a garner at section 35(3)m of the constitution might give you an idea of what my reservations are. The state has historically not had a right to appeal a decision. This has evolved over time to allow review of specific mistakes (such as sentencing the wrong accused which has actually happened), and for purpose of reviewing pertinent questions of law. In this case there are no pertinent questions of law which require the SCA intervention, and the appeal is currently disallowed by act and precedent (interpretation of Section 322(4) and S v Seekoei). The state has from the first in the present trial acted in a vindictive manner, similar to when there is political bungling involved, perhaps at first to convince the public it was not giving preferential treatment, but later with major lashings of grandstanding. The ruling political party also did not take long to jump in bed with the prosecution of this fracas, having one of its daughter organizations prominently placed in the TV shot. Now the public façade is to continue even though it requires the NPA to acts differently from the norm, requiring law to shift and human rights to be eroded.

There is a maxim that "Fear drives people to consciously give up rights in exchange for security". (or a semblance of security) Historically once a right is willingly given up, it is never regained. If you are a successful law student you have probably mastered logical thinking, in the absence of emotion - why don't you follow this idea to its logical conclusion.

Dolus Eventualis is a simple principle, aptly mentioned in Masipa's judgement. I would hate to think that a single "wrong" judgement (yes there are of these, and no this is not one - at most a flawed argument) would throw a law student. It is exactly the wrong judgements that teach us the most. As to when intention by foresight of possibility is sufficient, even our appeal courts struggle with this. This should not be sufficient reason for the prosecution to get a second bite at the cherry.
 
It's laughable that some think this Is a waste of money.
Nel is doing the right thing because masipa imo was wrong. And she gave op a slap on the wrist for taking an innocent persons life.
But you know what let's wait and see what the SCA say because nobody and I mean nobody here is an expert or even close.
So its always ok for the defense nearly every bloody time to appeal but the state can't do it once.???
 
rza said:
My friend you are confusing issues.
1. A judge, assessors, NPA advocates, court staff, court orderlies, police staff which helped with the case (i.e Mangena) are paid a salary with or without OP's case
2. The most you pay for is the transcripts, extra security, and expert witnesses. That doens't come to even a R1m in my opinion. So are we crying about a million?
Click to expand...

Perhaps it is not I who is confused. Just because a cost is fixed, does not mean it should not be apportioned to a product. If you had a factory producing jelly tots, but sold them only accounting for the variable costs, you would go out of business. Just because you paid the manager, night security etc a salary and had to pay for the factory in any event does not mean you can exclude them from your input cost. The same applies here.

If the judge was not doing this case, she could be used gainfully elsewhere with a case. [I believe she has passed pension age so she might actually be paid specifically for this case, which includes her preparation time at home] The same goes for every other government employee associated with the case. [Not even taking cognisance of all the additional persons who were involved in the case solely because it was newsworthy - where have you ever seen a national commissioner give evidence in a culp case before]

Before guessing at the cost of this case, you might want to look at the cost of previous big cases as revealed in answer to parliamentary questions. If fixing the presidents house can cost 600 million, then you might be surprised to learn the cost of this debacle.
 
marine1 said:
So its always ok for the defense nearly every bloody time to appeal but the state can't do it once.???
Click to expand...

Pert answer - yes, but only if you value your constitutional rights.
Actually, the state has the right to appeal every "sentence" [section 316B] and to appeal every decision on a point of law in a lower court [section 310] and to have a question of law put to a higher court [section 319]. Unfortunately the NPA is using the public sentiment to try push the boundary of section 319 further - while I agree they have a right to question a point of law regarding the ammo, it will require a twist to explain why a factual finding becomes a point of law for the culp. It will be a further step into the unknown to have a person who was found guilty brought back for a new trial when section 322(4) does not allow it.
 
marine1 said:
But you know what let's wait and see what the SCA say because nobody and I mean nobody here is an expert or even close.
Click to expand...

Let's be honest, if the appeal doesn't go the way you want you're just going to carry on whining about how the SCA got it wrong too.

As for no-one here being an "expert", that is irrelevant, the fact is we have people here who are vastly more knowledgeable then you or I on this matter.
 
KalMaverick said:
Let's be honest, if the appeal doesn't go the way you want you're just going to carry on whining about how the SCA got it wrong too.

As for no-one here being an "expert", that is irrelevant, the fact is we have people here who are vastly more knowledgeable then you or I on this matter.
Click to expand...

I swear to you I wont. I have full faith in the outcome, and a real explanation either way. Being an expert and claiming to be one are 2 different things
 
PoisonedPawn said:
Pert answer - yes, but only if you value your constitutional rights.
Click to expand...
actually no, and here is the real problem with hypocritical canisters
a person can value their own constitutional rights while discarding the constitution for other people
it is hypocrisy and potentially self defeating (first they came for the ...) in the long term but for a person who has an "other" to blame the course is perfectly cogent cognitively - so a racist in SA can always want to see the constitutional rights of others eroded because they will blame a particular race group for the consequent encroachment on their rights.
 
marine1 said:
I swear to you I wont. I have full faith in the outcome, and a real explanation either way. Being an expert and claiming to be one are 2 different things
Click to expand...

And if you do?
And what if - which is the most likely outcome - the two judges considering the petition for leave to appeal decline to furnish reasons as is the ordinary practice?
 
Paul Hjul said:
And if you do?
And what if - which is the most likely outcome - the two judges considering the petition for leave to appeal decline to furnish reasons as is the ordinary practice?
Click to expand...

Well I have said in writing here what my opinion will be. Surely they have to furnish reasons? Paul I cant believe you think this should not be appealed by the state. Put your personal feelings aside on the Judge
 
Please read the Mphahlele judgment: http://www.saflii.org/za/cases/ZACC/1999/1.html

By letter, the applicant approached the Registrar of the Supreme Court of Appeal for reasons for the refusal of his petition. He was informed by the Registrar that the long-standing practice of the Court is that reasons are not furnished in such matters. The applicant then addressed a letter to the Chief Justice in which he submitted that “the long-standing practice of the Court” refers to “apartheid practice which was oppressive and destined to intimidate the poor masses”.

The Legal Administrative Officer in the Chambers of the Chief Justice replied to the applicant, saying, inter alia:
“Usually implied in the order refusing an application for leave to appeal to the Supreme Court of Appeal, is the conclusion that the order of the court a quo is correct and the appeal would not have any reasonable prospects of success. It is for this reason that the practice has been not to give any formal reasons for an order refusing leave to appeal. It also applies in the instant case.”
Click to expand...

Moreover as anybody who has actually read the thread rather than simply sprouted their own nonsense will have picked up on I very much do hope the SCA will regard the circumstances (mostly the clamour) as sufficient to depart from the practice of not furnishing reasons when dismissing leave to appeal but this is second prize to the NPA giving reasons why an appeal would be futile.
 
Last edited by a moderator:
PoisonedPawn said:
Decisions of dolus eventualis is always fraught with uncertainty and individual interpretation as it overlaps heavily with negligence. (As you should know as law student, the two are not mutually exclusive) Do yourself a favour and read the existing case law if you don't believe me. Try the Humpries appeal as a start! Masipa has in no way confused it more than it was, because as you state its only her argument which is difficult to follow.
Click to expand...

I don't understand your logic. You claim it's a waste of time and resources to appeal yet you agree with me, the state, and many experts that she got her arguments wrong on dolus eventualis. How then could you accept the verdict of not guilty on dolus eventualis when the arguments are not in line with the verdict? I might be a 1st year law student, but I know that a verdict has to follow naturally from the premise and the arguments that follow. In this case we can't claim that the verdict is correct since it's not backed up by the arguments and doesn't follow naturally. It would be a dereliction of duty for the state to accept a verdict that doesn't have any basis argumentatively.

You are contradicting yourself if you say there's no need to appeal yet the arguments are not in line with the verdict.

PoisonedPawn said:
In statutory law, intention is always required, unless the act clearly states that negligence is sufficient. First year criminal law! If you are referring to specific "intention to possess", that ship has sailed. This is precedent referred to by the learned judge, and set previously.
Click to expand...

You might have a previous case which set a precedence but how many people knew about it? All the analysts on ch199 didn't even know about it. (It's like having unreported cases which nobody cares about). The fact of the matter is that OP case has been watched by millions of people over the world and its decision will be remembered and quoted for centuries to come, so it is setting a precedence in that regard.

PoisonedPawn said:
Perhaps a garner at section 35(3)m of the constitution might give you an idea of what my reservations are. The state has historically not had a right to appeal a decision. This has evolved over time to allow review of specific mistakes (such as sentencing the wrong accused which has actually happened), and for purpose of reviewing pertinent questions of law. In this case there are no pertinent questions of law which require the SCA intervention, and the appeal is currently disallowed by act and precedent (interpretation of Section 322(4) and S v Seekoei). The state has from the first in the present trial acted in a vindictive manner, similar to when there is political bungling involved, perhaps at first to convince the public it was not giving preferential treatment, but later with major lashings of grandstanding. The ruling political party also did not take long to jump in bed with the prosecution of this fracas, having one of its daughter organizations prominently placed in the TV shot. Now the public façade is to continue even though it requires the NPA to acts differently from the norm, requiring law to shift and human rights to be eroded.

There is a maxim that "Fear drives people to consciously give up rights in exchange for security". (or a semblance of security) Historically once a right is willingly given up, it is never regained. If you are a successful law student you have probably mastered logical thinking, in the absence of emotion - why don't you follow this idea to its logical conclusion.

Dolus Eventualis is a simple principle, aptly mentioned in Masipa's judgement. I would hate to think that a single "wrong" judgement (yes there are of these, and no this is not one - at most a flawed argument) would throw a law student. It is exactly the wrong judgements that teach us the most. As to when intention by foresight of possibility is sufficient, even our appeal courts struggle with this. This should not be sufficient reason for the prosecution to get a second bite at the cherry.
Click to expand...

Yes the state was not allowed to review the decisions previously, but they can now and should do when the judicial officers have gotten it wrong. Why should the state be subjected to wrong judgments or mistakes from judicial officers? Masipa got the arguments wrong, and you yourself agree, but you are trying to convince us to live with mistakes of judges and use those mistakes going forward as though they were right.
 
PoisonedPawn said:
Perhaps it is not I who is confused. Just because a cost is fixed, does not mean it should not be apportioned to a product. If you had a factory producing jelly tots, but sold them only accounting for the variable costs, you would go out of business. Just because you paid the manager, night security etc a salary and had to pay for the factory in any event does not mean you can exclude them from your input cost. The same applies here.

If the judge was not doing this case, she could be used gainfully elsewhere with a case. [I believe she has passed pension age so she might actually be paid specifically for this case, which includes her preparation time at home] The same goes for every other government employee associated with the case. [Not even taking cognisance of all the additional persons who were involved in the case solely because it was newsworthy - where have you ever seen a national commissioner give evidence in a culp case before]

Before guessing at the cost of this case, you might want to look at the cost of previous big cases as revealed in answer to parliamentary questions. If fixing the presidents house can cost 600 million, then you might be surprised to learn the cost of this debacle.
Click to expand...

In Cost Accounting, you can apportion costs to any product you want, but in the end we report in Financial Accounting terms and the cost remains the same. You would have paid Masipa, court staff, NPA staff, and police regardless of whether it's OP on the dock or Khumalo from an informal settlement. So stop going on and on as if we are paying more money than we would have otherwise paid. Except for extra security and huge transcripts, there is other costs being spent.
 
PoisonedPawn said:
Pert answer - yes, but only if you value your constitutional rights.
Actually, the state has the right to appeal every "sentence" [section 316B] and to appeal every decision on a point of law in a lower court [section 310] and to have a question of law put to a higher court [section 319]. Unfortunately the NPA is using the public sentiment to try push the boundary of section 319 further - while I agree they have a right to question a point of law regarding the ammo, it will require a twist to explain why a factual finding becomes a point of law for the culp. It will be a further step into the unknown to have a person who was found guilty brought back for a new trial when section 322(4) does not allow it.
Click to expand...

Let's let the SCA to be the judge of this, but as I said the NPA has a legal duty to appeal, whether or not they will succeed is another matter altogether.
 
rza said:
Let's let the SCA to be the judge of this, but as I said the NPA has a legal duty to appeal, whether or not they will succeed is another matter altogether.
Click to expand...

Rubbish. Where is this 'legal duty' written?

I can understand moral duty. Possibly. But this whole thing is Nel taking things personally and that the cops were shown to be inept.
 
Status
Not open for further replies.
Back
Top
Sign up to the MyBroadband newsletter
X