Oscar Pistorius: The Sentence

[PoisonedPawn]

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.

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.

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.

We have convoluted several issues, as unlike a "real" lawyer I have never learned to keep my answers short. But lets stop at a few faux pas anyway:
- My discussion and you counter was not the same. Just because I understand that it is hard to follow the judges, sometimes winding, argument does not mean it is wrong, or even that I believe it to be wrong. Without meaning to deride, law requires accurate reading and understanding! Suggesting I contradict myself is not achieved by jumping to conclusions.
- Re the "verdict of not guilty on dolus eventualis" One is found guilty of a misconduct / crime / a statute etc. and one is found to have had or not had dolus. One is never found guilty of dolus (in any form)[or not guilty]
- If you get your legal opinion from Channel 199 or the You magazine, you deserve to be confused. Your mind was created to think and reason, not to be told what you should think.
- Precedents don't work like soapies or social media - its not a popularity race. S v Qwanda, 2013 (1) SACR 137 SCA and S v Majikazana, 2012 (2) SACR 107 (SCA) are supreme court of appeal judgements that bind. Obviously, as you can see from the descriptions, both cases are reported. And no its not my case as you suggest, it is cases argued and accepted during trial. You might be interested to know that the judge made her finding on the evidence and arguments led in court, and not on the lack of knowledge by the TV experts. May I suggest actually reading the judgement, and not taking your legal opinion from "experts" on channel 199 who did not even know that Section 310 did not apply in this case. As for popularity and world viewership setting precedent, why don't you mention the precedent created by the OJ Simpsons trial, which prior to this trial was the most publicised trial. Oh I forgot, there were none. To quote Larry Gates:
"To call the O.J. Simpson trial the "Trial of the Century" employs considerable hyperbole. It was, in fact, a sensational murder, and the defendant was a famous athlete and television personality. His representation, the so called "Dream Team" of the likes of Alan Ginzberg; F. Lee Bailey, and Johnny Cothran were the best anyone could find. The sensational nature of the trial comes perhaps from three factors: First, it was televised continuously. Secondly, a dirty cop was exposed as having planted evidence. This fact alone gave the entire trial a soap opera aura. Finally, the verdict itself; which many, myself included, consider as faulty, lent itself to the publicity which the trial received. It set no legal precedent, and had no more legal significance than the Lizzie Borden trial of the 19th century."

As for your further argument, let us agree to disagree. Any way I point out the flaws in logic or the jumps made in conclusions sound condescending, and while it may seem so, this is not my intention.

 

[PoisonedPawn]

http://www.news24.com/SouthAfrica/Oscar_Pistorius/Oscar-appeal-not-personal-NPA-20141030
"Oscar appeal not personal - NPA"

Wonder why the NPA feel the need to state this?

 

[Paul Hjul]

Seeing as though all of the posters in this and related threads who cite authorities and engage in meaningful discussion (as opposed to hysterical, bigoted and moronic posturing) are largely satisfied as to the futility of the appellate grandstanding that is occurring I am unlikely to further post in this thread and instead simply set out in a final post the waters into which we are now treading such that when the inevitable happens and certain members take to insulting the Supreme Court of Appeal (despite saying that they wouldn't) the record of posts is sufficiently clear.

While an accused has a right to an appeal if convicted, the state does not by right have an appeal opportunity and instead appealing a verdict of a superior court in a criminal matter is quite an exceptional occurance requiring leave which is either granted by the court which heard the matter or by the Supreme Court of Appeal on petition. It is possible that the presiding judge will grant leave to appeal, however the general practice has been for leave in such matters to be granted on limited grounds and consequently a petition for the other grounds is also issued. When the verdict was handed down several people indicated that the State may be able to appeal on the basis of an error of law, this statement was joined to a statement that the judge had made an error of law and formed part of a bandwagon a chatter that has since evaporated largely. Presently the only academic I am aware of who is stating that the judge made an error of law is Prof Grant whilst many others have indicated that it could be argued. While not a legal academic by my standards (although on the generally applied standards) I have advanced the view that it could be argued but only because of the broadness of the notion in contemporary South African jurisprudence but that the argument would ultimately fail. Further that while the public is interested in an appeal that is not the same thing as in the public interest. An appeal being heard could at best for the state lead to a conviction which would then be challenged on a host of constitutional grounds relating to fair trial rights.

Right now it is most likely that two judges of appeal will have the determination as to whether an appeal is to be heard. It is my hope that same judges will hear oral argument and will hand down reasons when dismissing leave (the second prize as I've always put it), however it is more probable that the leave petition will without reasons be dismissed on the standard ground of a lack of prospects of success. Assuming that there is a appellate court it could be three judges of the North Gauteng High Court or three or five judges of the Supreme Court of Appeal. I battle to see three judges of the provincial division being better placed to adjudicate on the legal questions at hand in a different way than the reasoning adopted by the trial court and in light of the recent matter in that court by two judges on the Jub Jub matter I doubt the state would appreciate such an appeal. If the Pretoria bench uphold the trial courts conviction and sentence then Marine1 and other fascists will cry foul because it wasn't the Supreme Court of Appeal.

Ultimately it is not in the best interests of the proper administration of justice (and disclaimer: scholarship on this canon is the basis of a considerable amount of my quasi-academic career so I do like to see it applied to everything) for an appeal to be proceeded with and all that this nonsense is doing is dragging the administration of justice into disrepute. The judgment of the trial court is well reasoned, on fours with prevailing law and is constitutionally sound in the interests of individual liberty. However lets assume that second prize is attained and the two judges considering the petition deliver reasons and hit this matter full out, will Marine1 and other fascists resort to anything other than showing contempt for the judges. Lets face it the race, language and gender of the judges - whatever it may be - will become hooks on which bigots will pin their contempt and nothing will be done on this forum. However I very much expect that the word fascist, bigot and moron will be removed from my post and that I will be insulted and threatened and possibly even warned or banned despite having full justification - both in terms of prevailing legal standards and the stated rules of this forum - while the bigots of this forum have no cause for their bigotry outside of their own failings as human beings.

 

[Sideshow Bob]

http://www.news24.com/SouthAfrica/Oscar_Pistorius/Oscar-appeal-not-personal-NPA-20141030
"Oscar appeal not personal - NPA"

Wonder why the NPA feel the need to state this?

Sub-editor generally responsible for catchy headline probably finds "oscar appeal not personal" a more worthy than "oscar appeal based on law". What was said seems to be "The appeal on conviction is based on the question of law. The merits and the demerits of the NPA's argument in this regard will become evident when we file papers for leave to appeal."

 

[rza]

http://www.news24.com/SouthAfrica/Oscar_Pistorius/Oscar-appeal-not-personal-NPA-20141030
"Oscar appeal not personal - NPA"

Wonder why the NPA feel the need to state this?

He was answering a question put to him, it's not like he issued a statement to that regard.

 

[AthenianOwl]

http://www.news24.com/SouthAfrica/Oscar_Pistorius/Oscar-appeal-not-personal-NPA-20141030
"Oscar appeal not personal - NPA"

Wonder why the NPA feel the need to state this?

 

[marine1]

I see our resident hero is back with the insults again, RPB'd

 

[rza]

Seeing as though all of the posters in this and related threads who cite authorities and engage in meaningful discussion (as opposed to hysterical, bigoted and moronic posturing) are largely satisfied as to the futility of the appellate grandstanding that is occurring I am unlikely to further post in this thread and instead simply set out in a final post the waters into which we are now treading such that when the inevitable happens and certain members take to insulting the Supreme Court of Appeal (despite saying that they wouldn't) the record of posts is sufficiently clear.

While an accused has a right to an appeal if convicted, the state does not by right have an appeal opportunity and instead appealing a verdict of a superior court in a criminal matter is quite an exceptional occurance requiring leave which is either granted by the court which heard the matter or by the Supreme Court of Appeal on petition. It is possible that the presiding judge will grant leave to appeal, however the general practice has been for leave in such matters to be granted on limited grounds and consequently a petition for the other grounds is also issued. When the verdict was handed down several people indicated that the State may be able to appeal on the basis of an error of law, this statement was joined to a statement that the judge had made an error of law and formed part of a bandwagon a chatter that has since evaporated largely. Presently the only academic I am aware of who is stating that the judge made an error of law is Prof Grant whilst many others have indicated that it could be argued. While not a legal academic by my standards (although on the generally applied standards) I have advanced the view that it could be argued but only because of the broadness of the notion in contemporary South African jurisprudence but that the argument would ultimately fail. Further that while the public is interested in an appeal that is not the same thing as in the public interest. An appeal being heard could at best for the state lead to a conviction which would then be challenged on a host of constitutional grounds relating to fair trial rights.

Right now it is most likely that two judges of appeal will have the determination as to whether an appeal is to be heard. It is my hope that same judges will hear oral argument and will hand down reasons when dismissing leave (the second prize as I've always put it), however it is more probable that the leave petition will without reasons be dismissed on the standard ground of a lack of prospects of success. Assuming that there is a appellate court it could be three judges of the North Gauteng High Court or three or five judges of the Supreme Court of Appeal. I battle to see three judges of the provincial division being better placed to adjudicate on the legal questions at hand in a different way than the reasoning adopted by the trial court and in light of the recent matter in that court by two judges on the Jub Jub matter I doubt the state would appreciate such an appeal. If the Pretoria bench uphold the trial courts conviction and sentence then Marine1 and other fascists will cry foul because it wasn't the Supreme Court of Appeal.

Ultimately it is not in the best interests of the proper administration of justice (and disclaimer: scholarship on this canon is the basis of a considerable amount of my quasi-academic career so I do like to see it applied to everything) for an appeal to be proceeded with and all that this nonsense is doing is dragging the administration of justice into disrepute. The judgment of the trial court is well reasoned, on fours with prevailing law and is constitutionally sound in the interests of individual liberty. However lets assume that second prize is attained and the two judges considering the petition deliver reasons and hit this matter full out, will Marine1 and other fascists resort to anything other than showing contempt for the judges. Lets face it the race, language and gender of the judges - whatever it may be - will become hooks on which bigots will pin their contempt and nothing will be done on this forum. However I very much expect that the word fascist, bigot and moron will be removed from my post and that I will be insulted and threatened and possibly even warned or banned despite having full justification - both in terms of prevailing legal standards and the stated rules of this forum - while the bigots of this forum have no cause for their bigotry outside of their own failings as human beings.

Don't quit the thread, some of us appreciate yor views even though we disagree with them vehemently. Let's wait for the application for leave to appeal and we'll analyse the reasons provided by the State and respond accordingly. For now we are all speculating as to what those reasons might be, or as to what the verdict of the High Court or SCA will be to the application.

I'm still shocked though that you say:

The judgment of the trial court is well reasoned, on fours with prevailing law and is constitutionally sound in the interests of individual liberty.

I have read countless judgments, especially labour judgments, and I shake my head when you say Masipa was well reasoned. I have always maintained that verdict could be right, but I disagree vehemently with people who say this judgment was "well reasoned".

Be thick skinned and continue posting.

 

[Paul Hjul]

If you use the Labour Court as a model for reasoning it shouldn't be surprising that you are confused. Labour practice in SA is anachronistic and esoteric to put it politely.

It actually has little to do with being thick skinned and more to do with the fact that all that can be said has been said and further participating will merely allow the toxicty that is Marine1 further space to fester, and because he is a big whiney baby and the moderating team are not prepared to apply the principle that a complainant with dirty hands places themselves in jeopardy - if you cry to mommy because you've been insulted but you made the first insult you should be at risk of getting a hiding. Sadly I certainly am not the first member of this forum to disengage because space to have meaningful engagement is shoved out by despicable human beings.

Frankly if you want to see me in this thread start citing authority because otherwise it is a waste of my time and energy otherwise. Interestingly the statement of William Booth is moving increasingly towards the statement that the appellate court can't give the peanut gallery what it wants - a hefty sentence and finding that Pistorius intended to kill Steenkamp:
"because don't forget that this is not a question of the murder of Reeva its a question of the murder of the intruder because I don't believe there is sufficient evidence in light of the judges finding to say well you know that this is murder and Oscar had the intention to kill Reeva its merely a question of whether he had the intention to kill the intruder based on the evidence or whether he was negligent ... but the conduct relates to the intruder the person he perceived to be behind the toilet door"
(own transcription sans punctuation)

Now what Booth is not addressing is the legal question of whether the State can charge with "premeditated" murder (a charge in terms of the minimum sentencing abomination) and secure a conviction on a manifestly different offence. The moment the case becomes about the intruder the question must be asked why the State did not set out to prove as much and why use trumped up charges (the one carrying a minimum sentence). There is no competent verdict rule at common law or statute for murder to murder and so the State should be bound by its suit.

 

[rza]

If you use the Labour Court as a model for reasoning it shouldn't be surprising that you are confused. Labour practice in SA is anachronistic and esoteric to put it politely.

Now what Booth is not addressing is the legal question of whether the State can charge with "premeditated" murder (a charge in terms of the minimum sentencing abomination) and secure a conviction on a manifestly different offence. The moment the case becomes about the intruder the question must be asked why the State did not set out to prove as much and why use trumped up charges (the one carrying a minimum sentence). There is no competent verdict rule at common law or statute for murder to murder and so the State should be bound by its suit.

Lol at Labour Courts being anachronistic and esoteric.

I kinda understand where you are going with your point about error in objecto but I don't think it would have mattered in terms of the charges he was facing since all competent murder charges are dealt with anyway.

 

[PoisonedPawn]

He was answering a question put to him, it's not like he issued a statement to that regard.

Fair point - would have been rather suspicious if the NPA had made the statement as is suggested by the article. If it was in response to a question one should not read anything into it.

 

[PoisonedPawn]

Now what Booth is not addressing is the legal question of whether the State can charge with "premeditated" murder (a charge in terms of the minimum sentencing abomination) and secure a conviction on a manifestly different offence. The moment the case becomes about the intruder the question must be asked why the State did not set out to prove as much and why use trumped up charges (the one carrying a minimum sentence). There is no competent verdict rule at common law or statute for murder to murder and so the State should be bound by its suit.

In 1997 when the minimum sentences were introduced (at least in the Drug Trafficking Act of 1992) I thought it was the best thing since sliced bread. I have since matured a lot and cannot believe the naivety with which I viewed such legislation. A bane on true justice.

 

[Albereth]

I see our resident hero is back with the insults again, RPB'd

Suddenly you have a thin skin?

All I can say is that Paul isn't often wrong. And I do believe that he views the law as a purist and would rather not have it corrupted in pursuit of some temporary public hue and cry. The real danger we face in having the state able to appeal is that it undermines your very constitutional protections.

 

[Albereth]

If you use the Labour Court as a model for reasoning it shouldn't be surprising that you are confused. Labour practice in SA is anachronistic and esoteric to put it politely.

It actually has little to do with being thick skinned and more to do with the fact that all that can be said has been said and further participating will merely allow the toxicty that is Marine1 further space to fester, and because he is a big whiney baby and the moderating team are not prepared to apply the principle that a complainant with dirty hands places themselves in jeopardy - if you cry to mommy because you've been insulted but you made the first insult you should be at risk of getting a hiding. Sadly I certainly am not the first member of this forum to disengage because space to have meaningful engagement is shoved out by despicable human beings.

Frankly if you want to see me in this thread start citing authority because otherwise it is a waste of my time and energy otherwise. Interestingly the statement of William Booth is moving increasingly towards the statement that the appellate court can't give the peanut gallery what it wants - a hefty sentence and finding that Pistorius intended to kill Steenkamp:
"because don't forget that this is not a question of the murder of Reeva its a question of the murder of the intruder because I don't believe there is sufficient evidence in light of the judges finding to say well you know that this is murder and Oscar had the intention to kill Reeva its merely a question of whether he had the intention to kill the intruder based on the evidence or whether he was negligent ... but the conduct relates to the intruder the person he perceived to be behind the toilet door"
(own transcription sans punctuation)

Now what Booth is not addressing is the legal question of whether the State can charge with "premeditated" murder (a charge in terms of the minimum sentencing abomination) and secure a conviction on a manifestly different offence. The moment the case becomes about the intruder the question must be asked why the State did not set out to prove as much and why use trumped up charges (the one carrying a minimum sentence). There is no competent verdict rule at common law or statute for murder to murder and so the State should be bound by its suit.

The State/Nel tried its crap at the bail hearing. Even then the judge found that the state had no compelling argument against bail. In fact the trial became about Nel and his arrogance trying to bludgeon a rather poorly horse.

All the so called gun experts around these parts seem to think they have training on par with Seal Team 6 and they would never fire because the first thing that pops into your brain when you're under stress in the law. Or the 5 minutes of 'training' you got when going through the firearm competency nonsense. And yes, it is nonsense.

To get hypothetical. Two other scenarios. What if there had been an intruder behind the door? What if the toilet had been empty?

You'd like to think that the law would have follow its course. In the second case I doubt that the police would have even been informed. In the first, well a lot of us would be whooping that another scumbag was off the street. But would OP have been given 5 years for it?

 

[Noseworthy]

< . >

 

[marine1]

Suddenly you have a thin skin?

All I can say is that Paul isn't often wrong. And I do believe that he views the law as a purist and would rather not have it corrupted in pursuit of some temporary public hue and cry. The real danger we face in having the state able to appeal is that it undermines your very constitutional protections.

Did I say he was wrong ? If he wants to act like a spoilt brat and insult people who disagree or have an opinion I will continue to report his posts.
And its not just here he has an issue with me, keyboard tough guy. You got something to say, say it but abide by rules. Same rules for everyone

 

[Paul Hjul]

Actually I only insult people who insult others
it is exactly the same rule that I apply to sarcasm and where necessary physical force
the nature and manner of insult is generally measured and commensurate

If you find me insulting you chances are you are a prick and a bully or you insulted me an I am returning the favour - in the latter case though expect the insults to be few and far between.
If you really want to get my insult tap open though be a bully and a prick who responds to being treated how you treat others with threats and whining to an external force to get your own way

 

[Paul Hjul]

You'd like to think that the law would have follow its course. In the second case I doubt that the police would have even been informed. In the first, well a lot of us would be whooping that another scumbag was off the street. But would OP have been given 5 years for it?

bloody hell Albereth I was planning to depart from this thread - and would have but for meaningful contributions

This is mostly though the issue, the very people baying for blood will be the first to bitch at the state seeking to convict somebody of murder for killing an intruder
under our law intentionally shooting at an intruder could result in a murder conviction, and the State could in my view have secured a murder conviction on that approach if it was investigated and proved but imagine the hue and cry from the gallery on this forum about the dangerous precedent etc ...

How does a person reconcile complaining about the State seeking to get additional bites at the cherry in the Basson saga but gleefully relish as the State persists at every turn in seeking to take as many bites as possible at the cherry in the middle of the Pistorius cake while having the cake and eating it.

The manifestations and implications that the sort of reasoning that is being embellished are massive both from a principle purist point of view but also from a day to day criminal justice point of view. Unrepresented accused could find themselves incarcerated for 18 months on the basis of the State misapplying the minimum sentencing legislation
A 17 year old who kills somebody while defending himself in a bar fight will be nailed by a misguided prosecutor and incarcerated without bail for about 18 months - during which time he is likely to get assaulted, moreover there is a not insignificant chance of him dying (including possible suicide) before ever standing trial - only to be convicted of culpable homicide and sentenced to time served. So when some gun toting nut advocates eroding fair trial while still thinking that he personally can kill people humanity should weep.

 

[KalMaverick]

How does a person reconcile complaining about the State seeking to get additional bites at the cherry in the Basson saga but gleefully relish as the State persists at every turn in seeking to take as many bites as possible at the cherry in the middle of the Pistorius cake while having the cake and eating it.

Quite simple (and sad really). Hindsight is 20/20.

You look at the outcome, was there a criminal behind the door? Yes? Self-defense. No? Clearly premeditated murder.

All the circumstances, factors, intentions, etc, leading up to that are irrelevant. The law too.

I can just be grateful that I live in a country where the justice system does not work according to how some want it to work.

Did I say he was wrong ? If he wants to act like a spoilt brat and insult people who disagree or have an opinion I will continue to report his posts.
And its not just here he has an issue with me, keyboard tough guy. You got something to say, say it but abide by rules. Same rules for everyone

I've been reading a lot of your posts, do not pretend to be innocent here or that it's completely one sided, also, veiled insults are still insults, the moderators might be oblivious to them but not everyone else is.

 

[marine1]

I've been reading a lot of your posts, do not pretend to be innocent here or that it's completely one sided, also, veiled insults are still insults, the moderators might be oblivious to them but not everyone else is.

I give what I get but I have not insulted him calling him a bigot or fascist have I? He has a chip on his shoulder and he needs to get over it