Discussion Thread #61 ~ the appeal~

[Interested Bystander]

This photo amused me somewhat.

http://www.theguardian.com/world/li...hrown-out-live#block-55029890e4b0781f7aee0230

 

[AJ_DS]

Hooray. The order granted is to strike off the application. I predict that if the State is successful before the SCA, Roux will take it to the Constitutional Court.

So Roux identified a potential trap, which he has now dealt with.

- He has covered off any objection by the SCA that he did not follow procedure and is therefore unable to argue for dismissal of the Qs of Law.
- Masipa and the State have both conceded on the record OP's right to argue dismissal of the Qs of Law in the SCA.

Behind closed doors, I believe the defence team will be very happy with today.

I'm not sure Masipa's ruling today is cause for either cheer or jeer…

Roux simply followed procedure (at least his understanding of it) by putting forth to Masipa an application for leave

Masipa had 3 options :

1. Grant = Roux is correct.

2. Dismiss = Roux is incorrect.

3. Strike = Roux may be correct but Masipa believes she is not entitled to rule on the matter… hence she basically directs Roux to take up the matter with the SCA directly.

In either case, Masipa's ruling was inconsequential as it was just an exercise in procedures.

In either case, Roux is free to petition the SCA.

The "real" debate with real impact will come if the SCA grants Roux petition AND rules in favor of Roux.

 

[Sherbert]

I'm not sure Masipa's ruling today is cause for either cheer or jeer…

Roux simply followed procedure (at least his understanding of it) by putting forth to Masipa an application for leave

Masipa had 3 options :

1. Grant = Roux is correct.

2. Dismiss = Roux is incorrect.

3. Strike = Roux may be correct but Masipa believes she is not entitled to rule on the matter… hence she basically directs Roux to take up the matter with the SCA directly.

In either case, Masipa's ruling was inconsequential as it was just an exercise in procedures.

In either case, Roux is free to petition the SCA.

The "real" debate with real impact will come if the SCA grants Roux petition and AND the SCA rules in favor of Roux.

Yes. Here is an extract from The Guardian:

'Although unsuccessful, the application represented something of an insurance policy for the defence, allowing it to tell the supreme court it exhausted every avenue in seeking to challenge the appeal decision. Marius du Toit, an attorney, told eNews Channel Africa that it was all about Roux “dotting his i’s and crossing his t’s'.

http://www.theguardian.com/world/2015/mar/13/oscar-pistorius-challenge-against-state-appeal-thrown-out

The Defence would have left itself open to criticism, had it simply rolled up at the Supreme Court without making it clear beforehand that it was opposing the Appeal in principle as well as in substance.

 

[AJ_DS]

Yes. Here is an extract from The Guardian:

'Although unsuccessful, the application represented something of an insurance policy for the defence, allowing it to tell the supreme court it exhausted every avenue in seeking to challenge the appeal decision. Marius du Toit, an attorney, told eNews Channel Africa that it was all about Roux “dotting his i’s and crossing his t’s'.

http://www.theguardian.com/world/2015/mar/13/oscar-pistorius-challenge-against-state-appeal-thrown-out

The Defence would have left itself open to criticism, had it simply rolled up at the Supreme Court without making it clear beforehand that it was opposing the Appeal in principle as well as in substance.

I agree with the underlying argument in the Guardian's extract but I believe the language used was incorrect.

The application was neither successful nor unsuccessful because it was stricken… furthermore, all parties involved knew that all possible rulings would have no real-world impact.

It reminds me of when I was a child… If I wanted permission for something, I could :

- First ask my father who could say either : "Yes", "No" or "Ask your mother"

- First ask my mother who would say : "Did you ask your father?" and "What did he say?"

No matter the answer given by my father (Masipa), the final decision always rested with my mother (SCA)... I knew that... as did my father.

Roux asked father first to avoid having to tell mother "No" when she would say "Did you ask your father?"

Father said neither "Yes" or "No" to Roux, he said "Ask your mother"… so Roux has to convince mother

Had father said "Yes"… Roux would still have had to convince mother

Had father said "No"… Roux could still try to convince mother

Hence in all scenarios, what father says is basically irrelevant… it's just a procedural formality which invariably leads to having to convince mother !

 

[Sherbert]

I agree with the underlying argument in the Guardian's extract but I believe the language used was incorrect.

The application was neither successful nor unsuccessful because it was stricken… furthermore, all parties involved knew that all possible rulings would have no real-world impact.

It reminds me of when I was a child… If I wanted permission for something, I could :

- First ask my father who could say either : "Yes", "No" or "Ask your mother"

- First ask my mother who would say : "Did you ask your father?" and "What did he say?"

No matter the answer given by my father (Masipa), the final decision always rested with my mother (SCA)... I knew that... as did my father.

Roux asked father first to avoid having to tell mother "No" when she would say "Did you ask your father?"

Father said neither "Yes" or "No" to Roux, he said "Ask your mother"… so Roux has to convince mother

Had father said "Yes"… Roux would still have had to convince mother

Had father said "No"… Roux could still try to convince mother

Hence in all scenarios, what father says is basically irrelevant… it's just a procedural formality which invariably leads to having to convince mother !

Nice analogy

I still think, though, that the neatest outcome for the Defence would have been if Masipa had given Roux permission to challenge the State's right to appeal at the Supreme Court.

As things stand, the onus remains on Roux to persuade the Supreme Court judges to consider jurisdiction as a preliminary issue.

The problem for Roux is that, once the record is lodged and the Appeal Court judges have a good look at the mess that Masipa made, they may, (hopefully), be more inclined to find the means to uphold the State's right to appeal.

Having an application struck out is a measure of the Court's disapproval and, imo, given the Order that was made, Roux is jolly lucky to have escaped an order for costs against his firm personally.

Had it been the State's application that was struck out, I feel sure that an order for costs would have been made in OP's favour.

And, if Masipa felt that she didn't have jurisdiction, I'm surprised that the matter was listed for hearing in the first place. In the UK, Roux's application would probably have been sent back with a note that the Judge had directed that the application be lodged at the Supreme Court.

On balance, I think Nel must be pleased with the outcome. What isn't clear to me is whether Roux needs to re-issue the application at the Supreme Court, at this stage.

 

[Sherbert]

Another point that I find interesting is that the Defence no longer seems to make any reference to Seekoei. They seem to be basing their objection entirely on mistake of fact, not law.

 

[AJ_DS]

Nice analogy

I still think, though, that the neatest outcome for the Defence would have been if Masipa had given Roux permission to challenge the State's right to appeal at the Supreme Court.

As things stand, the onus remains on Roux to persuade the Supreme Court judges to consider jurisdiction as a preliminary issue.

The problem for Roux is that, once the record is lodged and the Appeal Court judges have a good look at the mess that Masipa made, they may, (hopefully), be more inclined to find the means to uphold the State's right to appeal.

Having an application struck out is a measure of the Court's disapproval and, imo, given the Order that was made, Roux is jolly lucky to have escaped an order for costs against his firm personally.

Had it been the State's application that was struck out, I feel sure that an order for costs would have been made in OP's favour.

And, if Masipa felt that she didn't have jurisdiction, I'm surprised that the matter was listed for hearing in the first place. In the UK, Roux's application would probably have been sent back with a note that the Judge had directed that the application be lodged at the Supreme Court.

On balance, I think Nel must be pleased with the outcome. What isn't clear to me is whether Roux needs to re-issue the application at the Supreme Court, at this stage.

I agree, the whole thing is a mess on so many levels.

As for Nel being pleased… perhaps for having bested Roux's arguments… but the real battle will be held at the SCA… so Nel has neither won or lost anything today.

Where Nel is a "winner" is that his petition to the SCA has already been granted… whereas Roux's petition has not (yet)

Nel may see his SCA hearing cancelled if SCA rules in favor of Roux's arguments on Roux's appeal : 1st battle that if won by Roux wins him the war… but if lost by Roux does not loose him the war.

Nel may loose his appeal if SCA rules in favor of Roux's arguments on Nel's appeal : 2nd battle that if won by Roux wins him the war

Therefore Roux has 2 very different type of opportunities (battles) to win the war… I suspect Nel isn't pleased about that.

 

[AJ_DS]

Another point that I find interesting is that the Defence no longer seems to make any reference to Seekoei. They seem to be basing their objection entirely on mistake of fact, not law.

BiB… I believe it is more convoluted than that…

A mistake in Law* which was to incorrectly establish as a possible mistake in Law** a mistake in Facts masquerading as a mistake in Law.

LOL… I'm no sure my sentence makes sense…

* = Masipa granting Nel's leave was, according to Roux, a mistake in Law because in reality it was based on a mistake in Facts (not Law) which is not open to an Appeal

** = Masipa's verdict was, according to Nel, a mistake in Law

 

[mrjitty]

So Roux identified a potential trap, which he has now dealt with.

- He has covered off any objection by the SCA that he did not follow procedure and is therefore unable to argue for dismissal of the Qs of Law.
- Masipa and the State have both conceded on the record OP's right to argue dismissal of the Qs of Law in the SCA.

Behind closed doors, I believe the defence team will be very happy with today.

Can you expand on your thinking here re procedure?

Where I come from, the striking out of Roux's application would tend to indicate that it was improperly brought and thus of no relevance in upcoming appeal.

 

[mrjitty]

Nice analogy

I still think, though, that the neatest outcome for the Defence would have been if Masipa had given Roux permission to challenge the State's right to appeal at the Supreme Court.

As things stand, the onus remains on Roux to persuade the Supreme Court judges to consider jurisdiction as a preliminary issue.

The problem for Roux is that, once the record is lodged and the Appeal Court judges have a good look at the mess that Masipa made, they may, (hopefully), be more inclined to find the means to uphold the State's right to appeal.

IMO that remains the most likely gambit - he hoped to dispose of this on procedural grounds.

He might still be successful with those arguments - but only in the context of a full appeal.

 

[mrjitty]

Yes. Here is an extract from The Guardian:

'Although unsuccessful, the application represented something of an insurance policy for the defence, allowing it to tell the supreme court it exhausted every avenue in seeking to challenge the appeal decision. Marius du Toit, an attorney, told eNews Channel Africa that it was all about Roux “dotting his i’s and crossing his t’s'.

http://www.theguardian.com/world/2015/mar/13/oscar-pistorius-challenge-against-state-appeal-thrown-out

The Defence would have left itself open to criticism, had it simply rolled up at the Supreme Court without making it clear beforehand that it was opposing the Appeal in principle as well as in substance.

This sounds more like media talking point than valid legal strategy.

Roux already made these arguments in front of Masipa in the original application. Maybe there is some quirk of SA procedure that everyone except him is missing - but I can't see what would be stopping him from making these arguments at appeal - indeed they are exactly the arguments you would expect to be made.

Indeed it is common as muck for defendents on appeal to try and dress up questions of fact as legal questions. And of course the prosecution can argue against it.

Puzzling!

 

[Sherbert]

BiB… I believe it is more convoluted than that…

A mistake in Law* which was to incorrectly establish as a possible mistake in Law** a mistake in Facts masquerading as a mistake in Law.

LOL… I'm no sure my sentence makes sense…

* = Masipa granting Nel's leave was, according to Roux, a mistake in Law because in reality it was based on a mistake in Facts (not Law) which is not open to an Appeal

** = Masipa's verdict was, according to Nel, a mistake in Law

Yes, AJ, I fully agree with your unpacking of the application; but what I meant is that, bearing in mind that the Defence's case is that Masipa was wrong in law to grant the State leave because:

(1) There was a competent verdict and
(2) The state is attempting to challenge findings of fact, not law

I haven't seem much, if any, reference to (1) - not in the build up to the hearing or, indeed, during the hearing itself.

http://citizen.co.za/334069/pistorius-to-stop-murder-charge-acquittal-appeal/

'NPA spokesman Velekhaya Mgobhozi confirmed that the application would be heard by Judge Thokozile Masipa in the South Gauteng High Court on 13 March.

Pistorius’ lawyer Brian Webber said the decision to apply for leave to appeal on Judge Thokozile Masipa’s ruling was because he believed she incorrectly allowed leave to appeal to the state.

Webber said Masipa erred in allowing the appeal with regards to the matters of facts and law in the trial. He said the state did not argue on points of law, but rather on facts, which does not entitle them to appeal the matter before the Supreme Court of Appeal (SCA).

This was argued by Pistorius’ defence team during the state’s application for leave to appeal heard by Masipa in December.'

And, when you think about it, as Masipa has also granted the State leave to appeal on her treatment of the circumstantial evidence as well as on her handling of the multiple Defences, an objection on the grounds that the State is seeking to challenge findings of fact may not be adequate to block the appeal.

It would be interesting to see the actual application lodged by the Defence, to see if Seekoei is mentioned there.

 

[Sherbert]

This sounds more like media talking point than valid legal strategy.

Roux already made these arguments in front of Masipa in the original application. Maybe there is some quirk of SA procedure that everyone except him is missing - but I can't see what would be stopping him from making these arguments at appeal - indeed they are exactly the arguments you would expect to be made.

Indeed it is common as muck for defendents on appeal to try and dress up questions of fact as legal questions. And of course the prosecution can argue against it.

Puzzling!

Yes, and Nel seemed well aware that Roux could raise these arguments at the Appeal anyway.

After all, it's unlikely that the Supreme Court judges would consider themselves at liberty to consider mistakes of fact just because Roux didn't obtain leave to appeal Masipa's decision to grant the State leave beforehand.

It may be the case that Roux was aware that, if Masipa had granted him leave, the Supreme Court would not read the record unless and until they'd considered that application.

Either that or he hasn't been on the receiving end of a criminal appeal by the State before.

 

[AJ_DS]

Yes, AJ, I fully agree with your unpacking of the application; but what I meant is that, bearing in mind that the Defence's case is that Masipa was wrong in law to grant the State leave because:

(1) There was a competent verdict and
(2) The state is attempting to challenge findings of fact, not law

I haven't seem much, if any, reference to (1) - not in the build up to the hearing or, indeed, during the hearing itself.

http://citizen.co.za/334069/pistorius-to-stop-murder-charge-acquittal-appeal/

'NPA spokesman Velekhaya Mgobhozi confirmed that the application would be heard by Judge Thokozile Masipa in the South Gauteng High Court on 13 March.

Pistorius’ lawyer Brian Webber said the decision to apply for leave to appeal on Judge Thokozile Masipa’s ruling was because he believed she incorrectly allowed leave to appeal to the state.

Webber said Masipa erred in allowing the appeal with regards to the matters of facts and law in the trial. He said the state did not argue on points of law, but rather on facts, which does not entitle them to appeal the matter before the Supreme Court of Appeal (SCA).

This was argued by Pistorius’ defence team during the state’s application for leave to appeal heard by Masipa in December.'

And, when you think about it, as Masipa has also granted the State leave to appeal on her treatment of the circumstantial evidence as well as on her handling of the multiple Defences, an objection on the grounds that the State is seeking to challenge findings of fact may not be adequate to block the appeal.

It would be interesting to see the actual application lodged by the Defence, to see if Seekoei is mentioned there.

I agree… I suppose we will get a few answers when Roux lodges his application to the SCA… I imagine it will be made public.

 

[AJ_DS]

This sounds more like media talking point than valid legal strategy.

Roux already made these arguments in front of Masipa in the original application. Maybe there is some quirk of SA procedure that everyone except him is missing - but I can't see what would be stopping him from making these arguments at appeal - indeed they are exactly the arguments you would expect to be made.

Indeed it is common as muck for defendents on appeal to try and dress up questions of fact as legal questions. And of course the prosecution can argue against it.

Puzzling!

My understanding only (for what it's worth)

There is no strategy on Roux's part… it's simply following procedures (no matter how nonsensical they may appear to us)

Yes Roux already presented his points during Nel's application… BUT at that time Roux was the respondent to Nel's application for leave… Now, Roux was the applicant making his own application (with basically the same arguments) for leave.

The KEY difference is : In Nel's application Masipa agreed with Nel's arguments (i.e. disagreed with Roux's arguments) with respect to granting Nel's application for leave… but that does not automatically mean that Masipa would not agree with Roux's arguments in his very own application for leave.

 

[Sherbert]

My understanding only (for what it's worth)

There is no strategy on Roux's part… it's simply following procedures (no matter how nonsensical they may appear to us)

Yes Roux already presented his points during Nel's application… BUT at that time Roux was the respondent to Nel's application for leave… Now, Roux was the applicant making his own application (with basically the same arguments) for leave.

The KEY difference is : In Nel's application Masipa agreed with Nel's arguments (i.e. disagreed with Roux's arguments) with respect to granting Nel's application for leave… but that does not automatically mean that Masipa would not agree with Roux's arguments in his very own application for leave.

I think this is how Roux saw his position, but, ultimately, Masipa took the view that the application was misconceived on the grounds that she didn't have jurisdiction to review her previous decision.

In any case, as Nel pointed out, the Defence didn't need permission to raise its objections to the State's appeal, as that permission is implicit in the appeals process.

Logically, I think Nel is correct on this - Roux's application was simply an error of judgement, leaving him with a great big dollop of egg on his face.

Nevertheless, nothing substantial has been lost by the Defence - there was no order for costs against OP and Roux is still free to make his objections at the Appeal Court.

 

[soozieqtips]

I just watched that video clip of OP playing football in prison, and he looks like he's put on a lot of weight. Didn't I read not long ago that he'd become very thin due to not eating much for fear of being poisoned??? He certainly looks like he's been enjoying his food in that clip!

 

[Deleted member 102539]

I just watched that video clip of OP playing football in prison, and he looks like he's put on a lot of weight. Didn't I read not long ago that he'd become very thin due to not eating much for fear of being poisoned??? He certainly looks like he's been enjoying his food in that clip!

My impression is: he looks a great deal slimmer. I looked at some fotos (not the video). Poor boy, he must also starve to make things worse.

 

[soozieqtips]

I don't know. He looks chubbier from behind to my eyes, and a bit paunchy.

Must be all the chocolate he's allowed now!!

 

[K.T]

I found it interesting how SA judges can relate quite differently to evidence and testimony. The Bob Hewitt & Pistorius cases are superficiality not at all similar, yet both had with a high reliance of weighing the merits and problems around witness testimony:

1. One judge finds an unconvincing, oddly acting (emotionless) defendant unreliable and effectively throws out his testimony. - Hewitt trial

2. Another judge finds an unconvincing, oddly acting (emotionally unstable) defendant reliable and believable, even though there are 'inconsistencies' in his different testimony on multiple charges, arguable doubt from text messages from victim, and challenges from ear-witness testimony. - Pistorius trial - IMO

I wonder if, following from Masipa's previous logic, she would have found Hewitt convincing and would have found no convictions in the 'tennis star's' trial?

Judge Bam threw out Hewitt's testimony as unconvincing, accepting the adult victims' testimony of childhood sexual assault, finding convictions in rape of 12-14 year old girls.

Two primary Hewitt documents were the 'love' letters written by Hewitt to 12/13 year old ex-tennis student victim - Hewitt defended letters as not written with the intent that the prosecution stated.

Judge Bam even threw out the testimony of one of the victims parents, as they claimed she was lying in retelling Hewitt's sexual assaulting of her as a child.

Of course, as I previously stated, these are two different cases, evidence and methodology...

Hewitt trial: http://www.iol.co.za/news/crime-courts/game-over-for-hewitt-1.1836069#.VROppbIaySM

http://www.rdm.co.za/sport/2015/03/25/hewitt-a-star-burned-out-by-menace