Discussion Thread #60 - 14.9.12 ~ the appeal~

[Lux et Veritas]

Ha!! I think Nel just nailed Masipa on the total irrelevance of Seekoi with a Constitutional Court trump card!

I'm SO happy Prof. Grant is on the team.

 

[zwiebel]

N: We argue, as far as our right to appeal because there was a competant verdict, is no longer a hurdle...I only have to convince this court there is a reasonable prospect of success....

Nel moves onto his 'second hurdle' and my live feed gets bored and goes elsewhere again.

 

[zwiebel]

Karyn Maughan @karynmaughan
Follow

Nel argues that Seekoei ruling - from the 80s - has been superseded by a constitutional court judgement. No longer relevant @eNCAnews

 

[JudgeJudi]

Mandy Wiener @MandyWiener · 52s 52 seconds ago
#OscarPistorius Nel: I don't have to convince this court I am correct, only that State may convince SCA to hear this appeal.


I just heard Masipa ask "What is the time?" She can't wait for this to end.

 

[ColonelMustard]

Nel isn't on his game tonight.

1. He has moved on to other cases thus he doesn't have his previous 100% focus.

2. The energy in that courtroom is non-existent.

3. His greatest talent shines in questioning witnesses.

4. Other?

 

[zwiebel]

Jc Mac Farlane ‏@Macfarlane123 3 mins3 minutes ago

Nel talking about Dr. Wouter Basson 's constitutional court case in which the state could appeal waiver . #Macfarlane123 #OscarTrial

 

[JudgeJudi]

Ha ha. Just noticed that James Grant is clean shaven. Dressed for the occasion?

 

[ColonelMustard]

Mandy Wiener @MandyWiener · 52s 52 seconds ago
#OscarPistorius Nel: I don't have to convince this court I am correct, only that State may convince SCA to hear this appeal.


I just heard Masipa ask "What is the time?" She can't wait for this to end.

Really? Really? That's SO rude.

 

[Lux et Veritas]

Nel is doing VERY WELL!!!

 

[G.bng]

Nell's reading from case law now, Seqoui or something?

He's on to point 4, in Afrikaans.

It's called "Seekoei". It's an old ruling or principle, case law, that means as per Professor Grant's post "The Seekoie Hurdle" (link to his translated article from Afrikaans, "The Seekoie-barrier"), in which he notes:

"... the state cannot appeal a decision if there was a conviction on a competent verdict - in other words where the accused was found guilty of a less serious charge, in this case theft."

However, the Seekoei principle is only applicable to State appeals from higher courts and not for those made from lower courts where the State can appeal even if there is an acquittal.

From his article I think Professor Grant is aimed at making a name for himself being the motor to changing an anomolous law:

The following strange phenomenon therefore exists in South African law: When an accused received a lesser conviction in a magistrate's court, the state may appeal against that decision on on legal grounds.

But when an accused convicted of a lesser offence in the high court, the state cannot appeal. It does not look like there is any valid reason why we should distinguish between appeals from the High Court and from the lower courts.

This is one of several reasons why it is wrong, and needs to be rectified by the appeals court. No one has succeeded in the last 30 years in this, but now Nel is going to do his best.

I think she will definitely allow the appeal against sentence, the verdict I am not convinced she will allow it because unless they come up with some good arguments the questions are more about factual findings than questions of law. But even if she does allow it the SCA could still reject it too. Anyone's guess.

 

[zwiebel]

Pistorius should have been convicted of murder, Nel says. If the court has wrongly applied the principle of dolus eventualis, a conviction for murder is inescapable.

http://www.theguardian.com/world/li...ecution-appeal-culpable-homicide-verdict-live

 

[Lux et Veritas]

Masipa already looks totally resigned to granting leave to appeal ... Nel is on fire and he isn't even done! LOL

 

[zwiebel]

Well, Nel confused me now, with a hypothetical example of OP going into bathroom and deliberately firing four shots into Reeva: 'Why is application of law to acused, where he fired 4 shots thru closed door, not exactly the same?'

 

[katydid23]

Barry Bateman @barrybateman · 3m 3 minutes ago
#OscarPistorius Nel: further questions whether the legal principles pertaining to circumstantial evidence were properly applied. BB

Barry Bateman @barrybateman · 4m 4 minutes ago
#OscarPistorius Nel: if found that the court incorrectly applied the principle of dolus eventualis, the the accused is guilty of murder. BB

Barry Bateman @barrybateman · 7m 7 minutes ago
#OscarPistorius Nel: makes the point that he only needs to convince this court that the SCA will hear the appeal. BB

 

[ColonelMustard]

Where's the other assessor?

 

[katydid23]

Barry Bateman @barrybateman · 2m 2 minutes ago
#OscarPistorius Nel: says the application of the law principles to the facts is a question of law. BB

Barry Bateman @barrybateman · 2m 2 minutes ago
#OscarPistorius the defence is opposing the state’s application arguing that the state intends appealing on matters of fact, now law. BB

 

[zwiebel]

Ah, I think I'm getting it. Nel speaks of case law where an 'unlawful act' was not the intended main act, but an accused saw the possibiliity of that result during a course of action, and went ahead anyhow.

I think. Lots of Dolus this and that's in there...

 

[katydid23]

Barry Bateman @barrybateman · now
#OscarPistorius Nel reads case law - it is possible that he may in the eye of the law have the intention, even though he does not wish it.

 

[zwiebel]

Nel: with the utmost respect....he must have foreseen that it could have fatal consequences...

Long pause.

 

[zwiebel]

Nels is saying 'With utmost respect' every couple of mins.