Es wird mal wieder Professor Grant zitiert:
"In my view... that judgment isn't very well reasoned and I also don't think it would stand up to constitutional scrutiny," Wits law professor James Grant said.
However, the State could encounter a "hurdle" because of the Supreme Court of Appeal case, State vs Seekoei, which limited the State's right of appeal.
The 1982 Seekoei case held that the State could not appeal if a conviction was made on a competent verdict.
"It [the Pistorius judgment] was a competent verdict, he was acquitted of murder and convicted on a competent verdict," Grant said.
If the NPA could overcome the Seekoei issue and is given the opportunity to appeal, two things could happen.
Empfehlenswert auch weiter zu lesen:
http://www.news24.com/SouthAfrica/Oscar_Pistorius/Pistorius-judgment-not-well-reasoned-expert-20141024 (Archiv-Version vom 27.10.2014)Also, laut Grant steht dem Staat kreuz auf dem Weg zur Appelation das Seekoei Case vom 1982.
Im Kommentarium tritt allerdings ein Kenner (im besten Sinne des Wortes) auf, Vincent Van G, wer schön begündet, wie das gegebene Case gar nicht unter Sekoei zu drängen ist. Als gäbe doch die Möglichkeit, dass der Staat auch das Urteil ohne weiteres appellieren kann.
Inhaltlich habe ich gar nicht versucht, voll mitzukommen. Mein Interesse begrenzte sich mit der Schlussfolgerung:
But, where the state asks and argues that the conviction of culpable homicide should be substituted with a conviction of murder and, that the sentence should be increased, section 322(1) applies, not section 322(4), and Seekoei poses no problem.
/ES kommen da zu Wort die SA 'Steuerzahler', von denen einige gar nicht hören wollen, dass weitere Mio´s rausgegeben sollten. Auch die 'vor Ort' Lilas sind present - wir werden hier als Vampire behandelt, die das lezte Tropfen Blut vom Lieben ... absaugen zu versuchen:-) Mehrheit sind uns, jedoch:-)/
Hier manche Auszüge aus dem Kommentarium:
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Vincent Van G - October 24, 2014 at 15:53
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S v Seekoei 1982 is not apposite here. That case is about the reservation of questions of law by the court at the request of the prosecutor, for determination by the Supreme Court of Appeal. The Appellate Divsion (as it then was)then held, correctly it appears, that a question of law can only be reserved and dealt with in terms of section 322(4) read with 324 of the Criminal Procedure Act 51 of 1977, if there was an acquittal. As Seekoei was however convicted on a competent verdict, the AD held that he was not 'acquitted' as per section 322(4) and struck the appeal off the roll. Nevertheless, the AD did find that the questions of law were important enough to be determined by it, and allowed the Minister of Justice to bring a stated case to it and answered the two questions of law posed by the court a quo in any event in 1984. In the Seekoei case, however, the accused was not 'acquitted' of the charge, the charge was only varied by the court a quo from housebreking with intent to rob and robbery with aggravating circumstances to housebreaking with intent to steal and theft. The Oscar matter is however entirely different. In order to convict Oscar on culpable homicide, Judge Masipa pertinently acquitted the accused on the count of murder. She said 'Count 1: Murder, read with Section 51(1) of the Criminal Law Amendment Act, 105 of 1997, the accused is found not guilty and discharged. Instead, he is found guilty of culpable homicide.' Thus - there was a clear acquittal on murder.
Vincent Van G - October 24, 2014 at 16:19
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My comment above should perhaps be clarified and amplified a little - section 319(1) of the CPA entitles the prosecutor to request the trial court to reserve a question of law for decision by the Supreme Court of Appeal. Section 322(4) only kicks in where the SCA decides the question of law in favour of the state in the case of an acquittal, AND the SCA wants to order a retrial de novo before another judge in terms of section 324. It is only in that case where an 'acquittal' as per section 322(4) becomes important - as it was in the Seekoei matter. Section 322(1), however, enables the SCA, in a case of an appeal of any question of law reserved, to '(a) allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a failure of justice; or (b) give such judgment as ought to have been given at the trial or impose such punisment as ought to have been imposed at the trial; or (c) make such order as justice may require ...' The Seekoei decision only needs to be surmounted if the state hopes to get a retrial. But, where the state asks and argues that the conviction of culpable homicide should be substituted with a conviction of murder and, that the sentence should be increased, section 322(1) applies, not section 322(4), and Seekoei poses no problem.
Vincent Van G - October 24, 2014 at 16:39
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I hope the guy who thumbed me down has read S v Seekoei and sections 319, 322 and 324 of the Croiminal Procedure Act. If he / did, and still throws a thumbs down, he / she is a fool and is not at all interested in justice.
Josie de Villiers - October 24, 2014 at 20:25
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Thank you for taking the time to explain it so well. I think many of us understand it much better now. When it was discussed briefly on Channel 199 between the legal experts it sounded very complicated. I have no doubt that it will be complex to deal with but doesn't seem to be insurmountable and frankly looks as if there may well be a good chance of success. Would an appeal of this kind take a long time, on your opinion?
Vincent Van G - October 24, 2014 at 22:09
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josie - I can't say whether it would take a long time. However, the SCA has a discretion to fasttrack cases if it is a very important case for national and international jurisprudence. The big thing, however, would be firstly to convince Jude Masipa to reserve the question (or questions) of law. If she refuses, the state will have to petition the President of the SCA for leave to appel. And, if leave is granted, the matter just needs to be enrolled. i've seen cases enrolled within a few months - say 3. But, the biggest problem for tge state would be to convince either Judge Masipa or the SCA that it is a question of law that is being appealed. If it is a question of fact, as the law stands, the state has no right to appeal a wrong assessment of fact. The state may only appeal a wrong finding of law. Sentence is however another thing. The state can appeal against sentence inly. But that will not bring clarity and certainty as far as future case law is concerned. It would be much better if the merits (acquittal / conviction) is appealed. The SCA decision will then bring legal certainty and set precedent for future reference.
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