[DEBATE] : Re: Devan Pillay

[Dominic Tweedie]

Hi Peter,

I can see that both sides might want to appeal Judge van der Merwe's
decision, as you say, but I can't see how they can succeed even to get leave
to appeal. Would you like to apply your legal mind to that problem, from
both sides? I would be interested to know exactly how it might be done.

Let me sketch out the problem as I see it from my lay person's inexact
knowledge of the law.

As far as I know the appeal would have to be made on grounds of law, and not
fact. So if the judge finds as a matter of fact that there was a rape and
there was an intention to rape then that's the end of the matter, isn't it?
The Zuma team has given no indication of disputing any part of the process
and accepted the judge after knocking out four or five others. If he is
convicted, where can Zuma's team find a basis for an appeal? I don't see it.

If there is an acquittal the state (not the "complainant", who is not
actually a party to the action, unless I am mistaken) might seek grounds for
an appeal, but where could they find them? The first place to look would be
the judge's reasons given for his decision, which we have not yet seen. If
he wants to avoid giving hostages to fortune of this kind he will say rather
little, I presume. This judge is not an amateur.

The matter of the judge's allowing of the complainant's previous history is
to be explained by the judge. He committed himself to do that at the end of
the trial. The prosecution might be hoping for something there to get hold
of but since they accepted this decision and did not warn of an intention to
appeal it they are not all that likely to succeed, surely.

Then they could look for some kind of misdirection during the trial, but
there's nothing like that to be found, and certainly nothing of the kind
that has been flagged by the prosecution during the trial.

The NPA could claim that Charin de Beer was incompetent, but that's way too
wild. I don't think so, and even if they did, such appeals are weak and
unlikely to succeed.

No, the next moves in the "Zuma affair" will be outside the courts, I think.
But maybe you can see things I cannot see?

If so, please assist.

Dominic.




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-----Original Message-----
From: debate-bounces at lists.kabissa.org
[mailto:debate-bounces at lists.kabissa.org]On Behalf Of Peter Mahlangu
Sent: 27 April 2006 12:59 PM
To: debate at lists.kabissa.org
Subject: [DEBATE] : Re: Devan Pillay

Dominic: Now what about all of you? Are you ready to
accept an acquittal? Is Raymond Suttner? It seems not,
and that's a big problem, people.

Peter: Experience teaches us that, in such
politically/emotionally charged trials, the verdict
will not be accepted by all. The OJ Simpson trial and
the recent "dry-clean" murder case are perfect
examples. There is no doubt that both the defence or
prosecution in the Zuma matter will appeal if they
lose.