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MagistraeLouw

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First

Rj'S

ri:lent

Nat.Dir.OfPublicProsecutions

Secon~

pbndent

Ho.PatriciadeLillelMP,IDThirdspondent

III»

Mr.haboMbeki,FormerPresidentFou~tespondent

Mr.BulelaniNgcuka,'FormerNPANat.Dir.Fifth'pondent

Mr..S.Selebi,FormerSAPSComm.Sixt~spondent

Mr.BMSkosana,For~erMin.CorrectionssevE1~tll~espondent

Mr.NelsonMandela,rormerPresident

Eig~tllIt

espondentMinisterfCitizenship&Immigration,CanadaNinth

~dent

Per:DutyAttorneyGe~eralofCanadaSee1U1,1[11],[12]

[13]PerUnitedNationsHighCommissionerforRefugeeser:ConsulateGeneralofSwitzerland,CapetownIInstitute:NorJegianNobelCommitteeTenth

dentalNorwegianCo~sulate,Capetownsee:11ill[~1],[12]

[13~

I'II

NqTICEOFINTENTlpN:APPLICATIONFORLEAVE&FORJU'I~LREVIEW:

ITO

309d

(1»

304AofCrifninalProcedureAct("CPA");with

24(\~~l6eSupremeC""1tAct:

III

[2]Intermof

304AoftheriminalProcedureAct,

Rev;ew

procee~';

BeforeSentence,

ifamagistrteafterconvictiobutbeforesentenceisoftheopinionth:a

proceedingsin

espectfwhichhebrougtinaconvictionarenotinaccordancehi11Jstice,heshaLLI,withoutsentencingtheacused,recordthereasonsforhisopinion'aitransmitthem,~ogetherwiththrecordofproceeingstotheregistraroftheprovincial

diViSjil

h.avingjurisdiction,informheaccusedaccoringly,andpostponethecasetosomefut~I'~tependingthe

outcomofthereviewprceedings.SuchregistrarshaLL,assoonasIi':acticable,laythesameforreviwinchambersbeoreajudge,whohasthesamepowers

303.[3]Interm~of

309B,

when1n

nyapplicationforLeavetoReview,

iIllnbyaffidavit,

that

furthervidencewhichwuldpresumablybeacceptedastrue,is

'6le;thatifacceptedtheevincecouldreasonblyleadtoadifferentdecisionororder;,saveinexceptional

illII

See:

Statev.

JOh~one:

LegalArgument,l[ugust

2009:

LegalArgument:FactsNotInDispute:(I)tI23;15:32and18:32hrs,on10July2007,theDefentsentthreeSMS'stothePlaintiff;fortheattentionof:(i)Mr.ThaboMbeki,(ii)Mr,u

'iNgcuka,(iii)Mr.J.S,ISelebi,(iv)Mr.B.M,Skos(v)Mr.NelsonMandeland(vi)Mrs.PatriciadeLille;allc/oPlaintiff',inhercapai

:NonSubJudiceEx£cJtti~e,OppositionPa

(II)At10:23andII:32hon16July2007,theDefendantsenttwoSMS'stothePlaitiff~pr:theattentionof(i)RSALegislature;(ii)SAJudiciary;(iii)RSAEcutiveOfficials;allc/oPlaintiff',inhercapacityas

NonSufJr~·ceEx£cutive,Opposition~arty

e:CrimenInjuria:N\>ticeofIntention

IIIIIII

pagJ

110f

PleaseTakeINoticeThat:

111:Vf

under

309BI(1»&urtActhasbeenAnAPp~cationforLeavet~CommenceanAppLicationforJudicialR304AofCriminaLProcedurAct("CPA");and

24(1)oftheSupre~ecommecedbytheApplicnt.

[1]

State v. Johnstone: Crimen Injuria:Notice of Intention2

cases, that there is a reasonably acceptable explanation for the failure to produce the evidencebefore the close of the trial, the court hearing the application may receive that evidence andfurther evidence rendered necessary thereby, including evidence in rebuttal called by theprosecutor and evidence called by the court. Any evidence received in pursuance of anapplication, for leave to review, must for purposes of the review, be deemed to be evidencetaken or admitted at the trial.[4] Should Respondents, wish to oppose the application, please notify the Applicant, of YourIntentions, in writing;during court proceedings on 23 September 2009(Respondents Two toEight);or serve it on the Applicant, and file it, with proof of service, at the Registrar, within 21days(Respondents Twoto Ten), of receipt of this application for Leave.[5] If you fail to do so, the Court may nevertheless dispose of this application for leave and, if leave is granted, the subsequent application for Judicial Review without further notice to you.[6] The application seeks leave of the Court to commence an application for judicial

review

of:The decision of Court A Quo/Magistrate Louw in the Capetown Magistrates Court, dated 12August 2009, in Magistrates Court File 14/1198/08 (previously # 17/1384/07), also known asSAPS File: CAS: 1340/7/07 (previously George: 572/02), and received by the Applicant on 12August 2009, during court proceedings, wherein the Magistrate found theDefendant/Applicant Guilty on three charges of Crimen Injuria.[7] In the event that leave is granted, the Applicant seeks the following relief by judicial review:[7a]An order for a writ of

Mandamus

, or relief in the nature of

Mandamus

, which remedies thecourt a quo’s irregular Findingsof Guilt, byrequiring Magistrate Louw to comply with hisstatutory duties to allow for:

(I)

An Order of Special Entry of Irregularities & Illegality

(§ 317, CPA):

(a)Irregularity:

Courts Irregular Conclusions

that the Defendant: (i)‘Insisted onconducting her own Defence,refusing all legal representation’;(ii) ‘would not use thecrimen injuria words ‘kaffir’ et al; towards another person again’;(b)

Illegality

: State’s Unlawful Arrest of Defendant on 18 July 2007

: in that the ArrestingOfficer intentionally and wilfully Arrested Defendant without any legal valid ArrestWarrant documentation;(c)

Illegality

: State’s Unlawful Detention of Defendant from 18 July 2007, to 22 August 2007

; in that the Arresting Officer intentionally and wilfully knew that the Defendantwas arrested, and consequently being detained, without any legal valid Arrest Warrantdocumentation;(d)

Irregularity

: State’s Irregular Pre-TrialObstruction of Justice, by Allegations of Defendants ‘Mental Defects’

, in that the State violated the

Criminal Matters AmendmentAct 68 of 1998

, Due Process Referral Procedures by (i) coercing Defendantto see a State Psychologist on 19 July 2007; (ii) Insinuations to Defendants LegalRepresentatives as to Defendants alleged ‘Mental Defects’; & (iii) releasing a deceptivereport tothe Media on 19 July 2007, that (a) the Defendant had been referred forPsychological Observation; (b) the Report of such Psychological Observation, wasto besubmitted to the court on September 22, 2009.

(II)

Order for the Reinstatement and Enforcement of Political Necessity Defence FormalAdmission Agreement Obligations

(§ 140 & 219A; 220; CPA), with related orders for:(a)

Clarification of Disputed Facts in Issue

(§ 212B, CPA);(b)

Adducement of Further Evidence to Disputed Facts

(§ 309B (4), CPA); and(c)

Securing Attendance of Witnesses to Disputed Facts

(§ 179, CPA).

State v. Johnstone: Crimen Injuria:Notice of Intention3

(III)

[If (II) Refused, an]

An Order to Correct the Record: Withdrawal of Defendants PoliticalNecessity Defence Formal Admissions

(§ 140 & 219A; 220; CPA); and

(IV)

Leave to Apply to the High Court: Western Cape,for an Appeal of Conviction.

[7b] Alternatively, an Order for a writ of

Certiorari

, or relief in the nature of

Certiorari

, quashingthe Guilt Finding of Magistrate Louw, and referring the matter back for re-determination inaccordance with the law, by a different Magistrate; in accordance with §313,

Institution of proceedings de novo when conviction set aside on appeal or review.

[7c]An order for a writ of

Mandamus/Certiorari

, or relief in the nature of

Mandamus/Certiorari

,that should any Magistrate, High Court Judge, or State Official, dealing with this matter, onReview, or

De Novo

fail to understand the Applicant’s (Defendant’s) Radical Hon(our)sty Religious Cultural language

; that in terms of

6(2) of the Magistrates Courts Act 32 of 1944,and/or Rule 61(1) of the Uniform Rules of Court; read in conjunction with the

Constitution of the Republic of South Africa, Act 108 of 1996,

§ 15 (Religion, Belief and Opinion), § 16(Expression), § 30 (Language and Culture), § 31 (Cultural, Religious and Linguistic Communities); andArticle 6 of the London Charter

;

a Radical Hon(our)sty interpreter is provided for such Magistrate, Judge, or Prosecutor; at State Expense.

[8]In the event that leave is granted, the application for Judicial Review is to be based on, and inaccordance with, the following Grounds for Review:

(a)§ 24(1)

Supreme Court Act 59

, of 1959:i.Absence of Jurisdiction; read with § 117 CPA,

Special Case

.ii.Interest in the cause; or the commission of an offence referred to in Part 1 to 4,or section17, 20, 21.. of Chapter 2 of the

Prevention and Combatting of Corrupt Activities Act

, 2004, on the part of the presiding judicial officer;iii.Gross Irregularity in the Proceedings

;iv.The Admission of Inadmissible or Incompetent Evidence, or the Rejection of Admissible or Competent Evidence(b)§ 8 and 39 of the

Constitution of the Republic of South Africa, Act 108 of 1996

readwith § 24 (2) of the Supreme Court Act 59 of 1959

, and

Civil Disobedience and the Necessity Defence

among others: (*) the

Nuremberg Principles

of individualaccountability, i.e. Article 6 of the

London Charter

; (*) The Zykon B Case

; (*) theNuremberg Defence in Pentagon Papers Case

, *

Chicago v Streeter

, No. 85-108644 (Cir.Ct., Cook County, Ill. May 17, 1985)

; (*) Civil Disobedience:Conscience, Tactics & The

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Tribunal

, Aug.8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 (known as the London Charter). Article:6(a)–(c). Article 6(b). Crimes against humanity are defined as:[M]urder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during war; orpersecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether ornot in violation of the domestic law of the country where perpetrated . . . .

See also:

Goldfields Investment Ltd and Another v City Council of Johannesburg and Another

1938 TPD 551, at 560: “it is not merely high-handed or arbitrary conduct which is described as a gross irregularity; behaviour which is perfectly well-intentioned and bona fide, though mistaken,may come under that description. The crucial question is whether it prevented a fair trial of the issues.”

S.24(1) of the Supreme Court Act sets out the grounds upon which the proceedings of an inferior court may be reviewed before a High Court and S.24(2) stipulates that nothing in subsection 24(1) shall affect the provision of any other law relating to the review of proceedings of inferior courts.

Annexure:

Civil Disobedience and the Necessity Defence

, by John Alan Cohan, Pierce Law Review

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Tribunal

, Aug.8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 (known as the London Charter).Article:6(a)–(c). Article 6(b). Crimes against humanity are defined as:[M]urder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during war; orpersecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether ornot in violation of the domestic law of the country where perpetrated . . . .

eprinted in

The Law of War: A Documentary History

1487 (L. Friedman ed., 1972): (in which civilians were charged with providing Zykon B(prussic acid) used to kill prisoners in concentration camps). “[T]he provisions of the laws and customs of war are addressednot only to combatantsand to members of state and other public authorities, but to anybody who is in a position to assist their violation.”

Individual responsibility depends “on the extent of complicity as reflected in actions and knowledge. Richard A. Falk,

The Nuremberg Defense in the Pentagon Papers Case

, 13 COLUM. J.TRANSNAT’L L. 208, 231 (1974).

Chicago v. Streeter

, eight demonstrators were charged with trespass in connection with a protest at the Chicago office of the South AfricanConsulate. The court allowed the jury to hear evidence that theactions of the defendants were necessary to prevent violations of international lawunder the Nuremberg Principles. The accused argued that the government of South Africa had been committing crimes by its policies of racialsegregation and that the defendants acted reasonably in their efforts to prevent the continuation of these crimes. All defendants were acquitted.