How does due process work?

[n***@gmail.com]

In a civil matter, are the facts all to be set down in the pleadings,
before the matter is heard?
If so what is to be heard?
If not, is it not very amateurish and wastefull of court resources to
NOT establish the essential facts, which may require time consuming
evidence collection, before the hearing?
Is the sytem considered as being an adverserial system, and thus the
Court may NOT initiate it's own argument/s?
Do the rules recognise that a finite time is required to prepare a legal
argument and/or a rebuttal?
By 'argument', I mean a construction of:
facts plus statutes and precedence(sp?) leading a to conclusion in law.
What is the time allowed to prepare and file/serve an affidavit
replying to a 'founding affidavit': the initial document of the plaintiff?
How many rounds/cycles of affidavits are allowed?
Where would I read on line, the procedure/rules relating to my
questions?

== TIA.

[Gordon Burditt]

Post by n***@gmail.com
In a civil matter, are the facts all to be set down in the pleadings,
before the matter is heard?

It certainly can't include the answers by one side's witnesses to
all possible questions the other side might ask. It can't include
the demeanor of witnesses answering questions.

It is highly unlikely to include actual physical evidence (some of
it may not be movable (e.g. a bullet hole in a large tree) or may
not fit in the courtroom (e.g. an 18-wheeler that crashed into
something)), although it might include photographs and lab reports
of analysis of such evidence.

I believe that if the plaintiff's pleading does not include enough
information to make a case if it's all assumed true, then it's
likely to be met with a motion to dismiss for failure to state a
case. For example: My car got keyed in my apartment parking lot.
(enclosed: picture of damaged car, and repair bills). Joe must
have done it. (backed up by: "everyone knows that", although nobody
saw it happen, and a rumor that Joe once went to jail for armed
robbery as a juvenile).

I'm not so sure that the defense raised by someone in a civil case
amounts to "facts". For example, the defendant might raise a number
of defenses to dispute a debt owed: (a) I never ordered that. (b)
I already paid it. (c) It was never delivered. (d) Someone else
must have gotten hold of my credit card number. (e) That debt is
past the statute of limitations. (f) That debt was a gambling debt
and is not legally enforcable. (g) I am not the person mentioned
in the plaintiff's documents - same name, not the same person.

In case (b) the defense might present a receipt, if there was one,
or claim payment was in cash. Otherwise, for (a), (c), (d), and
(g), the defense doesn't really have any documents to prove their
case. Would the plaintiff be expected to produce all the documents
with the defendant's alleged signature on them, and have handwriting
analysis done before filing the case, only to discover that the
defendant claims (c), so handwriting analysis on the credit card
receipt was pointless? The defense would need to get hold of the
plaintiff's documents *beforehand*, and do handwriting analysis if
necessary.

Post by n***@gmail.com
If so what is to be heard?

Cross-examination of witnesses of one side by the other side, for one thing.

Post by n***@gmail.com
If not, is it not very amateurish and wastefull of court resources to
NOT establish the essential facts,

Some of the essential facts are likely to be in dispute. Otherwise
there probably wouldn't be a lawsuit.

[Greegor]

What KIND of civil case?

Unpaid bills? Family Court? Tort claims?

Cases about unpaid bills are slightly
different from law suits for damages/tort.
Some kind of document is submitted where
the party OWED files a statement of
how much is owed and for what, perhaps
with copies of the bills and claims
about contractual late fees and interest.
Unpaid bills cases rarely need much more
"discovery".

Family Court is considered to be CIVIL court
but more precisely it's ADMINISTRATIVE law.
It's considered "bastard" law not because
it has to do with kids, but because it's an
insane/dirty blend of civil and criminal court.
ie: a "bastardization" of law.

Read up on discovery and pretrial.

Both sides get to see what the other side's
got, but pretrial exhibit/witness lists
also help gauge how much TIME to allot for
the case.

Judges and prosecutors in Family Court try
some amazingly corrupt crap that they'd
never dare try in a tort case.

Perjury by CPS caseworkers is actually
encouraged (subborned) by a system that
almost never charges them for perjury.

[n***@gmail.com]

Post by Gordon Burditt

Post by n***@gmail.com
In a civil matter, are the facts all to be set down in the pleadings,
before the matter is heard?

It certainly can't include the answers by one side's witnesses to
all possible questions the other side might ask. It can't include
the demeanor of witnesses answering questions.

Is there no procedure in your jusidiction, where the parties can
elect to settle the matter 'on the papers': particularly when there's
NO disagreement about the facts ?

Post by Gordon Burditt
I believe that if the plaintiff's pleading does not include enough
information to make a case if it's all assumed true, then it's
likely to be met with a motion to dismiss for failure to state a
case.

That seems not to answer my question.

Post by Gordon Burditt
I'm not so sure that the defense raised by someone in a civil case
amounts to "facts". For example, the defendant might raise a number
of defenses to dispute a debt owed: (a) I never ordered that. (b)
I already paid it. (c) It was never delivered. (d) Someone else
must have gotten hold of my credit card number. (e) That debt is
past the statute of limitations. (f) That debt was a gambling debt
and is not legally enforcable. (g) I am not the person mentioned
in the plaintiff's documents - same name, not the same person.

Since it's difficult to prove a negative, I'll take (e) SOL.
That's what I'd call a "fact" [not a point of law].
It's a potential basis for a defence.
No, actually I'm wrong.
The applicable dates are facts.
And the interpretation of SOL is a point of law.

Post by Gordon Burditt

Post by n***@gmail.com
If so what is to be heard?

Cross-examination of witnesses of one side by the other side, for one thing.

Post by n***@gmail.com
If not, is it not very amateurish and wastefull of court resources to
NOT establish the essential facts,

Some of the essential facts are likely to be in dispute. Otherwise
there probably wouldn't be a lawsuit.

Therefore you are suggesting that when NO facts are in dispute,
there's nothing to be heard, other than the judgment based on
on the agreed facts.

Here's a simplification [to make it understandable] of a matter,
when NO facts are in dispute.
---
The municipal council admitted that their computer was
wrongly billing you for electricity reconnections.

To simplify the model: assume the correct billing is $10 per month,
and the faulty billing was $11 per month.

You hand-delivered [signed as received] a notice that you were
withholding payment until they fixed their accounting system, or
until a Court heard and decided your complaint.

After 2 months withholding the council sent a demand letter
for $22, together with the bill, warning that if you didn't pay the
$22 [for 2 months withheld] they'd sue.

At 3 month's when the false bill was for $33 you hand-served a
letter saying:-
"see my enclosed spreadsheet which shows that I NOW owe $30
[which exceeds your demand letter for $22]. If you can't show any
error in my calculations then please accept that $30 is the correct
amount owing."

The council contrived a default judgment, by alleging that the
property was occupied by squatters and that the sheriff was unable
to serve the summons on you. In fact your property was occupied
by your paying tenants.

After you discovered that there had been a default judgment
you applied for a rescission of that default judgment.

In Court the council's attorney stated that you had no defence
against the summonsed claim [of $22] because you had admitted
to owing $30, in your letter; which amount was even more than
the claim. The magistrate agreed with the council's attorney
[as indicated by the magistrate's written reasons for judgment]
and refused to rescind the default judgment.
=================
I'm fascinated/astounded that although junior book-keepers
can see it immediately, 95% of "law people" can't see that:-
elementary principles of due process are that:
the charge/complaint must be unambigiously specified, so that
the respondent can reply accordingly.
In this case the charge was unabigiously based on the faulty
municipal acoounts of owing $22 for TWO month service.
And the spread-sheet, which the plaintiff accepted [in their
bird-brain attempt to deny the respondents defence] clearly
showed that $20 was admitted as owing- THEN.

Law-people write "at all appropriate times".

Running transactions, like rental make it impossible to
"freeze the claim" at the claim date, because the parties
need to be able to 'disengage' after the Court decision.

But in this case of a land-owner respondent, absconding
is not possible. Besides the municipal authority can veto
any land ownership transfer.
And more specifically, there are particular statutes that
apply to a dispute between municipal authorities and
land owners.

The appeal of this matter really records gross abuse of
due process. But it's pointless detailing that if the above
hasn't been adequately explained.

[n***@isp.com]

* * *
Is there no procedure in your jusidiction, where the
particularly when there's NO disagreement about the
facts ?

Such a procedure is made available in England and in other U.K.
countries, in state and in federal courts in the U.S., and (though
sometimes in variant ways) in western European countries.

Post by Gordon Burditt
I believe that if the plaintiff's pleading does not
include enough information to make a case if it's all
assumed true, then it's likely to be met with a motion
to dismiss for failure to state a case.

That seems not to answer my question.

You would understand that he quoted response does answer your question
if you relatedly understand "pleading" as your respondent here uses
that word to refer to the first of that word's alternative uses of
which I reminded you earlier - i.e., what is alleged in (and
especially if not in a verified) complaint or petition, answer with or
without counterclaim(s) and/or cross-claim(s), and reply thereto if
needed and served/filed.

In other words, the function of a "pleading" as your above respondent
plainly (even if here only impliedly) uses that word is to contain
allegations that provide notice, (ordinarily) not evidence, to the
other party of, among other things, facts that the pleading party
contends should be admitted or which that party otherwise proposes to
prove in accordance with whatever is the applicable evidentiary
standard for so doing.

This relatedly is why legislation and court rules in your country like
in the others referred to above make available to a defendant a
pre-answer opportunity to move to dismiss a lawsuit on failure to
state a valid cause of action grounds (sometimes more generally
referred to as a failure as a matter of law to state a claim on the
basis of which relief may be granted grounds) as distinguished from a
(for the most part permitted only after joinder of issue by way of an
answer) motion for summary judgment by the defendant or by the
plaintiff.

(Sometimes, however, a court is authorized to and will "convert" such
a pre-answer motion to dismiss into one for whole or partial summary
judgment depending on the nature/contents of that motion and of the
response thereto.)

Since it's difficult to prove a negative, I'll [lets posit
an SOL. defense alleged in an answer]. That's what I'd
call a "fact" [not a point of law].

You can call it whatever you'd like but it (i.e., whether the SOL
relied on bars the claim sued upon) is not (only) a "fact" and,
instead, is a "mixed question" of fact and of law.

In some lawsuits, whether plaintiff's alleged claim(s) may/should be
properly dismissed on SOL grounds can be determined from the pleadings
_if_ it is clear therefrom when plaintiff's claim sued upon first
accrued and when plaintiff did sue thereon (i.e., when plaintiff's
claim sued upon should be dismissed as time-barred if the defendant
does not waive a SOL affirmative defense) -- in other words, if the
facts about cause of action accrual and about when plaintiff sued are
(directly or in effect) admitted by or otherwise clearly determinable
from the pleadings since a pleading's allegation of fact, if admitted,
ordinarily will be deemed by the court to be a fact that has been
proven.

But even when the facts about these "When?"s are clear from the
pleadings instead of being clearly in dispute, whether the SOL bars
the claim sued upon in whole or in part remains a question of law in
addition to being a question factually resolvable from the pleading
alleged including if admitted facts.

And, BTW, it frequently is not the case that it is always or even
nearly always difficult to "prove a negative" in this and in any
number of law related connections.

[ <snip> - a misleading summary of an actual lawsuit
in which the poster was a party and which was finally
resolved many years ago despite earlier queries by the
poster that enabled an accurate characterization of
which and which have already been the subject of
numerous earlier postings in which, and more to the
point here, the poster's questions and arguments
relating there to have been been definitively analyzed
and also definitively/correctly answered by numerous
respondents. ]
* * *
[Is it correct that] when NO facts are in dispute, there's
nothing to be heard, other than the judgment based on the
agreed facts.

Sometimes litigating parties stipulate to the operative/relevant facts
(e.g., submit the case to the court for determination based on an
agreed statement of facts).

Sometimes, and comparatively less infrequently, one or both parties
will move for summary judgment based on some combination of what the
movant(s) contend(s) to be admissions in the other's pleading and
affidavits supported by exhibits that may include all or parts of the
transcripts of pretrial depositions or answers to interrogatories and
pertinent documentary evidence. Generally speaking in such cases,
the court's proper function will be to determine whether there is a
materially disputed fact that requires resolution at an evidentiary
hearing or full plenary trial but not the determination of a contested
such fact - IOW, is properly confined to factual issue finding but not
determination of disputed factual issues depending on the nature of
the case (e.g., on whether "parole evidence" may lawfully be
considered if such proffered evidence contradicts a governing
writing).

* * *
Running transactions, like rental make it impossible to
"freeze the claim" at the claim date, because the parties
need to be able to 'disengage' after the Court decision.

As has been demonstrated (many times and for many reasons) earlier,
this is in almost every way a substantially incorrect statement.

[n***@isp.com]

Post by n***@gmail.com
In a civil matter, are the facts all to be set down
in the pleadings, before the matter is heard?

As a preliminary matter, because of your undefined use of a key word -
"pleadings" - this is a too broad simply to answer question.

In other words, both on its face and all the more so when considered
in light of your many earlier law related posting, this question posed
this way suggests that you are using "pleadings" in conflated ways:

OTOH, to refer to plaintiff's complaint (or functionally
equivalent document depending on the nature of the litigation such as
a "petition") and to defendant's answer with or without counterclaims
or cross-claims, and, if relevant, to plaintiff's reply to a
counterclaim (i.e., "pleadings" in the most commonly prevailing law
formal definition of that word); and

OTOH, to the respective parties' above referred to
documents containing their respective allegations and also to all
other papers (e.g., affidavits/declarations supporting/opposing
pretrial motions, exhibits thereto which might or might not include
all or selected portions of pretrial deposition transcripts or
interrogatory answers; etc.).

Nor for the purposes of your present query is this merely a technical
distinction. Thus, for instance (while for too many reasons
separately to list/discuss in one necessarily brief news group
posting), "No" generally would be the answer in connection with the
first of these alternative uses of "pleadings" and, often but not
always, "Yes" ordinarily would be the answer if one uses "pleadings"
in its second above summarized broader sense.

But one of the basic reasons for the here needed "often but not
always" qualification has importantly to do with the process component
of "due process" -- namely, what (if anything) in light of the
procedural posture of the case when submitted to the court for
determination the respective parties have and have not done in
conformity with the court's applicable rules.

E.g., is or is there not truthful (or not timely contested/refuted)
proof of service of process? was there no or faulty service of
process (which was or was not timely contested/proven)? if process
was served as required by law, did the defendant inexcusably default?
even if process was not served as required by law, did the defendant
opt to appear and defend on the merits anyway? has defendant
defaulted but might the defendant have been relieved from that default
if the defendant had moved for such relief in a timely and otherwise
effective/persuasive manner? if the defendant in default has not done
this, are the operative facts and is the related procedural posture of
the case such that the defendant is/isn't properly deemed to have
waived a right defendant otherwise would have had to defend? etc.,
etc.

Note, however, that all these variants turn on the more
general/summary response to your repetitively here stated query -
namely, that, generally speaking, "due process" principles both
require and provide for affording a defendant fair notice of the
claim(s) on which plaintiff sues, a reasonable amount of time within
which to defend if the defendant then chooses to do so, a reasonable
and hence fair opportunity for both parties to investigate and to try
to prove the relevant/operative facts including by use of pretrial
discovery where was are "fair" and "reasonable" times and available
procedures in this connection are in the first instance explicitly
prescribed by statute or rule but ordinarily with a also rule enabled
opportunities to stipulate to more such opportunities or, failing
agreement, to be granted such further opportunity by the court on
motion for good cause shown.

The converse/corollary is that neither party shall be entitled to a
unilaterally especially if arbitrarily defined open-ended opportunity
to deny finality of judicial determination by way of repeatedly
relitigating matters that already have been decided or which properly
(i.e., in accordance with applicable law) deemed to be waived or
otherwise precluded from (re)litigation.

Post by n***@gmail.com
If so what is to be heard?

Using pleadings in the second/broader sense summarized above, what the
respective parties will have submitted to the court in accordance with
the applicable statutory and procedural rules by which one or all of
them ask that the matter be heard and determined.

In other words, all that one can say correctly in response to such a
broadly posed question is that the nature/amount of process that will
be constitutionally and statutorily due and court rule enabled for the
respective parties always depends on essentially these two
considerations:

First, exactly what they have and have not done in the
lawsuit light of whatever are the requirements of governing
substantive law and of governing procedural law as authoritatively or
as very probably will be construed/applied by the court; and

Second, if a party wishes to contend that applicable law
is ambiguous or ought otherwise be interpreted/applied to afford more
opportunity than has been or very probably will be construed/applied
by the court to achieve the ends to which you refer, whether the party
also in timely fashion has moved the court for an extension or
modification of the what the adverse party contends to be a more
limited such opportunity and in so doing demonstrates good cause for
the grant of the requested relief.

Post by n***@gmail.com
If not, is it not very amateurish and wastefull of
court resources to NOT establish the essential facts,
which may require time consuming evidence collection,
before the hearing?

A key purpose and also core elements of "due process" as well
established in your country (So. Africa) and in more or less
procedurally and substantive law comparable jurisdictions (e.g., in
England and elsewhere in the U.K., in the U.S., and in many western
European countries) is the statutorily prescribed or court rule
prescribed periods during which litigating parties may or will be
precluded from engaging in evidence collection, pleading drafting,
etc. - time limits which, as noted, ordinarily are made flexible by
way of stipulation or, absent mutual agreement of the parties, by
court granted extensions/opportunity (usually, however, providing that
the party seeking a judicial such extension move for such relief
before the expiration of the statute/rule prescribed period in
question).

This question's (deliberate?) omission of all reference to timeliness
as defined by jurisdiction specific law and to what the respective
parties will and will not have done in this connection make this
question misleading since the absence of all/any such reference embeds
in this question the seriously mistaken assumption that "due process"
requires open-ended/limitless extensions of time to what one party, in
that party's unilaterally asserted need or desire, says is needed to
archive evidence collection and evidence submission.

Post by n***@gmail.com
Is the system considered as being an adverserial system,
and thus the Court may NOT initiate it's own argument/s?

More or less generally speaking, what your emphatic "NOT" suggests you
would like to be the answer to this in part actual and in part merely
rhetorical question - "No" - would not be correct as you instead here
again (implicitly) conflate as if one and the same what commonly are
(and, in litigations in which you earlier posted that you have been a
party, actually were) very different scenarios/occasions to determine
what process is/isn't due the respective litigating parties:

- a lawsuit in which process is served on the defendant
in accordance with law but in which the defendant then defaults in
appearing and answering and in which, if not refuted, the plaintiff's
pleadings and supporting documents demonstrate plaintiff's entitlement
to all or most of the relief for which it sues;

- a lawsuit in which process is served or stipulated to
and in which the defendant answers and in which, after the earlier of
the completion of pretrial discovery, etc., or the expiration without
extension of the applicable period within which to do that, a party
moves for summary judgment and the other party opposes on the merits
thus without seeking more pretrial preparatory time/opportunity, i.e.,
when (explicitly or in effect) both parties represent to the court
that the case is ripe for a determination whether it should be
summarily determined or scheduled for a plenary trial which thereafter
is conducted;

- a lawsuit in which the defendant appears and answers,
in which the parties in timely fashion engage in whatever pretrial
investigation and mutual discovery they each opt for, in which neither
party moves for summary judgment, and in which one (or both/all) of
the parties then serve and file the documents needed to have the court
schedule and conduct a plenary trial;

- a lawsuit in which process is served on the defendant
in accordance with law, in which the defendant then defaults in
appearing and answering, in which the plaintiff's pleadings and
supporting documents demonstrate plaintiff's entitlement to all or
most of the relief for which it sues, in which a default judgment is
granted to plaintiff against defendant as a result of which the
process that will and need not be due the defendant will depend on the
degree (if at all) to which defendant in both a timely and effective
substantively/procedural manner in conformity with applicable law
seeks relief from such a judgment.

(You will recall that you are intimately familiar with the last of
these alternatives re. which, if one was to make a, "What not to do if
a defendant does not want to disentitle himself to relief!" and a,
"What to do to be entitled to relief!" listing, you earlier made
painfully clear in many news group postings that you opted for the
first and not the second of such listings.)

Post by n***@gmail.com
Do the rules recognise that a finite time is required
to prepare a legal argument and/or a rebuttal?

Yes, AS YOU ALREADY KNOW, for all the above summarized scenarios.

Post by n***@gmail.com
facts plus statutes and [ applicable court rules
and judicial] precedence(sp?) . . .

. . . "precedent" or "precedents" . . .

Post by n***@gmail.com
. . . leading a to conclusion in law.

This is what legal "argument" means to courts, too.

Basically and as noted, the answer to the "How?"s and "When?" in this
connection will depend on whether one refers or not to a default case
scenario, to whether a defendant will have appeared and in which the
plaintiff or defendant moves for summary judgment, to whether in a non
summary judgment case one or both/all parties seek a trial in
accordance with applicable procedural requirements (i.e., do/don't
abide by the rules that prescribe the sort of process that is due);
etc.

Post by n***@gmail.com
What is the time allowed to prepare and file/serve an
affidavit replying to a 'founding affidavit': the initial
document of the plaintiff?

These requirements vary somewhat from one jurisdiction to another and,
depending on the procedural posture of the case if/when this question
needs to be answers in your country and like others, are very clearly
stated in the applicable statutes and court rules.

Post by n***@gmail.com
How many rounds/cycles of affidavits are allowed ?

More or less generally speaking, there is a "one bite at the apple"
rule, although, continuing to depend on the particular procedural
posture and other specifics of the litigation, there can be
qualifications and, in unusual cases, outright exceptions to this
principle.

Such qualifications include rule and decisional law requirements re.
when renewal or reargument or other reconsideration of earlier made
judicial rulings will/won't be entertained and granted or denied, re.
when/how "law of the case" and "res judicata" and "collateral
estoppel" principles will/won't apply, and re. when estoppel or waiver
will/won't properly be due and apply in other ways.

Post by n***@gmail.com
Where would I read on line, the procedure/rules relating
to my questions?

You have posed this or a functionally equivalent question many times
in the past and this and your said functionally equivalent such
questions have been answered by numerous respondents many times.

You also said in numerous of your earlier (even if in large part
confusingly stated yet detailed) postings that you have read and have
purported to understand your country's statutes and court rules and a
fair sampling of its decisional law that deals with these and related
matters and you also have been referred to numerous decisions,
statutes, court rules, and other legal texts in your country and
elsewhere that further explain the history, purpose, and contents of
these principles.

Therefore, if not again posted merely in "trolling" mode, your present
query is puzzling at best, since your many earlier news group postings
and most responses thereto demonstrate that you know all the above.
NEVERTHELESS, if you would claim in good faith that you remain
confused and, if as you to not do above, you post a follow up query
that in adequately fact specific manner describes the nature including
procedural history and posture of your question, it is probable that
someone will be able to address and maybe even correctly/definitively
answer such a question in accordance with what appears to be the law
of your country.

[n***@gmail.com]

In article <***@4ax.com>, ***@isp.com wrote:

....

This question's (deliberate?) omission of all reference to timeliness

That's perfectly correct.
It's disastrous to be distracted by timeliness, when I can't get
[more than 5% of] law-people to IMMEDIATELY see the central
"$22 < $30" puzzle.

You are the only legal-groups-user who can handle long
explanations. A major problem is to condense the narrative.
That's why I need stand-alone abstract principles; which
can be put together, like modules.

Believe me, I've got plenty to write about timeliness on this
matter. But only for readers who've demonstrated that they
understand the "$22 < $30" puzzle and that the appeal judges
throwing in there OWN argument is unjust because it denies
due process.

Even before the timeliness consideration, the
case-within-a-case aspect should be understood.

An analogy is: when you're studying the mechanics/physics
of swinging pendulums, you don't consider the air friction
refinement, until you understand the more fundamental
Newtonian forces aspects.

Additionally, I consider it highly unprofessional to continually
be using 'pronouns'/ad-hominem, because my arguments must
be valid independent of personalities.

But for those who can't think abstractly, beyond their own
personal experience and who feel the need to 'put a label to a
face', a google search on: Johannesburg+"municipal billing crisis"
yields: ------------------
Web Results 1 - 10 of about 189,000 for Johannesburg municipal billing
crisis. (0.17 seconds)

[14]BusinessDay - 'Fraud played role in Joburg billing crisis'

18 May 2012 ... 'Fraud played role in Joburg billing crisis'.
Johannesburg mayor Parks Tau says
crooked municipal employees and residents have scammed ...
www.businessday.co.za/articles/Content.aspx?id=172078 - 208k -
[15]Cached - [16]Similar pages

[17]Update on the Joburg Municipal Billing Crisis - Joburg Advocacy
...

21 Jan 2011 ... The residents of Johannesburg have had enough! The
municipal billing crisis
continues to escalate and the city is doing nothing about it.
www.joburgadvocacy.org/.../residents-of-johannesburg-have-had.html -
84k - [18]Cached - [19]Similar pages

[20]'Joburg ignored offers to settle billing crisis' | City Press

22 Feb 2012 ... Mohlala's commission received 450 complaints on
Johannesburg's billing crisis
and the municipality was slapped with 45 compliance notices ...
www.citypress.co.za/.../Joburg-ignored-offers-to-settle-billing-crisis
- 20120222 - 89k - [21]Cached - [22]Similar pages
-----------------------------...etc.

This doesn't mean that I base my arguments on 'press reports'.
No, my arguments must stand or fall on pure logic.
And I consider it baby-talk to be continually refering to
"you" and "your country". It's NOT 'my country'.

But I want to take you up on debating the 'late condonation'
[timeliness] issue, because I've collected masses of evidence
and argument on that. My previous attempt at getting citations
for how Anglo societies handle 'timeliness' when the society has '
broken down' eg. war; failed, except for your key-phrase
"force majeur". In SA law AFAIK 'late condonation' is for the
discression of the Court. And the first question I ask, is "how
can a court which can't understand the simple '$22<$30' puzzle
evaluate the complex societal breakdown effect on timeliness?
But I'd appreciate if you'd crit my collected material of timeliness.

So, may I collect the timeliness arguments for you to destroy?

And I'd welcome anybody else joining in.

== TIA.

[n***@isp.com]

[ Big <snip> from lengthy post in/by which the poster
said or referred to as having earlier indicated
- that he has a major problem condensing his narrative
so that, avowedly preferring to speak/ask only in the
abstract, he does not post the contextual operative
facts about the lawsuit presently of interest to him,
- that he solicits abstract and preferably only "first
principles" of law which he nevertheless speculates will
provide him with analytically reliable answers for his
so far mostly just vaguely alluded to quandary, and
- that that he is in any event unwilling to provide
any more narrative relating to the principles/require-
ments of law that entitle and disentitle a judgment
debtor to be relieved of a default judgment, to
timeliness as relevant to him, of what he contends
to be related issues of due process, and the like, at
least until his postings' readers who would respond
re. the merits or not of his complaints, question
framing, and apparent arguments only if they demon-
strate to his satisfaction that they understand what
he only cryptically refers to in his posting as "the
central '$22 < $30' puzzle" which, while he does
not explain what it is in his posting, he contends the
judges who decided that lawsuit and his Internet news
group interlocutors have not solved (to his satisfaction). ]

It would/will be easy correctly and otherwise informatively for you to
be provided with further analysis and explanation that would answer
what appear to be your questions BUT ONLY IF, omitting all legal
argumentation about it, you would
EITHER confirm that the following is a fair summary of the basic
acts (not arguments about the significance or not of those acts) that
provide the factual basis for the said "puzzle"
OR, if the following omits what you would contend is a materially
relevant act, you correct or otherwise modify the following to provide
any such omission or material misstatement:

In connection with a contractual relationship by which a
seller-provider for a fee of certain services which you accepted and
used at what was to be a monthly base charge of $n
- the seller/plaintiff-to-be ignored a letter from you in which
you disputed the accuracy and related issues in its billing, stated
what you believed you owed and did not owe, and requested the seller's
acquiescence or that it at least provide you with what you would
consider a full accounting for charges you disputed and, instead, it
sued you for $z, i.e., some multiple of $n (with or without alleged
late fees or the like) which amounted to the sum it alleged was the
balance past due from you arising from your purchase and acceptance of
the alleged underlying services but which you did not pay as of the
time it commenced that lawsuit;
- You did not answer or otherwise defend that lawsuit before,
instead, the seller/plaintiff contended that your time to do so had
expired and it applied for a judgment against you on default in the
amount of $z;
- Exclusive of law authorized court costs and interest, if
any that the court also awarded, the court granted judgment against
you in the amount of $z;
- The service providing/accepting relationship continued
after the grant of that judgment and you thereafter paid some portion
of bills for those services during the post-judgment period;
- You moved to set aside that judgment;
- You attached to your moving affidavit a spreadsheet you
prepared in which you identified what you contended were the sums you
had paid and justifiably had not paid before commencement of the
lawsuit and also stated what you contended (and what the
plaintiff/judgment-creditor acknowledged in whole or in part) you had
paid during billing periods after the grand of the judgment;
- The court denied your motion, you appealed, and the
appeals court affirmed that denial;
- A judicially stated material rationale for either or both
the trial court's ruling and/or the appeal court's affirmance was
(were) to the effect that (i.e., in substance if not in these exact
words) it was appropriate/lawful for the court(s) to take into account
the post-judgment sums you had paid and accordingly to conclude that,
applying some or all of those past-judgment payments, you had (even if
indirectly and so only in effect) paid more than $z (plus, if
relevant, costs and interest otherwise required by reason of the
judgment) so that (in substance if not in these exact words) you
rendered moot your claim that the judgment should be rescinded;
- You made a later/second motion to rescind the judgment on
the basis of what you argued was a new and different ground than that
you that or those you had asserted in support of your first motion,
but, on the stated primary ground (in words or in substance) that that
second motion was precluded on a "You get only one bite of the apple"
principle (i.e., a law of the case or res judicata or collateral
estoppel ground), the court denied that motion too, and you did not
succeed on appeal from that denial; and, finally,
- what I refer to above as $z is what you refer to in a
symbolic/abstract way as $22 and what I refer to as the all or a
portion of the post-judgment sums you paid which the court(s) took
into account in denying your first motion and/or appeal is what you
refer to abstractly/symbolically as $30.
- - - - - - - - - - - - - - - - - - - - - -

You not providing the above suggested confirmation or correction will
prevent further analysis because numerous of your earlier
postings/queries indicate strongly that, rather than you paying
attention to legal analysis, you will bicker about the accuracy of
another's interpretation of whatever it is you mean by the "central
puzzle" an understanding of which, however, you say is a necessary
predicate for analysis.

[n***@gmail.com]

Post by n***@isp.com
It would/will be easy correctly and otherwise informatively for you to
be provided with further analysis and explanation that would answer
what appear to be your questions BUT ONLY IF, omitting all legal
argumentation about it, you would

No I can't "omitting all legal argumentation about it".
This is not a story book. It's a law forum. So here's the first citation
from the Supreme Court of Appeal [level 3 where level 4 is the
constitutional court]. --citation available on inet---
Kempton Park/Tembisa Metrolpolitan Substructure v Kelder 51/98
SCA held: "The council, as has been stated, owes its existence to the
provisions of the Local Government Transition Act 209 of 1993 and
the proclamations made in terms thereof. Its powers and duties are
conferred by the Constitution, by other statutes and the relevant
principles of public and administrative law. To impose upon it
additional duties in accordance with the principles of private law
seems to me to negate its function as an organ of state and a
branch of government. " ---- end of citation ------------

Post by n***@isp.com
EITHER confirm that the following is a fair summary of the basic
[F]acts (not arguments about the significance or not of those acts) that
provide the factual basis for the said "puzzle"

No: "fair" is a fairy-word. My '$22 < $30 puzzle' captures the essence.
It's a canonical version of the facts.

Post by n***@isp.com
OR, if the following omits what you would contend is a materially
relevant act, you correct or otherwise modify the following to provide

Read the '$22 < $30 puzzle', and if the answer doesn't immediately
jump-out-at-you, accept that there's a right/left-brain problem, and
try it on some other persons, perhaps school-kids.
BTW, you HAD already accepted the essential contention, since you had
resorted to "Oh well you're out of time". Is your old-age-memory
going LIKE MINE, or are you deliberately giving me the run around?

Post by n***@isp.com
In connection with a contractual relationship by which a

Does a contractual relationship require the parties to FREELY agree?
Is your 'obligation' to IRS "contractual"?
Is land rates-and-taxes and electricity/water supply, all from the
monopolistic, same entity [municipal authority] "a contractual
relationship"?

Post by n***@isp.com
seller-provider for a fee of certain services which you accepted and

How would you NOT accept the monopolistic supply of drinking water?

Post by n***@isp.com
used at what was to be a monthly base charge of $n
- the seller/plaintiff-to-be ignored a letter from you in which
you disputed the accuracy and related issues in its billing, stated
what you believed you owed and did not owe, and requested the seller's
acquiescence or that it at least provide you with what you would
consider a full accounting for charges you disputed and, instead, it
sued you for $z,

"instead" implies that a choice between alternatives was made.
I.e either acquiesce or sue.
In fact, at their time of receiving the 'request', the default judgment
had already been make - unbeknown to me.

Post by n***@isp.com
i.e., some multiple of $n

"some multiple of $n" is undefined. The essence is that $z
exceeded $n, at all relevant times.

Post by n***@isp.com
(with or without alleged
late fees or the like) which amounted to the sum it alleged was the
balance past due from you arising from your purchase and acceptance of
the alleged underlying services but which you did not pay as of the
time it commenced that lawsuit;

The counter-argument would be: "you pay what you admit owing"
and dispute the difference. I paid their wrong accounts repeatedly.
And as the appeal judge's transcript correctly observed <he wanted
to have his day in Court>.
BTW your input is very valuable to me: by analysing the "wrong
questions", I can see how the legal-mind has been misled,
apparently by training/habit. I appreciate one author's metaphor
"the calve paths of the mind".

By refusing the DJ on grounds that the amount owed HAD increased
to exceed the original "overclaim", one would have a guaranteed
scamming mechanism. I'd wait till you're away and unable to
answer-the-claim/summons and by the time you apply for set-aside
the correct amount owing would have grown to exceed my false claim.
Yes, I KNOW that for expedience, a normal terminating-transaction
debt needs to <adjust up to the date of hearing, so that the parties
can disengage>. We've discussed this all before. Can we please move
on the YOUR speciality: Timeliness and various subtle estopple
considerations?

Post by n***@isp.com
- You did not answer or otherwise defend that lawsuit before,
instead, the seller/plaintiff contended that your time to do so had
expired and it applied for a judgment against you on default in the
amount of $z;
- Exclusive of law authorized court costs and interest, if
any that the court also awarded, the court granted judgment against
you in the amount of $z;
- The service providing/accepting relationship continued
after the grant of that judgment and you thereafter paid some portion
of bills for those services during the post-judgment period;
- You moved to set aside that judgment;
- You attached to your moving affidavit a spreadsheet you
prepared in which you identified what you contended were the sums you
had paid and justifiably had not paid before commencement of the
lawsuit and also stated what you contended (and what the
plaintiff/judgment-creditor acknowledged in whole or in part) you had
paid during billing periods after the grand of the judgment;

No, the municipal-authority's lawer submitted said spreadsheet,
in his <answering affidavit>.
Before knowing about the default-judgment, I served that spreadsheet,
together with my letter requesting MA to either show error/s in the
spreadsheet OR accept the THEN calculated amount as correct.
Obviously the THEN calculated amount exceeded the claim, which
had been FIXED [by the ordinance which I didn't then know of, but I
could see from the accounts, which gave a separate FIXED "balance
handed over" (corresponding to the claim)].

Post by n***@isp.com
- The court denied your motion,

Motion to set-aside the default judgment.

Post by n***@isp.com
you appealed, and the
appeals court affirmed that denial;

No they didn't affirm the denial.
The WRITTEN grounds of the denial were based on assuming that
the amount admitted as owing AFTER the DJ exceeded the claim.
Which the appeal judges, implicitly accepted was an absurd
assumption: that 'time travels backwards'.
The appeal court's WRITTEN grounds show that they brought
a NEW argument, which I was denied a day-or-ten to rebut;
hence denying me due process. Their argument was that the
spreadsheet showed that by the time the summons [which I had
no knowledge of] was issued the amount owed exceeded the claim.

Re. denial of due process, by not allowing a few days to construct
a rebuttal: what do you think about the Paraguay impeachment?

Post by n***@isp.com
- A judicially stated material rationale for either or both
the trial court's ruling and/or the appeal court's affirmance was
(were) to the effect that (i.e., in substance if not in these exact
words) it was appropriate/lawful for the court(s) to take into account
the post-judgment sums you had paid and accordingly to conclude that,
applying some or all of those past-judgment payments, you had (even if
indirectly and so only in effect) paid more than $z (plus, if
relevant, costs and interest otherwise required by reason of the
judgment) so that (in substance if not in these exact words) you
rendered moot your claim that the judgment should be rescinded;
- You made a later/second motion to rescind the judgment on
the basis of what you argued was a new and different ground than that
you that or those you had asserted in support of your first motion,
but, on the stated primary ground (in words or in substance) that that
second motion was precluded on a "You get only one bite of the apple"
principle (i.e., a law of the case or res judicata or collateral
estoppel ground), the court denied that motion too, and you did not
succeed on appeal from that denial;

Good, now you're coming to the relevant material.
One should use a modular-method/compartmentalisation to
manage complexity.

Post by n***@isp.com
and, finally,

It's only final when it's final. What did you write about the
"Indian's land claim"? And when *I* wrote "Indian", I refered to
that thousand-million-plus people.

Post by n***@isp.com
- what I refer to above as $z is what you refer to in a
symbolic/abstract way as $22 and what I refer to as the all or a
portion of the post-judgment sums you paid which the court(s) took
into account in denying your first motion and/or appeal is what you
refer to abstractly/symbolically as $30.
- - - - - - - - - - - - - - - - - - - - - -

I selected $10 & $11 as correct & faulty, monthly account amounts
to get the SIMPLEST conceptual model, of how the amounts progress
over time, represented by 1-row-per-month. Try it.
Believe me, the mental tools that we use in science: rows of figures,
which represent the passage of time in the vertical axis, with the
corresponding state/s in the horizontal axis, can't be replaced by words.

The claim was FIXED [by ordinance 17] at month-2 at a wrong amount
of $22, which was less than the amount admitted as owing at all LATER
months: $30, $40, $50 ...

This little story has progressed to several different levels:
1= the plain simple law
2= why did they make mistakes ?
3= is the legislation defective ?
4= how to explain so that non-scientifically-persons can understand ?

Imagine trying to 'control music', with, instead of music-notation,
using the journo/lawer's tools of WORDS.

Interestingly, in the SA & UK rules, the section of "admission <of debt>"
is next to the <DJ set-aside>, which makes you wonder if 'their' mind
was pulled to the adjacent/inappropriate principle.

Importantly: "admission <of debt>" is a simplistic label for the principle:
NO_DISPUTE; which importantly means <don't waste Court resources>.
I.e. a different procedure is appropriate in the case of NO_DISPUTE.

Clearly in casu, there WAS a dispute at all relevant times: the amount
claimed by the billing was WRONG and increasingly so as time
progressed. And now: a decade later it has escalated into the national
municipal billing crisis.

Post by n***@isp.com
You not providing the above suggested confirmation or correction will
prevent further analysis because numerous of your earlier
postings/queries indicate strongly that, rather than you paying
attention to legal analysis, you will bicker about the accuracy of
another's interpretation of whatever it is you mean by the "central
puzzle" an understanding of which, however, you say is a necessary
predicate for analysis.

But you had already accepted that. That's why you reverted to
"you're out of time". Isn't it terrible how we forget as we age?
I've recently been reading files which answer questions which
I had received answers to, 8 years ago.

As a graduate in maths & ComptrSc, I'm not keen on RE-analysing
the logic of the arithmetic any more. In moving to another level:
[cognitive science] 'how to present a suitable mental model',
I came up with the $22<$30 puzzle.

There ARE subtle legal considerations at this stage, eg.
* TIMELY aspects: your speciality;
* Can the 'same level court' recognise that the first appeal was
wrong, in order to accept that <the second independant ground
need NOT have been brought in the first application, because the
first application was suficiently valid, WITHOUT extra grounds>.

And I've got a BIG as yet undisclosed card against "sweeping it
under the carpet", which is what they [and you] would like to do.

Thanks for the input.

[n***@isp.com]

.....
My '$22 < $30 puzzle' [formulation] captures
the essence [of what I complained about in
earlier postings in this and in other threads].

No, it does not. It merely is a shorthand way (i) to say that $22 is
a lesser monetary sum than $30 and (ii) to imply, but in ways you
neglect coherently to explain here and have substantially
mischaracterized in numerous other news group postings, you claim
that, to you, there is some sort of "puzzle" in connection with what
you and the courts did in the real life lawsuit to which you here only
obliquely refer.

. . . .
Does a contractual relationship require the parties
to FREELY agree?

Basically, Yes. For a classic bilateral contract. As you know. So
that you purport to ask again illustrates head-in-butting-position
perversity, not genuinely posed questioning.

Is your 'obligation' to IRS "contractual"?

No. However, and as you also know, some persons purport for some
(mostly rhetorical/philosophical/political) purposes in some parts of
the world claim it can be intellectually helpful to analogize the
"meta" elements of individuals relationships with governments as if
derived from some sort of (metaphorically stated) "social contract".*
---------------------------------------------------
* E.g., one of the founding documents of the U.S.A.
celebrated in that country this week, the Declaration
of Independence, says in part: "Governments are
instituted among Men, deriving their just powers from
the consent of the governed, - That whenever any
Form of Government becomes destructive of these
ends, it is the Right of the People to alter or to abolish
it, and to institute new Government . . . ." And, as it
happens, this and related declarations has been said
to have been influential in changes of the political
events in your country during the past +/- forty or
years or so.

Is land rates-and-taxes and electricity/water supply,
all from the monopolistic, same entity [municipal authority]
"a contractual relationship"?

Basically: Yes. But, as you also well-know by now, determining where,
when, how, and even whether, depends on assessment of the particular
relevant facts.

Before knowing about the default-judgment, I served th[e]
spreadsheet [I prepared] together with my letter requesting
[the supplier I claim not to know was then suing me] to either
show error/s in the spreadsheet OR accept the THEN
calculated amount as correct. Obviously the THEN calculated
amount exceeded the claim, which had been FIXED [by the
ordinance which I didn't then know of, but I could see from
the accounts, which gave a separ te FIXED "balance handed
over"

For someone -- that is, you -- who purports to honor "first
principles" or the like, you here again repeat what actually has been
your persistent VERY BASIC error factually, logically, and for all the
actually quite clear BASIC principles of law that applied when you
eventually made your motion for relief from the judgment . . . re.
which see further (and what, as between us, will be my last) comment
below.

This little story has progressed to several different
1= the plain simple law

You have misstated the actually most important principles of law
(including those more generally referred to as those of "due
process"), although they are comparatively simple to cite and explain
as they have been, correctly, by me and by any number of others over
the years.

2= why did they make mistakes ?

EVEN IF one posits (as I do) that there were some billing errors by
the plaintiff before the plaintiff sued and, perhaps, even afterwards,
the OVERWHELMINGLY PREDOMINANT and therefore essentially determinative
mistakes you have cited over the years have been your own, not those
of your adversaries or of the courts.

3= is the legislation defective ?

Your unilaterally asserted "puzzle[ment]" of the applicable
legislation (and judicial rulings construing/applying that
legislation) and, above all, of basic principles of law has been
defective.

4= how to explain so that non-scientifically-persons can
understand ?

Almost without exception, the responses to you I've seen over the
years demonstrate very clear understanding of the lawsuit to which you
refer including about the trial court and appellate rulings that
determined it. And while obviously inadvertent on your part, your
(purported) queries, joustings, and related obsessive follow-ups sadly
demonstrate that your pretenses about you being scientifically
educated and being able to think "scientifically" are widely off the
mark.

* * *
The claim [originally sued upon] was FIXED [by ordinance
17] at month-2 at a wrong amount of $22, which was less
$30, $40, $50 ...

And here again you express you quite fundamental misunderstanding,
which again in summary amounts to this:

- It not that the amount was "fixed" as you seem persistently but
profoundly incorrectly to assume for all time and/but, instead,
liquidated for the purposes of the plaintiff being entitled to sue.

- Whether or not it is true that you were aware when you did this
that you had been sued or that a default judgment against you had
already been granted, _your_ decision to have furnished the plaintiffs
attorneys with a "spreadsheet" you prepared which included sums you
said had been billed and sums you had paid for substantial periods
after the lawsuit was commenced and _your_ decision _how_ to frame
your motion that betrayed profound while also willful ignorance of
long established basic principles of law concerning a creditor's (and,
hence, also a court's) prerogatives in allocating payments in
variations, as applied to you, of a "running account" or "open
account" relationship.

- What became the, for you, more important legislative and
judicial principles when you finally (even if not as belated) chose to
move for relief from the default judgment, were the requirements, in
substance, whether you had demonstrated a basis in fact and in law for
the requested relief WHEN YOU MADE YOUR MOTION at which time the
courts were authorized to decide whether (explicitly or in effect) to
amend/supplement the claims sued upon.

* * *
And I've got a BIG as yet undisclosed card against "sweeping
it under the carpet", which is what they [and you] would like to
do.

Not that I care -- I do not -- but I believe that the first part of
this statement is almost certainly delusional. However, since you
narcissistically attribute me desires that I do not have because I do
not care in the slightest whether or not you hold the "card" to which
you typically so vaguely allude, I relatedly will not wait in
anticipation any further postings from you about these matters. And,
as noted, I certainly will not respond by news group posting or by
email to any further postings about or relating to the lawsuit in
question. But you of course remain free to continue to post (or is it
"troll"?) about these matters as you wish or as your obsessions drive
you.

Thanks for the input.