Re. How does due process work?

[0***@neomail.co.za]

Our law in the English speaking world: N America India &
the other ex-colonies is all basically the same; originating
from english law. And the superficial differences should not
hide the common underlying principles and universally
applicable logic.

But apparently for expediency, law people don't [and eventually
apparently CAN'T] think from first principles. To save effort
they just match up familiar phrases with stereotypical scenarios.

So eg. if you've got a dispute with the bank about your bicycle
loan: where the bank claims you owe $10 and you can prove
that you owe only $5, and you write a letter to the bank:
"Re. your bicycle-loan-claim for $10: please check my
documents enclosed, which prove that I owe $100 house
mortgage + $5 bicycle-loan = $105 total; and accept $105
gold-sovereigns from my messenger, and close my account,
else indicate any error in my documents."

And when you apply for the default judgment rescission,
perhaps because the <procedure for admission of debt>
[and I notice that this applies also for the current UK rules]
in "next to the rules for setting aside a default judgment",
the clowns say you have no defence, because you admitted
owing more than the claim. $105 is more than $10.

You don't believe me ?
Voice recording equipment and certified transcripts and
certified records are marvelous. That's why an open press
is the cornerstone of a democracy.
------------------
When I read the 'rules for different countries/jurisdictions, they
all feel completely understandable, reasonable and consistent.

So when I mention HERE "founding affidavit" why can't the
English law-boys see that my term "founding affidavit"
relates directly to their rule:
(Part 22 requires particulars of claim to be verified by a
statement of truth) ?

I tried to start from the must basic principle of "due process",
to see what terms THEY currently use for the key concepts.
But I can't get any sense, so I'll just use MY terms.
--------------------
Please comment on:
How would the highest appeal Court in YOUR jurisdiction act?

Scenario 1.
The procedure [equivalent to the UK "Part 8 procedure"]
called an APPLICATION [as opposed to an ACTION] is
simpler/cheaper and the decision is based on the
"founding affidavit" , "answering affidavit"
and possibly a further [from the applicant] "replying
affidavit", and even, rarely, permission from the court
for further affidavits, to clarify the FACTS.

The record/transcript shows that after the respondent had
<done 10 pages of speaking> before the <Court/judge>
invited the pro-se' applicant to speak, the court said <when did
you file your replying affidavit ? We'll have to adjourn, for me
to see if I can find it>. Ie. he hadn't received/read the VITAL
affidavit, refuting the central fallacy of the answering affidavit;
and after locating it, hastily decided, based on the argument
of the answering affidavit.

Scenario 2.
In the same matter as 1 above, the Appeal judges effectively
acknowledge that the argument of the answering affidavit
which was refuted in the replying affidavit, which the trial
court had not accessed nor read before the hearing, was
absurd [putting cause AFTER effect] by introducing THEIR OWN
[Appeal judge's : mero moto] new/not-in-the-record,
argument which was also invalid.
1. In an adversarial system, it is not for the court to introduce
their own argument.
2. By throwing a new argument at the pro se' party
[standing up] they denied the appellant due process,
opportunity to disprove their argument.

Scenario 3.
At a sheriff sale/auction it was witnessed that the
land/house which was auctioned, was bid far above
market price, so that after the genuine bidders were
driven away, the sale was 'cancelled and said to be
<rectifyable - because of a mistake> and then the
land/house was re-auctioned to the scammers with
no competitive bid.
I'm speculating that the existing law allows this,

because

Scenario 4
sub-economic [government subsidised] houses for poor
ignorant people were noted to be being 'executed' by
shark lawers. A 'strange' lawer took it upon himself [he
mentioned some thing about "giving the profession a bad
name"] to ride the matter up to the Constitutional Court.
Here's the punch-line: the con-court <amended the
rule which dated from the 1940s colonial days AFAIK, which
allowed the court *CLERK* to authorise, confiscation of
people's housing for trivial debts. If such bird-brain legislation
has existed for at least the last 2 generations, what else is there?

Scenario 5
The pro se applicant of scenario 1, found an attorney with
specialised municipal law experience, who discovered a new
independent cause-of-action to set aside the default judgment.
The mandatory arrears notice was fatally flawed, which a recent
similar case has confirmed at all 3 levels up to the Supreme Court
of Appeal. [The incompetent and corrupt municipal officials have
THEIR mistakes, defended by the tax payer's money. Google:
'south africa'+'municipal billing crisis'].
The smart/tricky municipal lawer arranged for his answering
affidavit to be served, at the end of the day, before the matter was
set down to be heard, in the morning.
Consequently, my attorney, who got knowledge of the vital
document by phone and had it faxed to a nearby office,
was not able to prepare a rebuttal.
Given that, in an "application procedure" all arguments
must be in the pleadings [on the papers] is the above described
trick possible in your/civilised jurisdiction. I'll have to analyse
the rules in detail, to see if my attorney was negligent, but I
suspect the rules are defective.

Scenario 6 ...is too complicated for now.

== Thanks for any input.

[Martin]

Our law in the English speaking world: N America India&
the other ex-colonies is all basically the same; originating
from english law. And the superficial differences should not
hide the common underlying principles and universally
applicable logic.

blah, blah who gives a fuck, piss off spammer

[n***@isp.com]

On 3 Jun 2012, in what even news group readers who recall only a small
sampling of his many earlier law related postings will note is a
thinly disguised while also substantially misleading feigned analogy
with a lawsuit in which he was an unsuccessful plaintiff/appellant,

Post by 0***@neomail.co.za
Our law in the English speaking world: N America India
& the other ex-colonies [and in So. Africa] is all basically
the same; originating from english law. * * *
But apparently for expediency, law people don't (and
eventually apparently CAN'T) think from first principles.
So [suppose] you've got a dispute with the bank about
your bicycle loan: where the bank claims you owe $10 and
you can prove that you owe only $5, and you write a letter
to the bank [that so claims, and which also clearly itemizes
each element of acknowledged debt to the bank but the
bank disagrees and later sues anyway] . . . .

You have never cited any "first principle" -- or, for that matter, any
statute, judicial ruling, or other even arguably authoritative legal
text that expresses any principle of law at all -- to the effect among
other things that might be mentioned:
- that requires the bank to respond at all let alone what
significance shall and need not be accorded a silent or expressed
disagreement with the customer's such letter if the bank chooses
directly to sue the customer without first responding to such a
letter; or
- that if the alleged creditor did respond before suing but
in a manner that the customer as alleged debtor believed to be
mistaken or especially if outright falsely, "first principles" of law
(not to dwell on those of self-interested practicality) signal to the
customer that he may and should decide, as you said you did, merely to
sit back and do nothing more including by not defending a lawsuit by
the bank for many years after learning he had been sued and until
still more years after the grant against him of a judgment he had
invited by way of his deliberate long time default during which period
he continued to accept but not to pay for goods or services provided
by the same creditor.

Post by 0***@neomail.co.za
And when you apply for the default judgment rescission,
perhaps because the <procedure for admission of debt>
. . . (in "next to the rules for setting aside a default
judgment"), the clowns say you have no defence, because
you admitted owing more than the claim.

Phrased this way, this hypothetical example is very far from what you
said actually occurred in the lawsuit on which you again base your
here repeated complaints.

In the (partly <snipped> for space reasons) example you posit above,
the debtor you hypothesize stated fact specifically and also logically
that and how, in particular, he owed what he did and did not owe all
that the creditor claimed.

But one of the few things you made abundantly clear in numerous
earlier postings about the lawsuit against you that evidently
continues obsessively to rankle you is that you based your belated
motion for relief from the default judgment you had deliberately
invited on what a spreadsheet you prepared which, however, was
confused while it also contained admissions that you owed the
plaintiff more than the sum for which it had sued and which you made
all the more confusing by an incoherent (and, not incidentally, not
rule compliant) supporting affidavit so that it was you, not your
adversaries, who virtually compelled the court to rule against you
because, in several different ways that were warranted by long
established principles of law, you did admit owing more than the claim
sued upon.

That you were ignorant of this at the time and, worse, claim to
continue to be ignorant of this reality to this day is a
self-indictment, not an indictment of "law people" even if (as of
course if regrettably sometimes is so) some "law people" are not as
knowledgeable or effective as they should be yet claim to be.

Post by 0***@neomail.co.za
You don't believe me ?

No. Because the facts about the lawsuit to which you actually refer
as you posted them earlier require a "No" answer if one is to be
factually and law relatedly accurate.

Post by 0***@neomail.co.za
I tried to start from the must basic principle of "due
process", to see what terms THEY currently use for the
key concepts.
But I can't get any sense, so I'll just use MY terms.

Yes, exactly: You here again make clear that "first principles" means
to you only those you define unilaterally as bolstered (you presume)
by a self-arrogated demand that YOUR terms and not established
principles of law must govern disputes and lawsuits to which you are a
party.

Post by 0***@neomail.co.za
[Scenario . . .]
The procedure [equivalent to the UK "Part 8 procedure"]
called an APPLICATION [as opposed to an ACTION] is
simpler/cheaper and the decision is based on the
"founding affidavit" , "answering affidavit"
and possibly a further [from the applicant] "replying
affidavit", and even, rarely, permission from the court
for further affidavits, to clarify the FACTS.

This is and was so in your country (So. Africa), too. However, note
the question begging nature of your here stated summary -- namely,
that your reference to the movant's "founding affidavit" neglects to
make clear that what you characterized earlier as your such affidavit
was at once almost entirely incoherent except to the extent that it
(when read along with your submitted spreadsheet) it admitted owing
(indeed: more than) plaintiff's claims for which it sued.

Post by 0***@neomail.co.za
In the same matter (to which I refer), the Appeal judges
effectively acknowledge that the argument of the answering
affidavit which was refuted in the replying affidavit, which
the trial court had not accessed nor read before the hearing,
was absurd . . . .

You here use the terms "effectively acknowledge" as if a synonym for
"did not acknowledge" and "absurd" as if a synonym for "persuasive in
conformity with long established principles of law".

Post by 0***@neomail.co.za
[The appeals judges acted 'invalidly'] by introducing
THEIR OWN . . . new/not-in-the-record, argument
which was also invalid . . . . [but i]n an adversarial
system, it is not for the court to introduce their own
argument.

Putting this as charitably as possible, among the reasons this is
mistaken is this: You here again neglect to cite any "first" (or
other) principle of law to the effect that where, as you earlier said
was so in the actual lawsuit to which you refer, the parties have each
submitted their respective version of the operative facts and legal
arguments, the court is not permitted to apply the law to the parties'
factual and related claims to make a determination even if in so doing
a majority of the judges rationalize their ruling in ways different
from those advanced by either (or both) parties.

You might have had a legitimate basis for complaint if you had shown
that/how the reasoning you say the trial court or appellate judges
"introduce[d on] their own" violated basic principles of due process
in some prejudice causing manner, but you have never done this in
other than a merely sloganeering/conclusory (and invective laden)
manner.

Post by 0***@neomail.co.za
By throwing a new argument at the pro se' party
(standing up) they denied the appellant due process,
opportunity to disprove their argument.

While some degree of flexibility generally is accorded to pro se
parties, a person who, like you, chooses to proceed unrepresented by
an attorney nonetheless is properly required and therefore
legitimately presumed to be well prepared. This indeed is especially
so in a garden-variety and therefore substantially simple debt
collection case like the one to which you refer.

Post by 0***@neomail.co.za
[A later related Scenario]
At a sheriff sale/auction it was witnessed that the
land/house which was auctioned, was bid far above
market price, so that after the genuine bidders were
driven away, the sale was 'cancelled and said to be
<rectifyable - because of a mistake> and then the
land/house was re-auctioned to the scammers with
no competitive bid.
I'm speculating that the existing law allows this,

Liberally construing this summary by positing that the facts of the
post-judgment enforcement proceedings in the lawsuit against you to be
as you here suggest, the law of your country (as in British law
influenced countries elsewhere) makes available to a judgment debtor
any number of remedies -- in other words, does not allow this -- if
the debtor does not fail as you imply you chose to do to avail himself
of them.

Post by 0***@neomail.co.za
[Another Scenario]
The pro se applicant of scenario . . . found an attorney with
specialised municipal law experience, who discovered a new
i ndependent cause-of-action to set aside the default judgment.

Your earlier postings demonstrated that this was not so in the lawsuit
to which you were a party on which you purport to base your present
posting. Those postings showed that what he (said to you that) he
"found" merely was a way to try merely cosmetically to re-label as if
"a new" ground what, in actuality, were claims/grounds you raised by
your initial correctly denied motion so that, as the trial judge and
later the appellate judges correctly ruled in that lawsuit, you were
barred by principles (actually something very close to "first
principles") of res judicata and collateral estoppel from trying to
relitigate already decided claims and issues.

Post by 0***@neomail.co.za
* * *
== Thanks for any input.

[n***@isp.com]

- P.S. typographical error correction -

[see original posting for full rhetorical query/'plaint]

I responded earlier by typing in part mistakenly
that, though without making this clear, the poster
refers to a lawsuit in which "he was an unsuccessful
"plaintiff/appellant" although - as the context of
my response read in full should have made and I
hope did make clear, and as the fact - he was the
unsuccessful defendant/appellant in that litigation.

(This P.S. is posted in the interest of accuracy
and also to anticipate and moot the original poster's
more than occasional reliance on vacuous debater's
posturing replies.)

Our law in the English speaking world: N America India &
the other ex-colonies is all basically the same; originating
from english law. And the superficial differences should not
hide the common underlying principles and universally
applicable logic.
But apparently for expediency, law people don't [and eventually
apparently CAN'T] think from first principles. To save effort
they just match up familiar phrases with stereotypical scenarios.
So eg. if you've got a dispute with the bank about your bicycle
loan: where the bank claims you owe $10 and you can prove
"Re. your bicycle-loan-claim for $10: please check my
documents enclosed, which prove that I owe $100 house
mortgage + $5 bicycle-loan = $105 total; and accept $105
gold-sovereigns from my messenger, and close my account,
else indicate any error in my documents."
And when you apply for the default judgment rescission,
perhaps because the <procedure for admission of debt>
[and I notice that this applies also for the current UK rules]
in "next to the rules for setting aside a default judgment",
the clowns say you have no defence, because you admitted
owing more than the claim. $105 is more than $10.
You don't believe me ?
Voice recording equipment and certified transcripts and
certified records are marvelous. That's why an open press
is the cornerstone of a democracy.
------------------
When I read the 'rules for different countries/jurisdictions, they
all feel completely understandable, reasonable and consistent.
So when I mention HERE "founding affidavit" why can't the
English law-boys see that my term "founding affidavit"
(Part 22 requires particulars of claim to be verified by a
statement of truth) ?
I tried to start from the must basic principle of "due process",
to see what terms THEY currently use for the key concepts.
But I can't get any sense, so I'll just use MY terms.
--------------------
How would the highest appeal Court in YOUR jurisdiction act?
Scenario 1.
The procedure [equivalent to the UK "Part 8 procedure"]
called an APPLICATION [as opposed to an ACTION] is
simpler/cheaper and the decision is based on the
"founding affidavit" , "answering affidavit"
and possibly a further [from the applicant] "replying
affidavit", and even, rarely, permission from the court
for further affidavits, to clarify the FACTS.
The record/transcript shows that after the respondent had
<done 10 pages of speaking> before the <Court/judge>
invited the pro-se' applicant to speak, the court said <when did
you file your replying affidavit ? We'll have to adjourn, for me
to see if I can find it>. Ie. he hadn't received/read the VITAL
affidavit, refuting the central fallacy of the answering affidavit;
and after locating it, hastily decided, based on the argument
of the answering affidavit.
Scenario 2.
In the same matter as 1 above, the Appeal judges effectively
acknowledge that the argument of the answering affidavit
which was refuted in the replying affidavit, which the trial
court had not accessed nor read before the hearing, was
absurd [putting cause AFTER effect] by introducing THEIR OWN
[Appeal judge's : mero moto] new/not-in-the-record,
argument which was also invalid.
1. In an adversarial system, it is not for the court to introduce
their own argument.
2. By throwing a new argument at the pro se' party
[standing up] they denied the appellant due process,
opportunity to disprove their argument.
Scenario 3.
At a sheriff sale/auction it was witnessed that the
land/house which was auctioned, was bid far above
market price, so that after the genuine bidders were
driven away, the sale was 'cancelled and said to be
<rectifyable - because of a mistake> and then the
land/house was re-auctioned to the scammers with
no competitive bid.
I'm speculating that the existing law allows this,
because
Scenario 4
sub-economic [government subsidised] houses for poor
ignorant people were noted to be being 'executed' by
shark lawers. A 'strange' lawer took it upon himself [he
mentioned some thing about "giving the profession a bad
name"] to ride the matter up to the Constitutional Court.
Here's the punch-line: the con-court <amended the
rule which dated from the 1940s colonial days AFAIK, which
allowed the court *CLERK* to authorise, confiscation of
people's housing for trivial debts. If such bird-brain legislation
has existed for at least the last 2 generations, what else is there?
Scenario 5
The pro se applicant of scenario 1, found an attorney with
specialised municipal law experience, who discovered a new
independent cause-of-action to set aside the default judgment.
The mandatory arrears notice was fatally flawed, which a recent
similar case has confirmed at all 3 levels up to the Supreme Court
of Appeal. [The incompetent and corrupt municipal officials have
'south africa'+'municipal billing crisis'].
The smart/tricky municipal lawer arranged for his answering
affidavit to be served, at the end of the day, before the matter was
set down to be heard, in the morning.
Consequently, my attorney, who got knowledge of the vital
document by phone and had it faxed to a nearby office,
was not able to prepare a rebuttal.
Given that, in an "application procedure" all arguments
must be in the pleadings [on the papers] is the above described
trick possible in your/civilised jurisdiction. I'll have to analyse
the rules in detail, to see if my attorney was negligent, but I
suspect the rules are defective.
Scenario 6 ...is too complicated for now.
== Thanks for any input.

[McGyver]

Post by 0***@neomail.co.za
Our law in the English speaking world: N America India &
the other ex-colonies

<snip>

All of your questions and views concering your case were correctly
answered in 1999 when you first told us the facts in another newsgroup.
But you wouldn't listen and wouldn't learn. You have apparently made
a hobby of posting crackpot theories about the law pertaining to a case
that was correctly decided against you. There is no point in replying
to your posts in a responsive way because you still won't listen and
won't learn.

I wish you continued enjoyment of your hobby.

McGyver

[A***@gmail.com]

Post by McGyver

Post by 0***@neomail.co.za
Our law in the English speaking world: N America India &
the other ex-colonies

<snip>
All of your questions and views concering your case were correctly
answered in 1999 when you first told us the facts in another newsgroup.
But you wouldn't listen and wouldn't learn. You have apparently made
a hobby of posting crackpot theories about the law pertaining to a case
that was correctly decided against you. There is no point in replying
to your posts in a responsive way because you still won't listen and
won't learn.
I wish you continued enjoyment of your hobby.
McGyver

It would be more convincing to your audience if you did less ad hominem
and rather contended or rebutted some theoretical LAW, eg.:
=A/THE basic principle of justice is that the accused/respondent must
must have an apportunity to defend himself.
=from which it follows that the accused must be given an unambigious
charge, to defend;
=and that the accused must be allowed sufficient/reasonable time to
prepare his rebuttal.
=from which it follows that appeal judges [who are affronted by a pro se
who shows contempt for the 'new revolutionary guvmint which affirmatively
appointed them'] who change the charge are acting unjustly [and stupidly,
by apparently assuming that the victim won't bother to pay for the certified
transcript/record which will prove their injustice/incompetence].

Of course we know that it's hatefull heresy for citizens to pro se.
There were generations of wars and masacres in the old world
when citizens thought they could by-pass the priesthood.