scholarly journals Throwing the Unlawful Detention Jurisprudence into Turmoil: A Critique of De Klerk V Minister of Police 2020 1 SACR 1 (CC)

2021 ◽  
Vol 24 ◽  
pp. 1-23
Author(s):  
Phindile Raymond Msaule
Keyword(s):  
Constitutional Court ◽  
One Stage ◽  
Per Se ◽  
Unlawful Conduct ◽  
Court Appearance

Before the judgement in De Klerk v Minister of Police 2020 1 SACR 1 (CC), (de Klerk), a plaintiff could claim damages for unlawful arrest and detention after the first appearance in court if the arresting (or the investigating) officer had conducted himself unlawfully in addition to the unlawful arrest. The conduct of the arresting (or investigating) officer had to be such that it influenced the prosecution and/or the court to deny the plaintiff bail. In De Klerk the majority of the Constitutional Court (CC), after assuming that factual causation had been proven, held the Minister of Police (Minister) liable for the unlawful arrest and detention of the plaintiff (including detention after the plaintiff had appeared in court). This was despite the CC’s having found that the conduct of the arresting officer after the appearance of the plaintiff in court had been lawful. The CC held that the arresting officer foresaw that by not releasing the plaintiff, the plaintiff would be remanded in detention – the unlawful conduct. The arresting officer was aware that the practice in the court where the plaintiff appeared was to remand all first appearance cases without considering the accused for release on bail. This note contends that the CC's decision does not bear scrutiny. The flaw in the CC's decision arose from its assumption that factual causation had been proven in this case. This faulty approach flowed from the CC's unconventional application of the "but-for" test. Instead of substituting the defendant's actual conduct for the hypothetical reasonable conduct, the CC held that it was the defendant's conduct per se that had caused the plaintiff harm. On this application of the "but-for" test, an arresting officer is unlikely to escape liability for an unlawful arrest and detention even if his or her conduct ceases to be unlawful at one stage or another. The Minister was held liable for the blameworthy conduct of the arresting officer up to the time of the plaintiff's appearance in court. The arresting officer played no role whatsoever after the appearance of the plaintiff in court. It is therefore absurd to hold that her conduct was the factual cause of the damage the plaintiff suffered. Ordinarily the Minister would not be held liable for detention after the court appearance. There was nothing extraordinary in the De Klerk case warranting the Minister’s being held delictually liable for the post-court-appearance detention. The plaintiff failed to prove that it was the conduct of the arresting officer that caused the plaintiff damage post the court appearance.

scholarly journals Thoughts on the principle of ne bis in idem in the light of administrative and criminal sanctions for the legal protection of animals

2021 ◽  
Vol 16 (31) ◽  
pp. 7-22
Author(s):  
Krisztina Bányai
Keyword(s):  
Animal Welfare ◽  
Legal Protection ◽  
Constitutional Court ◽  
The European Union ◽  
Criminal Sanctions ◽  
European Court ◽  
Ne Bis In Idem ◽  
Unlawful Conduct ◽  
Administrative Sanctions ◽  
Cruelty To Animals

According to the well-developed interpretation of the principle of the ne bis in idem in the case law of the Court of Justice of the European Union and the European Court of Human Rights, the same conduct cannot be the subject of two proceedings or santions with similar functions and purposes. In Hungary the Constitutional Court has interpreted the rules of the ne bis in idem in administrative and criminal procedure for animal welfare fine and sanctions for cruelty to animals in Decision 8/2017. (IV.18) AB and the legislator settled its rules in Act on administrative sanctions which came into effect from the 1st of January, 2021. The recent study through practical issues approaches how principle prevails, its problems and possible solutions in the field of unlawful conduct in animal welfare, in particular regarding the role of the prosecutor.

scholarly journals THE DUTY OF UTMOST GOOD FAITH IN ASSET-FORFEITURE JURISPRUDENCE – SOME LESSONS TO LEARN

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Nkululeko Christopher Ndzengu ◽  
John C von Bonde
Keyword(s):  
Relevant Information ◽  
Organised Crime ◽  
The State ◽  
Good Faith ◽  
Constitutional Court ◽  
Per Se ◽  
Utmost Good Faith ◽  
Asset Forfeiture ◽  
High Degree

The Constitutional Court has held that the provisions of the Prevention of Organised Crime Act 121 of 1998 that empower the State to apply ex parte for restraint and preservation orders regarding property involved in criminal activities do not per se violate the requirements of the audi alteram partem rule. However, the State still has to adhere to the normal procedural and other obligations imposed on applicants approaching courts for orders on an ex parte basis; one of these obligations is the duty of utmost good faith or uberrima fides. This article examines the application of this rule by SA courts. As respondents are diligent in seeking instances of nondisclosure of relevant information to warrant the application of the uberrima fides rule to their advantage, a high degree of openness and good faith is required from the State in order to avoid these ex parte orders being rescinded or discharged

Conditional (Contingent) Fees in the Russian Federation

2008 ◽  
Vol 33 (2) ◽  
pp. 205-222
Author(s):  
Andrey Medvedev
Keyword(s):  
Detailed Analysis ◽  
Russian Federation ◽  
Constitutional Court ◽  
Narrow Sense ◽  
Final Word ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Per Se ◽  
The Impact

AbstractIn this article, the author discusses contemporary Russian judicial practice concerning the legality of attorney's conditional fees. He starts with a brief overview of foreign practice and distinguishes various kinds of conditional fees. The author provides a classification of conditional fees, through the prism of which he evaluates judicial practice in Russia. He distinguishes and, in particular, contrasts the contingent (or contingency) fee from (with) the conditional fee per se (the conditional fee in the narrow sense). The main focus is on a landmark 2007 Decision of the RF Constitutional Court in which the Court ruled against conditional fees in Russia. The author provides a detailed analysis of the Decision. He supports a view which is in clear opposition to the Constitutional Court, finding the Decision facile, criticizing its motivation and questioning its feasibility. The author describes the claims submitted to the Court, the findings of the Court, and the conclusions reached by the Court. Furthermore, he considers the impact which the Decision may have on judicial practice. The author concludes by discussing the possible future of conditional fees in the Russian Federation and notes that the Decision of the RF Constitutional Court may not constitute the final word on the issue. He advocates further and more in-depth research on the nature of conditional fees.

scholarly journals THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 1)

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Carli Botma ◽  
Adriaan van der Walt
Keyword(s):  
Case Law ◽  
Constitutional Court ◽  
Labour Relations ◽  
Administrative Review ◽  
Per Se ◽  
Administrative Act ◽  
Constitutional Right ◽  
Arbitration Award ◽  
Administrative Justice

This article is published in two parts. In the first part (published in this edition of Obiter) the authors establish the general principles relating to administrative review and consider the different forms of review. Thereafter CCMA arbitration award reviews are considered. As is characteristic of special statutory reviews the Labour Relations Act, 1995 (“the LRA”) makes specific provision for the review of CCMA arbitration awards. The grounds of review are presented in such a manner that it has the effect of limiting the ambit. The administrative nature of CCMA arbitrations is considered. It is pointed out that the courts regard the CCMA as organ of state andthat the rendering of an arbitration award is considered as the commission of an administrative act that is subject to the constitutional imperatives of the administrative justice right of the Constitution. The authors also establish that the courts have not interpreted the restrictive scope of section 145 of the LRA as falling foul of the constitutional right to administrative justice. Rather, the courts have reasoned that, when reading section 145 in light of the constitutional right to administrative justice, the alleged misconduct, grossirregularity, exceeding of powers or impropriety as the case may be need only be measured against the constitutional imperatives of the administrative justice right in order to ensure constitutional consistency. So construed, an arbitration award would be reviewable if the reviewing court is able to conclude that the commissioner has committed misconduct or a gross irregularity or has exceeded his powers in terms of section 145(2) of the LRA because the decision is not justifiable in terms of the reasons given. The award would, however, not be reviewable only because it is perceived to be unjustifiable per se; the justifiability must be attributed to one or moreof the statutory grounds of review found in section 145(2) of the LRA. In Part 2 of the article the effect of the judgment of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd 2007 12 BLLR 1097 (CC) will be analysed as well as the application of the principles established in Sidumo in subsequent case law. Finally the reasonableness standard and private arbitration reviews will be considered. Part 2 will be published in the following edition of Obiter. 

Origin of Hepatic Nuclear Inclusion Bodies

1973 ◽  
Vol 31 ◽  
pp. 426-427
Author(s):  
F. G. Zaki ◽  
J. A. Greenlee ◽  
C. H. Keysser
Keyword(s):  
Inclusion Bodies ◽  
Storage Disease ◽  
Glycogen Storage ◽  
Nutritional Deficiencies ◽  
Nuclear Inclusion ◽  
Electron Microscopic ◽  
Human Liver Cells ◽  
Microscopic Studies ◽  
Per Se ◽  
Experimental Liver

Nuclear inclusion bodies seen in human liver cells may appear in light microscopy as deposits of fat or glycogen resulting from various diseases such as diabetes, hepatitis, cholestasis or glycogen storage disease. These deposits have been also encountered in experimental liver injury and in our animals subjected to nutritional deficiencies, drug intoxication and hepatocarcinogens. Sometimes these deposits fail to demonstrate the presence of fat or glycogen and show PAS negative reaction. Such deposits are considered as viral products.Electron microscopic studies of these nuclei revealed that such inclusion bodies were not products of the nucleus per se but were mere segments of endoplasmic reticulum trapped inside invaginating nuclei (Fig. 1-3).

The Eleventh Circuit Holds that Agreements in which Pharmaceutical Companies Pay Generic Companies Not to Compete May be Valid

2004 ◽  
Vol 32 (1) ◽  
pp. 181-184
Author(s):  
Amy Garrigues
Keyword(s):  
Pharmaceutical Companies ◽  
Court Decisions ◽  
Patent Holder ◽  
Trial Court ◽  
Court Of Appeals ◽  
The Us ◽  
Antitrust Laws ◽  
Per Se ◽  
Appeals Court ◽  
Two Sides

On September 15, 2003, the US. Court of Appeals for the Eleventh Circuit held that agreements between pharmaceutical and generic companies not to compete are not per se unlawful if these agreements do not expand the existing exclusionary right of a patent. The Valley DrugCo.v.Geneva Pharmaceuticals decision emphasizes that the nature of a patent gives the patent holder exclusive rights, and if an agreement merely confirms that exclusivity, then it is not per se unlawful. With this holding, the appeals court reversed the decision of the trial court, which held that agreements under which competitors are paid to stay out of the market are per se violations of the antitrust laws. An examination of the Valley Drugtrial and appeals court decisions sheds light on the two sides of an emerging legal debate concerning the validity of pay-not-to-compete agreements, and more broadly, on the appropriate balance between the seemingly competing interests of patent and antitrust laws.

Fusion and Fission Processes in Exocytosis: Possible Roles for Synexin and Osmotic Lysis in the Two Events

1980 ◽  
Vol 38 ◽  
pp. 594-597
Author(s):  
H.B. Pollard ◽  
C.E. Creutz ◽  
C.J. Pazoles ◽  
J.H. Scott
Keyword(s):  
Small Molecules ◽  
Chromaffin Cells ◽  
Adrenal Glands ◽  
General Concept ◽  
Extracellular Calcium ◽  
Large Protein ◽  
Granule Membrane ◽  
Osmotic Lysis ◽  
Per Se ◽  
Chemical Evidence

Exocytosis is a general concept describing secretion of enzymes, hormones and transmitters that are otherwise sequestered in intracellular granules. Chemical evidence for this concept was first gathered from studies on chromaffin cells in perfused adrenal glands, in which it was found that granule contents, including both large protein and small molecules such as adrenaline and ATP, were released together while the granule membrane was retained in the cell. A number of exhaustive reviews of this early work have been published and are summarized in Reference 1. The critical experiments demonstrating the importance of extracellular calcium for exocytosis per se were also first performed in this system (2,3), further indicating the substantial service given by chromaffin cells to those interested in secretory phenomena over the years.

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