scholarly journals STATE LIABILITY VIS-À-VIS VICTIMS OF CRIME IN POST-1994 SOUTH AFRICAN CASE LAW – SOMETHING NEW OR A REINVENTED WHEEL?

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
John C von Bonde
Keyword(s):  
Public Policy ◽  
South African ◽  
Case Law ◽  
The State ◽  
Legal Remedy ◽  
Victims Of Crime ◽  
Failure To Protect ◽  
State Liability ◽  
Fresh Impetus ◽  
Law Of Delict

Since 1994 South African courts have dealt with numerous cases where victims of crime have sued the State for its failure to protect them from criminal violation. This article explores these cases in order to ascertain the juristic nature of this liability and the criteria applied in ascertaining whether said liability exists under given circumstances. The author concludes that the legal remedy granted victims is based on the normal rules of the law of delict. Despite the constant reference by judges to constitutional imperatives, the matter is guided by the normal delictual criteria of reasonableness and public policy which, granted, have to be ascertained in deference to constitutional norms. The essential test has thus not changed since to the inception of the Constitution. Nevertheless, it appears that the courts have drawn fresh impetus from the Constitution in granting the claim of the victim of crime. South African courts have thus far shown opposition to the granting of punitive or constitutional damages to victims of crime though the possibility of the granting thereof in future has not been ruled out unequivocally.

Continued State Liability for Police Inaction in Assisting Victims of Domestic Violence: A Reflection on the Implementation of South Africa's Domestic Violence Legislation

2019 ◽  
Vol 63 (1) ◽  
pp. 53-77 ◽  
Author(s):  
Amanda Spies
Keyword(s):  
Domestic Violence ◽  
South African ◽  
Violence Against Women ◽  
The Social ◽  
Women's Lives ◽  
Failure To Protect ◽  
State Liability ◽  
Domestic Violence Legislation ◽  
Legal Understanding ◽  
The Impact

AbstractNow that it has been in operation for 20 years, it is necessary to reflect on the impact the South African Domestic Violence Act has had on women's lives. This article analyses this key legislation and the police's duty to ensure its proper implementation. It focuses on the reports of the Independent Complaints Directorate and Civilian Secretariat of Police, the bodies responsible for measuring police compliance with the act. The reports identify serious transgressions, highlighting the police's perception that domestic violence is a private affair with which it should not interfere. This perception plays a particularly subtle and destructive role in legitimizing, supporting and permitting violence against women. In focusing on key court decisions in which the state (police) was held financially accountable for the failure to protect women against violence, the author highlights the importance of challenging the social and legal understanding of women's experiences with violence in promoting a system that takes account of those experiences.

scholarly journals Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?

2017 ◽  
Vol 86 (4) ◽  
pp. 427-469 ◽  
Author(s):  
Vassilis P. Tzevelekos ◽  
Elena Katselli Proukaki
Keyword(s):  
Human Rights ◽  
The State ◽  
Due Diligence ◽  
Duty To Protect ◽  
Failure To Protect ◽  
State Liability ◽  
Positive Effect ◽  
High Seas

Although migration is a transnational phenomenon involving a plurality of states, the state of departure is often unwilling/unable to offer protection. Receiving/transit states can refrain from engaging with the problem until migrants have already entered their territory. With high seas, this can result in the deaths of people taking the risk of travelling to a new place. The article argues that states have a duty to offer (some) protection even when migrants are not in their territory, based on human rights’ positive effect and the principle of due diligence. Because of the transnational nature of migration, all involved states have the responsibility to offer protection. This may lead to concurrent state liability for failure to protect. The duty to protect may extend to the high seas, even when the traditional links for the establishment of jurisdiction are absent. The duty is not unlimited, it needs to prevail over other considerations.

scholarly journals To Serve and Protect Whom? Proximity in Cases of Police Failure to Protect

2016 ◽  
Author(s):  
Erika Chamberlain
Keyword(s):  
Case Law ◽  
Duty Of Care ◽  
Special Relationship ◽  
Victims Of Crime ◽  
Failure To Protect ◽  
The Relationship ◽  
Shed Light

This article examines the duty of care owed by police to potential victims of crime, focusingspecifically on the issue of proximity. The author surveys both Canadian and UK cases inorder to examine the factors that potentially give rise to a special relationship in thesecircumstances, and compares the Canadian courts’ more plaintiff-friendly approach to theEnglish courts’ persistent refusal to recognize proximity in the relationship between thepolice and victims of crime. The case law is then analyzed in order to shed light on the utilityand content of the proximity requirement for the duty of care, taking into consideration thefactual context, statutory framework, and policy considerations.

Road Traffic Nuisance in Slovenia: State Liability for Non-pecuniary Damage

2018 ◽  
Vol 43 (2) ◽  
pp. 174-196
Author(s):  
Damjan Možina
Keyword(s):  
Road Traffic ◽  
Case Law ◽  
The State ◽  
Protection Measures ◽  
Limit Values ◽  
The Public ◽  
Healthy Environment ◽  
State Liability ◽  
Civil Courts ◽  
Fair Balance

This paper presents and critically analyses the case law of the Slovenian courts with regard to mass individual claims against the state due to nuisance from public roads and railroads. The courts have largely upheld these claims. In awarding monetary compensation for non-pecuniary loss, they have considered the fundamental right to a healthy environment to be a personality right. Moreover, they have held that the state is under a guarantee-like obligation towards the population in that noise arising from public roads and railways will not exceed the limit levels set by the Regulation on Limit Values of Environmental Noise Indicators. As a consequence, new mass claims are being filed, exposing the state to considerable liability. The author considers the approach taken by the civil courts in Slovenia to be misguided on several levels. A fair balance between should be sought public and individual interests. Upholding claims in full by individuals who did nothing to mitigate noise is inappropriate. The problem would be better dealt with by way of regulating noise protection; compensation by way of analogy to (partial) expropriation in the public interest should only be sought if noise protection measures are ineffective or disproportionate.

scholarly journals SEPARATION OF POWERS, CHECKS AND BALANCES AND JUDICIAL EXERCISE OF SELF- RESTRAINT: AN ANALYSIS OF CASE LAW

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Magabe T Thabo ◽  
Kola O Odeku
Keyword(s):  
South Africa ◽  
South African ◽  
Separation Of Powers ◽  
State Power ◽  
Case Law ◽  
The State ◽  
The Other ◽  
Judicial Power ◽  
Checks And Balances ◽  
The Republic

The Constitution of the Republic of South Africa, 1996 creates a system in which there is a separation of the powers exercised by the different branches of the State. It also creates a system of checks and balances. The exercise of a power by one arm of state is checked by another to ensure that there is no abuse of state power. Organs of state ought to respect each other and the powers allocated to them by the Constitution. To this end, no organ of state should encroach upon the domain of the other organs. However, the courts wield enormous power because they are the ultimate guardians and custodians of the Constitution in South Africa. Courts have the power to declare any law or conduct unconstitutional. Where decisions have been taken by other arms of the State on matters falling within their exclusive domain and such decisions violate the Constitution, courts have a duty to intervene in order to make organs of state act within constitutional bounds. However, courts should not be overzealous and should not encroach upon the powers of the other arms of the State when exercising their judicial power and authority. Against this backdrop, this article analyses how the South African courts have cautioned themselves to exercise self-restraint in order not to usurp or encroach upon the powers of the other arms of the State while exercising their judicial authority and power.

scholarly journals Interpretation of the «Public Policy» Category in Recent Judicial Practice

2021 ◽  
pp. 30-42
Author(s):  
Ivan KOSTIASHKIN ◽  
Olena CHERNIAK
Keyword(s):  
Public Policy ◽  
Case Law ◽  
The State ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
Judicial Practice ◽  
Recognition And Enforcement ◽  
Principles Of Justice ◽  
Definition Of

The article studies the concept of «public policy», presents doctrinal definitions of public policy, as well as definitions used in judicial practice, in particular in the decisions of the Supreme Court. It is established that the Ukrainian legislation does not contain a definition of «public policy», but from the analysis of case law it can be concluded that the public policy of any country includes the fundamental principles and principles of justice, morality, state system, political system and economic security, which the state wishes to protect, which means «public policy» is a broad and abstract concept. At the same time, such a position of the legislator, given the case law cited in the article, is justified and reasoned. It is analyzed that the Civil Code of Ukraine lists the grounds on which the transaction can be considered as violating public policy, at the same time, the analysis of case law shows that the category of public policy does not apply to any legal relationship in the state, but only on the essential foundations of law and order. The article also analyzes that the recognition or enforcement of the decisions of an international commercial arbitral tribunal may be denied if the court finds that the recognition and enforcement of this arbitral award is contrary to public policy of Ukraine, as an example listed court cases in which the enforcement of arbitral awards was refused due to a violation of public policy. In view of the above, it is proved in the article that the definition and understanding of the category of public policy is important in recognizing and bringing to the enforcement of international commercial arbitration courts decisions, as well as recognition of transactions as such that violates the public policy, which leads to insignificance of such transactions. It is summarized that today in Ukraine there is no normative definition of the concept of «public policy», and from the analysis of judicial practice we can conclude that judges interpret the concept of «public policy» quite broadly and abstractly. However, given that quite often cases of recognition of a transaction as contrary to public policy (invalid transaction), as well as the recognition and enforcement of international commercial arbitration and foreign courts judgments are «technical» cases brought in order to avoid the liability of a party against whom the decision was made, such an interpretation of the concept of «public policy» gives judges the opportunity to fully investigate, whether transactions or decisions in force violates public policy or the fundamental principles of justice and fairness of the state, without a statutory restriction on the concept of «public policy».

scholarly journals THE EFFECT OF AVOIDING THE FNB METHODOLOGY IN SECTION 25 DISPUTES

Obiter ◽  
2019 ◽  
Vol 40 (1) ◽  
Author(s):  
BV Slade
Keyword(s):  
South African ◽  
Case Law ◽  
The State ◽  
Constitutional Court ◽  
Starting Point ◽  
National Bank ◽  
The Difference

In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance (FNB), the Constitutional Court set out a particular methodology with regard to the adjudication of section 25 disputes. In terms of this methodology, all expropriations in terms of section 25(2) must satisfy the requirements for a valid deprivation in terms of section 25(1). Therefore, the starting point of any constitutional property dispute is section 25(1). However, subsequent case law shows that the methodology proposed by the court is not consistently followed. In cases where the State formally expropriates property, courts customarily ignore the FNB methodology. In this article, it is argued that the avoidance of the FNB methodology in these cases is justifiable.It has also become clear recently that the courts will on occasion forgo the methodology proposed in FNB even in cases where there was no formal expropriation procedure. In this article, the effect of avoiding the FNB methodology in cases where there was no formal expropriation procedure is considered. It is argued that the avoidance of the FNB methodology in these cases has two interrelated effects. Firstly, parties are free to choose whether to rely on section 25(1) or section 25(2). Litigants are therefore, in theory, free to rely on section 25(2) directly. This makes it possible for litigants to claim compensation in terms of section 25(2), even if no formal expropriation procedure was adopted. Secondly, since litigants can decide whether to rely on section 25(1) or section 25(2), the difference between deprivation and expropriation becomes an important initial consideration, although not a simple one. In this article, it is argued that apart from state acquisition, the authority on which the State relies to effect an imposition on property is an important element in distinguishing between deprivation and expropriation.

An Introduction to the Special Issue on Energy and the Environment

Commonwealth ◽  
2017 ◽  
Vol 19 (1) ◽  
Author(s):  
Christopher Borick
Keyword(s):  
Public Policy ◽  
The State ◽  
Special Issue

“An Introduction to the Special to the Special Issue on Energy and the Environment” provides an overview of the state of the literature relating to Pennsylvania in these areas of public policy. It then introduces each of the articles in this issue of the journal. 

Victim Participation in Parole Proceedings in South Africa

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Jamil Mujuzi
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Prison Inmate ◽  
Parole Board ◽  
Victims Of Crime ◽  
The Right

South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

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