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a high degree of openness and good faith is required from the State in order to avoid these ex parte orders being rescinded or discharged

scholarly journals CASE NOTE: Illegal sales of alcohol and asset forfeiture

2016 ◽  
Author(s):  
Karabo Ngidi
Keyword(s):  
South Africa ◽  
Organised Crime ◽  
Case Note ◽  
Constitutional Court ◽  
High Court ◽  
Legal Limit ◽  
Asset Forfeiture ◽  
National Director ◽  
Business As Usual ◽  
The Impact

The Constitutional Court recently confirmed an order for the forfeiture of a house from which an unlawful shebeen had been run for years (Van der Burg and Another v National Director of Public Prosecutions).In deciding whether to confirm the order of the full bench of  the High Court, Justice van der Westhuizen, writing for a unanimous court, addressed the following questions: whether the house was an instrumentality of an offence; whether the illegal sale of alcohol is an organised crime; the proportionality of the crime to the forfeiture under the Prevention of Organised Crime Act 121 of 1998 (the POCA); as well as the impact of the forfeiture on the rights of the children that lived in the house. This judgment comes at a time where issues such as the proposal for the reduction of the legal limit of alcohol for drivers to 0%2 are topical, and seems to point to a tougher stance towards the sale and consumption of alcohol in South Africa. The judgment may therefore be seen as a warning that the illegal sale of alcohol and running of a shebeen will no longer be seen as business as usual in cases where the seller does not heed the call to desist such business.

scholarly journals Theorising Asset Forfeiture in Ireland

2007 ◽  
Vol 71 (5) ◽  
pp. 441-460 ◽  
Author(s):  
Liz Campbell
Keyword(s):  
Legal System ◽  
Due Process ◽  
Crime Control ◽  
Theoretical Perspective ◽  
Organised Crime ◽  
The State ◽  
Criminal Process ◽  
Regulatory Aspects ◽  
Legislative Framework ◽  
Asset Forfeiture

Various alterations to the Irish legal system have been effected in a bid to counter organised crime, the most radical of which was the introduction of civil forfeiture in 1996. This article examines the forfeiture process carried out by the Criminal Assets Bureau and seeks to analyse it from a theoretical perspective. Civil forfeiture may be regarded as embodying a move away from due process towards crime control, given the avoidance of traditional protections in the criminal process by its location in the civil realm. Moreover, the process may be characterised as an ‘apersonal means of tackling crime’, in which emphasis is laid on the non-moral and regulatory aspects of the law. This article further contends that civil forfeiture represents an adaptation to reality in which the State reconfigures the legislative framework so as to facilitate more readily the suppression of organised crime.

scholarly journals Mutuality and solidarity: assessing risks and sharing losses

1997 ◽  
Vol 352 (1357) ◽  
pp. 1039-1044 ◽  
Author(s):  
David Wilkie
Keyword(s):  
Genetic Information ◽  
Social Insurance ◽  
Private Insurance ◽  
Relevant Information ◽  
Mortality Rates ◽  
Good Faith ◽  
Disability Discrimination ◽  
Other Information ◽  
Utmost Good Faith ◽  
Disability Discrimination Act

Mutuality is the principle of private, commercial insurance; individuals enter the pool for sharing losses, and pay according to the best estimate of the risk they bring with them. Solidarity is the sharing of losses with payment according to some other scheme; this is the principle of state social insurance; essential features of solidarity are comprehensiveness and compulsion. Private insurance is subject to the uberrima fides principle, or utmost good faith; each side declares all it knows about the risk. The Disability Discrimination Act requires insurers to justify disability discrimination on the basis of relevant information, actuarial, statisical or medical, on which it is reasonable to rely. it could be very damaging to private insurance to abandon uberrima fides . However, although some genetic information is clearly useful to underwriters, other information may be so general as to be of little use. The way in which mortality rates are assessed is also explained.

scholarly journals Menakar Perlindungan Justice Colaborator

2016 ◽  
Vol 13 (2) ◽  
pp. 431
Author(s):  
Hariman Satria
Keyword(s):  
Criminal Law ◽  
The State ◽  
Good Faith ◽  
Constitutional Court ◽  
Special Equipment ◽  
Modus Operandi ◽  
The Future

Corruption is one form of systematic organized crimes performed with complicated modus operandi. Disclosing of this crime, in addition to requiring special equipment, also needs a certain method. One of the methods is using actors who collaborate or justice collaborator. The provisions on justice collaboratororiginally referred to Article 10 paragraph (2) of Law No. 13 of 2006 on Protection of Witnesses and Victims –but there are indications that these provisions do not provide protection to the justice collaborator. Because even though he plays as a collaborating actor,   it does not result in a loss of authority of the state to prosecute the concerned. This provision is considered violating the principle of lex certain criminal law, for  its ambiguity and multiple interpretations. Constitutional Court in its decision No. 42/PUU-VIII/2010states that Article 10 paragraph (2) regarding a quoprovision is not contrary to the 1945 Constitution. Without realizing it, Constitutional Court has come affirming the lack of protection on the collaborating actors. The fate of justice collaboratorthen finds the clarity in Article 10 paragraph (1) of Law No. 31 of 2014 on Protection on Witnesses and Victims. In the future, with reference to a quo provision, there is no guarantee to the justice collaboratorthat he would not be prosecuted either criminal or civil, except for statements or testimony that is not done in good faith. Besides regulated under legislation of Witnesses and Victims Protection, protection of the justice collaboratorhas also been set in UNTOC 2000 and UNCAC 2003.

On the Marketness of Markets and Actor Clout: Market-shaping Roles

2020 ◽  
Vol 4 (2-3) ◽  
pp. 170-184
Author(s):  
Suvi Nenonen ◽  
Kaj Storbacka
Keyword(s):  
The State ◽  
Market Maker ◽  
Relative Power ◽  
Market Evolution ◽  
Network Position ◽  
High Degree ◽  
Market Shaping

In reconnecting marketing to more plastic and malleable markets, we need more understanding about market evolution. In this research we explore how to assess the state of a market, and how the roles of a market-shaping actor vary depending on this state. We view markets as configurations of 25 interdependent elements and argue that well-functioning markets have a high degree of configurational fit between elements. The level of configurational fit describes the state of a market as a continuum from low to high marketness. The clout of a market actor to influence a market configuration is an amalgamation of the actor’s capabilities, network position and relative power. By exploring marketness and clout as contextual contingencies, we identify four market-shaping roles: market maker, market activist, market champion, and market complementor. The focus of a market-shaping actor, in terms of which elements to influence and in which order, vary significantly between roles.

The transformation of the Russian notary in the new economic realities

2020 ◽  
Vol 22 (1) ◽  
pp. 92-97
Author(s):  
KONSTANTIN A. KORSIK ◽  
◽  
ANASTASIYA A. PARFENCHIKOVA ◽  
Keyword(s):  
Public Administration ◽  
Relevant Information ◽  
The State ◽  
Technological Infrastructure ◽  
Social Sphere ◽  
The Social ◽  
Modern Economic ◽  
World Development

The article is devoted to the review of current changes in the legislation on notaries related to the development of electronic civil circulation, analysis of existing digital risks and assessment of the role of notaries in combating them. In modern economic realities, a significant expansion of the sphere of competence of the notary is carried out by introducing completely new notarial actions into the scope of the notary’s terms of reference. At the same time, the notary does not just follow the general ‘digital’ trend, but independently makes significant efforts to effectively perform the tasks of the social sphere regulator assigned to it by the state. The creation of the Unified Notary Information System as part of the formation of the technological infrastructure to ensure the security and stability of legal relations in the context of electronic civil circulation takes to a new level the quality of notarial services and the security of legally relevant information. The role of notaries significantly increases in conditions when the use of digital technologies in the economy, public administration, social sphere becomes one of the main vectors of world development, and society and the state inevitably face the flip side of this process – digital risks that jeopardize the safety of participants in civil turnover and their property. In 2020, as part of the implementation of the national program ‘Digital Economy’, it is planned to introduce a number of innovations that will create the basis for a stable and secure ‘digital’ turnover.

EKSISTENSI PENERAPAN HUKUMAN MATI DI INDONESIA

2016 ◽  
Vol 1 (1) ◽  
Author(s):  
R Ahmad Muhammad Mustain Nasuha
Keyword(s):  
Death Penalty ◽  
Capital Punishment ◽  
Islamic Law ◽  
Criminal Code ◽  
The State ◽  
Court Decision ◽  
Constitutional Court ◽  
Draft Bill

This study aims the death penalty in Indonesia. We know where the death penalty is contrary or not in terms of the constitution and Islamic law, then we can conclude that if the legal implementation of the death penalty in Indonesia continue to be done or should be abolished. Based on research and the analysis conducted, conclude that Indonesia According to the Indonesian Constitution that the death penalty in Indonesia is constitutional. Constitutional Court Decision No. 2-3 / PUU-V / 2007 states that the imposition of the death penalty was constitutional. Any law governing capital punishment is not contrary to the Constitution of the State of Indonesia. However the legislation in Indonesia death penalty is still recognized in some legislation. There are three groups of rules, namely: Criminal Dead in the Criminal Code, Criminal die outside the Criminal Code, Criminal die in the Draft Bill. According to Islamic law that the death penalty could be applied to some criminal act or jinazah, either hudud qishahs, diyat or ta'zir among others to: Apostate, Rebel, Zina, Qadzaf (Allegations Zina), Steal (Corruption), Rob (Corruption), Murder.

Traditional and Customary Law: Adat

2018 ◽  
Author(s):  
Simon Butt ◽  
Tim Lindsey
Keyword(s):  
Judicial Review ◽  
Rural Areas ◽  
Small Proportion ◽  
Local Governments ◽  
The State ◽  
Customary Law ◽  
Constitutional Court ◽  
The Past ◽  
Statutory Protection ◽  
Traditional Communities

Many Indonesians—primarily those living in rural areas—still follow customary law (adat). The precise rules and processes of that adat differ significantly from place to place, even within short distances. This chapter shows that for many decades, adat has been subservient to national law. State-made law overrode it, leaving it applicable only in a very small proportion of cases where no national law applied, where judges could apply it as ‘living law’. Even in these cases, many judges ignored adat or distorted it when deciding cases. The 1945 Constitution was amended in 2000 to require the state to formally recognize and respect customary law, as practised in traditional communities. The Constitutional Court has given effect to this in various judicial review cases, as have some statutes enacted in the past decade or so. However, this constitutional and statutory ‘protection’ has been impeded in practice by requirements for traditional communities to be formally ‘recognized’ by their local governments, many of whom have been unresponsive to calls for recognition.

Combatting organised crime and terrorism in Central Asia

2018 ◽  
Vol 25 (2) ◽  
pp. 309-319 ◽  
Author(s):  
Emma van Santen
Keyword(s):  
Central Asia ◽  
Explanatory Power ◽  
Academic Research ◽  
Organised Crime ◽  
The State ◽  
State Crime ◽  
International Policy ◽  
Content Type ◽  
Central Asian ◽  
Terrorist Groups

Purpose This paper aims to examine the shift away from the traditional distinction between organised crime and terrorist groups towards their conceptual convergence under the crime-terror nexus narrative in the context of international security and development policy in post-Soviet Central Asia. It assesses the empirical basis for the crime-terror and state-crime nexus in three Central Asian countries – Kyrgyzstan, Tajikistan and Uzbekistan – and argues that the exclusion of the state from the analytical framework undermines the relevance of the crime-terror paradigm for policy-making. Design/methodology/approach This paper draws on a literature review of academic research, recent case studies highlighting new empirical evidence in Central Asia and international policy publications. Findings There is a weak empirical connection between organised crime and Islamic extremists, such as the Islamic Movement of Uzbekistan and Hizbut Tahrir, in Central Asia. The state-crime paradigm, including concepts of criminal capture, criminal sovereignty and criminal penetration, hold more explanatory power for international policy in Central Asia. The crime-terror paradigm has resulted in a narrow and ineffective security-oriented law enforcement approach to counter-narcotics and counter-terrorism but does not address the underlying weak state governance structures and political grievances that motivate organised crime and terrorist groups respectively. Originality/value International policy and scholarship is currently focussed on the areas of convergence between organised crime and terrorist groups. This paper highlights the continued relevance of the traditional conceptual separation of terrorist and organised crime groups based on their different motives, methods and relationship with the state, for security and democratic governance initiatives in the under-researched Central Asian region.

The nature and features of ‘unused old order rights’ under the MPRDA revisited: The story of Gouws’ farm

2021 ◽  
Vol 138 (3) ◽  
pp. 599-616
Author(s):  
Pieter Badenhorst
Keyword(s):  
Mineral Resources ◽  
The State ◽  
Constitutional Court ◽  
Old Order ◽  
The Poor ◽  
Petroleum Resources ◽  
Constituent Elements ◽  
Resources Development

This article examines the nature and features of ‘unused old order rights’ (‘UOORs’) under item 8 of Schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 in light of the recent decision by the Constitutional Court in Magnificent Mile Trading 30 (Pty) Ltd v Celliers 2020 (4) SA 375 (CC). At issue was: (a) whether an UOOR was transmissible to heirs upon the death of its holder; and (b) the applicability of the Oudekraal principle to the award of an unlawful prospecting right to an applicant, contrary to the rights enjoyed by the holder of an UOOR. The article analyses the constituent elements of an UOOR, rights ancillary to the UOOR’s and the nature and features of UOORs and ancillary rights. The article also considers the possible loss of an UOOR by application of the Oudekraal principle due to the unlawful grant of a prospecting right by the state, as custodian of mineral resources. The article illustrates that the CC ensured in Magnificent Mile that the Oudekraal principle does not undermine the security of tenure and statutory priority afforded to holders of UOORs by ultra vires grants of inconsistent rights to opportunistic applicants. Concern is also expressed about the poor administration of mineral resources by the Department of Mineral Resources and Energy.

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