scholarly journals When Lawyers Lie, Cheat and Steal: Understanding the Role of the Bar ‒ Ndleve v Pretoria Society of Advocates [2016] ZACC 29

Obiter ◽  
2019 ◽  
Vol 40 (2) ◽  
Author(s):  
Angelo Dube ◽  
Nicholene Nxumalo
Keyword(s):  
Justice System ◽  
Constitutional Court ◽  
Professional Conduct ◽  
High Court ◽  
The Public ◽  
Lower Courts ◽  
The Law

On 1 September 2016, the Constitutional Court handed down judgment in the case of Ndleve v Pretoria Society of Advocates ([2016] ZACC 29), in which it unanimously dismissed an application for leave to appeal lodged by Ralph Patrick Ndleve. The case established that there is a duty placed upon the Society of Advocates to uphold the law and ensure the integrity of the profession and the justice system as a whole. Further, the Society of Advocates was held to owe that duty to both the courts and the public. The case also established that the dominus litis in such cases is the Society of Advocates, and not the clients who lodged complaints.Ndleve’s application followed a series of applications before the Constitutional Court and the lower courts, in which Ndleve sought to set aside a decision of the High Court striking him from the roll of advocates. His disbarment followed an application moved before the High Court by the Pretoria Society of Advocates (the Society) after it received complaints of unethical professional conduct from various of Ndleve’s “clients”. Among these were complaints that Mr Ndleve took instructions directly from clients without being instructed by an attorney; that he continued to practise as an advocate after he had been struck off the roll; that he took money from clients without the intervention of an attorney; and that he had stolen money from clients. What stands out in this case, as will be discussed below, is that Ndleve’s dishonesty persisted even in the manner in which he conducted his application before the Constitutional Court.

Notes: ‘Observations’ on the State Capture judgment

2021 ◽  
Vol 138 (3) ◽  
pp. 477-500
Author(s):  
Michael Tsele
Keyword(s):  
South Africa ◽  
Case Law ◽  
The State ◽  
Controversial Issue ◽  
Court Decision ◽  
Constitutional Court ◽  
High Court ◽  
The Public ◽  
State Capture ◽  
The Law

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

2021 ◽  
Vol 56 (1) ◽  
pp. 18-33
Author(s):  
Lucky Mathebe
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Transformative Change ◽  
Democratic Accountability ◽  
Constitutional Democracy ◽  
The Public ◽  
Crime And Punishment ◽  
Black And White ◽  
Marginalised Groups

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

The Legal Framework for Foundations in the Habsburg Monarchy from 1750 to 1918

2017 ◽  
Vol 1 (2) ◽  
pp. 154-172
Author(s):  
Gabriele Schneider
Keyword(s):  
Public Good ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Habsburg Monarchy ◽  
The Public ◽  
Regulation And Supervision ◽  
Role Of The State ◽  
The Law

Foundations, as permanent funds established by a certain legal act, can serve manifold purposes, but often pursue charitable goals. As such, they play an important role for the public good. Therefore, states always had an interest in fostering foundations by providing a pertinent legal framework. In Austria, this topic has not yet been the focus of scholarship. Through this study some light is shed on the implementation of the law on foundations in the Habsburg Monarchy. It focuses on the role of the state and its legal system regarding the regulation and supervision of foundations from 1750 to 1918. This period is characterized by the sovereigns’ endeavor to regulate the position of foundations via extensive legislation. In particular, a system of oversight for foundations was created in order to guarantee the attainment of their charitable goals. In fact, this system prevailed until the end of the 20thcentury.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

scholarly journals INTERPRETATION AND RECTIFICATION IN AUSTRALIA

2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
New South ◽  
Common Law ◽  
New South Wales ◽  
High Court ◽  
South Wales ◽  
Housing Corporation ◽  
Lower Courts ◽  
The Law ◽  
High Court Of Australia

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).

scholarly journals Legal Mechanisms for Protection of Migrants' Rights by the Public Authorities of the Russian Federation

2018 ◽  
Vol 9 (4) ◽  
Author(s):  
Ksenia Minakova
Keyword(s):  
Russian Federation ◽  
Migration Policy ◽  
Constitutional Court ◽  
Special Role ◽  
Public Authorities ◽  
Normative Documents ◽  
The Public ◽  
The Russian Federation ◽  
Migrants Rights

The article analyzes methods of ensuring the migrants rights by the public authorities of the Russian Federation, the individual elements of the migration policy of the Russian Federation relating to the activities of public authorities. It considers the activities in the field of protection of the migrants rights by such authorities as the Russian President's Office for Constitutional Rights of Citizens, the Presidential Council for Civil Society and Human Rights, the Council for Interethnic Relations, General Directorate for Migration, Chief Directorate for Migration Issues of Ministry of Internal Affairs of the Russian Federation, their normative documents, that regulate their activities. It examines separately the activities of the RF Government in the field of protection of the migrants rights, as well as judicial authorities; it identifies the special role of the RF Constitutional Court in the field of ensuring the rights of migrants, refugees, the internally displaced and stateless persons. It underlines the role of authority bodies of the RF entities in ensuring the migrants rights in terms of Irkursk Oblast. The article offers to differentiate strictly the role of each authority body in the field of migrants rights protection, as well as to pay specific attention to regulation of activities of the FR entities authority bodies in this direction.

scholarly journals Imunitas Hukum Bagi Notaris Yang Membuka Rahasia Jabatan

Jurnal Akta ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 25
Author(s):  
Rita Permanasari ◽  
Akhmad Khisni
Keyword(s):  
Law Enforcement ◽  
Supervisory Board ◽  
Legal Protection ◽  
The Political ◽  
Constitutional Court ◽  
The Law ◽  
Notary Public ◽  
The Republic ◽  
Law Regulation

ABSTRAKKetentuan Pasal 4 dan Pasal 16 ayat (1) huruf f Undang-Undang Jabatan Notaris mewajibkan notaris untuk menjaga kerahasiaan segala sesuatu mengenai akta yang dibuatnya dan segala keterangan yang diperoleh guna pembuatan akta sesuai dengan sumpah janji jabatan kecuali undang-undang menentukan lain. Kemungkinan terhadap pelanggaran kewajiban tersebut berdasarkan Pasal 16 ayat (11) Undang-Undang Jabatan Notaris, seorang notaris dapat dikenai sanksi berupa teguran lisan sampai dengan pemberhentian dengan tidak hormat. Terlebih lagi dengan adanya putusan Mahkamah Konstitusi Republik Indonesia dengan Nomor: 49/PUU–X/2012 memutuskan telah meniadakan atau mengakhiri kewenangan Majelis Pengawas Daerah (MPD) yang tercantum dalam Pasal 66 ayat (1) UUJN membuat notaris seakan-akan tidak ada perlindungan hukum bagi notaris dalam menjalankan tugas jabatannya. Ikatan Notaris Indonesia (INI) harus berusaha menjalankan peranan pembinaan dan perlindungan meningkatkan pengetahuan, kemampuan dan keterampilan para notaris. Demikian juga menjalin hubungan dengan para penegak hukum lainnya, agar penegak hukum lainnya yang ada hubungan dengan notaris dapat memahami kedudukan notaris sesuai UUJN.Berangkat dari pemikiran inilah kewajiban ingkar notaris masih tetap dipertahankan oleh pembuat undang-undang dalam revisi Undang-Undang Jabatan Notaris Tahun 2014 yang merupakan konfigurasi kekuatan perlindungan terhadap profesi dan jabatan notaris dari sisi politik.Kata Kunci : Jabatan Notaris, Hak Ingkar, Perlindungan Hukum.ABSTRACTThe provisions of Article 4 and Article 16 paragraph (1) sub-paragraph f of the Notary's Office Law require a notary to maintain the confidentiality of all matters concerning the deeds it has made and all the information obtained for the deed in accordance with the oath of pledge of office except the law otherwise. The possibility of breach of such obligation under Article 16 paragraph (11) of Notary Law Regulation, a notary public may be subject to sanctions in the form of oral reprimands until dismissal with disrespect. Moreover, with the decision of the Constitutional Court of the Republic of Indonesia with the number : 49 /PUU-X/2012 deciding to have canceled or terminated the authority of the Regional Supervisory Board (MPD) listed in Article 66 paragraph (1) UUJN made a notary as if there was no legal protection for a notary in performing duties. The Indonesian Notary Bond (INI) should endeavor to undertake the role of guidance and protection to increase the knowledge, abilities and skills of the notaries. Likewise establish relationships with other law enforcers, so that other law enforcement who has relationship with the notary can understand the position of notary under the UUJN.Departing from this thought the obligation of notarization is still maintained by the lawmakers in the revision of the Law Regulation of Position Notary on Year 2014 which is the configuration of the strength of the protection of the profession and the notary's position from the political side.Keyword : Position of Notary, Right of Remedy, Legal Protection.

scholarly journals Local Self-Government in the Public Government System: A New Constitutional Dimension

2020 ◽  
Vol 10 ◽  
pp. 23-26
Author(s):  
Oleg A. Kozhevnikov ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal Framework ◽  
Constitutional Court ◽  
Public Power ◽  
The Public ◽  
System A ◽  
International Obligations ◽  
The Russian Federation ◽  
The Law

The article analyzes certain provisions of the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation of March 14, 2020 No. 1-FKZ “On improving the regulation of certain issues of the organization and functioning of public power” in terms of regulatory regulation of local self-government. According to the analysis the author comes to the conclusion that with the entry into effect of the mentioned legal act the content of individual elements of the constitutional-legal bases of local self-government will change, but the nature and scope of modifications in many respects will depend on the provisions of the rules of sectoral legislation aimed at implementing the relevant provisions of the Constitution. In this regard, the Federal legislator has a huge responsibility to create an “updated” legal framework for the implementation of the constitutional foundations of local self-government, taking into account the already established law enforcement practice, the positions of the constitutional court of the Russian Federation, as well as the state's international obligations under the European Charter on local self-government.

scholarly journals Who are we Trying to Protect? The Role of Vulnerability Analysis in New Zealand's Law of Negligence

2016 ◽  
Vol 47 (1) ◽  
pp. 19
Author(s):  
Scott William Hugh Fletcher
Keyword(s):  
New Zealand ◽  
City Council ◽  
High Court ◽  
North Shore ◽  
The Law ◽  
High Court Of Australia ◽  
Negligence Law ◽  
Insight Into ◽  
Consistent Application

New Zealand has incorporated ideas of vulnerability within its law of negligence for some years. It has not, however, clarified what is meant by vulnerability or the role the concept plays within the broader duty of care framework. Several obiter comments in Body Corporate No 207624 v North Shore City Council (Spencer on Byron) suggest the concept ought not to be part of the law due to its uncertain and confusing nature. Subsequent cases have, however, continued to use the concept, and continue to use it despite both its historically ill-defined nature and the additional uncertainty added by Spencer on Byron. This article argues that vulnerability can and ought to be a part of New Zealand negligence law. With a consistent application of a single test for vulnerability – that established in the High Court of Australia in Woolcock Street Investments Pty Ltd v CDG Pty Ltd – vulnerability can be conceptually certain and provide useful insight into the issues posed by the law of negligence.

The Role of the Directors

2021 ◽  
pp. 125-194
Author(s):  
Eva Micheler
Keyword(s):  
Public Interest ◽  
Company Law ◽  
Economic Interests ◽  
Financial Reports ◽  
The Public ◽  
Company Directors ◽  
The Board Of Directors ◽  
The Law ◽  
The Uk

This chapter describes the role of the directors. The duties of the directors are owed to the company and while the shareholders are the primary indirect beneficiaries of those duties, the law integrates the interests of creditors and also of wider society. The law is primarily focused on ensuring compliance with the Companies Act and the constitution rather than with the enhancement of economic interests. The Company Directors Disqualification Act 1986 serves as a mechanism through which the public interest is integrated into company law, while the UK Corporate Governance Code adds a further procedural dimension to the operation of the board of directors. The chapter then looks at how the idea of designing remuneration in a way that guides the directors to act either for the benefit of the shareholder or for the benefit of the company is flawed and has served as a motor justifying increasing rewards without bringing about commensurate increases in performance. It also analyses the duties of the directors to keep accounting records and to produce financial reports.

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