EMPLOYEE LOYALTY IN RELATION TO THE WHISTLEBLOWER DIRECTIVE

The whistleblower protection directive may have a significant impact on the essence of understanding employee loyalty in employment relationships. In this paper I argue that the possibility of whistleblowing does not contradict employee duties as expressed in Article 100 § 2 section 4 of the Labor Code. In my opinion, the thesis should be put forward that the employee’s duty of loyalty is limited to the employer’s lawful actions. It would be unacceptable to state that the employment relationship restricts the employee’s freedom of speech in the sense that it prohibits the employee from opposing the employer’s unlawful conduct. Moreover, in my view, the employee’s duty of loyalty should be interpreted in such a way that it is horizontal in nature. This is because it refers to business relations between market entities. The doctrine and judicature extensively describe breaches of the duty of loyalty by employees in the context of horizontal relationships, relating to other market players, particularly those engaged in competitive activity (the unit-unit relationship). In contrast, the provisions of the Directive on the protection of whistleblowers are vertical standards, relating to the relationship between the individual and the state (public interest). Thus, in my view, the duty of loyalty to the employer cannot outweigh the possibility of acting in the public interest, which is emanated by the provisions of the Directive.

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

WARRANTLESS SEARCHES AND AWARDS FOR DAMAGES IN LIGHT OF THE JUDGMENT IN Shashape v The Minister of Police Case No.: 1566/2018

The law of criminal procedure is “double functional” in that it not only dictates the proper procedure for the execution of police functions but also serves as a ground of justification in substantive law against otherwise unlawful conduct. Nevertheless, personal liberties, even in the pursuit of justice in a country overrun by crime, cannot be sacrificed indiscriminately simply to further the diligent investigation of crime.An example of personal liberties being sacrificed in favour of the pursuit of justice is the search and seizure of private spaces of individuals. Search and seizure may be effected both with and without a warrant and is regulated by the Criminal Procedure Act 51 of 1977 (CPA). However, where a police official acts outside of this legislative matrix, his or her conduct is not regarded as lawful; he or she may not rely on official capacity as a ground of justification against an (unlawful) search. In such instances, the Minister of Police may be vicariously liable in delict owing to the unlawful conduct of police officials. Such cases are relatively rare.This contribution will focus on two specific aspects – namely, search and seizure conducted without a warrant, and subsequent awards for damages based on unlawful, warrantless searches. The recent judgment in Shashape v The Minister of Police (WHC (unreported) 2020-04-30 Case no 1566/2018 (Shashape)) is discussed against this backdrop.

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

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.

INIURIA IN CYBERSPACE

The purpose of this note is to investigate some real-world disputes that may arise as a result of unlawful conduct in virtual worlds. The note will firstly expand the background of virtual worlds and then sketch some scenarios, which could potentially lead to liability in law. The main focus will be on actionability in criminal law and delict in South African law. Special attention will be given to the question whether personality rights of members of virtual worlds can be infringed by, for instance, the rape of their avatars. The question whether liability for economic loss caused unlawfully to members of virtual worlds by other members of such worlds will also be addressed.

The Shifting Pendulum: Foreign Investors’ Liability Under Canada’s Common Law for Breaches of Customary International Law

In February 2020, the Supreme Court of Canada rendered a decision—Nevsun Resources Ltd. v. Araya, 2020 SCC 5—that can properly be described as revolutionary. In Nevsun, the court found that a Canadian corporation operating in a host state, Eretria, could be liable under Canadian domestic law for human rights abuses committed in Eritrea under customary international law, as incorporated into Canadian domestic law. The decision merits special attention because it is likely to fundamentally change the relationship between foreign investors, host states and the residents of host states adversely affected by investors’ unlawful conduct which amount to modern slavery.

A Forensic Evidence Recovery from Android Device Applications

In a computerized world, indeed unlawful conduct and/or violations may be named as advanced. This world is expanding. Getting to be versatile, where the fundamental computation and communication substances are Little Scale Computerized Gadgets (SSDDs) such as standard versatile phones, individual computerized collaborators, smartphones, and tablets. The ought to recoup information, which might refer to illegal and unethical exercises gave rise to the teaching of portable forensics, which has ended up a fundamental portion of computerized forensics. The literature relevant to Smartphone forensics, as explored in this paper, focuses on the architecture of Smartphone operating systems. It also addresses the digital evidence of Smartphone applications. in this paper undertakes practical experiments to identified sources for evidence that can later be used in the judiciary system. In this research, I'll use open-source Tools that can recover deleted data from the application.

The Need to Adopt Preventative Measures to Combat the Misappropriation of Retirement Fund Assets

This paper discusses the challenge of the misappropriation of retirement fund assets by trustees, fund asset managers and retirement funds’ administrators. It demonstrates that retirement fund members lose substantial retirement benefits due to the illegal and unlawful conduct of those who manage and administer retirement funds. It evaluates whether the South African legislative framework offers retirement funds and their members adequate protection from activities that may compromise the delivery of the pension promise such as: mismanagement; fraudulent activities; gross negligence; and the outright looting of retirement fund assets. In particular, this paper illustrates that the law in South Africa does not deter would-be wrongdoers from acting in a manner that may compromise the benefits expected by retirement fund members when they exit their funds. It advocates the adoption of adequate preventative legislative measures that would make it difficult for anyone to act in a manner that would compromise retirement fund members' benefits in South Africa.

Legal Liability of Municipal Corporations: A Rational Choice Approach to Optimising Deterrence

Since corporations owned by municipalities provide important services to local populations, unlawful conduct on their part is especially undesirable. This paper researches the elements that need to be present in a legal framework, so that the deterrent effect regarding undesirable conduct of municipal corporations will be optimised. An approach based on rational choice considerations is proposed, which takes into account the necessity of an adequate severity of sanctions, a high likelihood of liability for offenders and the need to deprive them of unlawful gains. Interrelation and cumulative effects of norms pertaining to criminal, civil and disciplinary liability are emphasized. The proposed model has the potential to be used by policy-makers to gain additional insight into merits or demerits of different potential legal regimes aimed at deterrence of unlawful behaviour in municipal corporations and their employees.

6. Manslaughter

This chapter focuses on manslaughter, a common law homicide offence with an actus reus of unlawful conduct causing death. The chapter considers two categories of manslaughter: voluntary manslaughter and involuntary manslaughter. Voluntary manslaughter arises where D commits murder, but meets the criteria for one of the partial defences: loss of self-control, diminished responsibility, or suicide pact. Involuntary manslaughter arises where D does not commit murder, but commits a relevant manslaughter offence: unlawful act manslaughter, gross negligence manslaughter, or reckless manslaughter. The chapter explains statutory offences of unlawful killing (corporate manslaughter, driving causing death, infanticide, killing of a foetus) and concludes by outlining options for legal reform concerning voluntary manslaughter, involuntary manslaughter, and the structure of manslaughter offences. Relevant cases are highlighted with a summary of the main facts and judgment.