The Corruption Eradication Commission (KPK) Supervisory Board's Role as a Grantor of Permits in Corruption Crimes

The existence of the Corruption Eradication Commission or Komisi Pemberantasan Korupsi (KPK)’s Supervisory Board to oversee KPK's work is the result of the KPK Law Number 19 of 2019. This new legislation mandates the KPK Supervisory Board to perform four primary duties. One of the duties of the Board's authority, permitting or not permitting KPK to conduct wiretapping, search, and/or seizure corruption crimes, sparked public outrage due to the fear of attempts to weaken KPK. This research is served for determining whether the role of the KPK Supervisory Board as a licensee for wiretapping, search, and seizure of criminal acts of corruption is functional and will run effectively and efficiently in tackling the eradication of corruption. The research method used is qualitative research with descriptive presentation and a normative juridical approach. According to the findings, the pro-justice authority delegated by law to the KPK Supervisory Board, namely granting permits for wiretapping, search, and confiscation of criminal acts of corruption, has proven to be effective and efficient in combating corruption. It is concluded because, in principle, it is assumed that balancing all the powers of state institutions through supervision is a natural thing to do.

Warrantless search and seizure by SARS: a constitutional invasion of taxpayers’ privacy? – Part Two

Sec. 63 of the Tax Administration Act 28 of 2011 (TAA) grants officials of the South African Revenue Service (SARS) access to taxpayers’ private and confidential information by, first, searching a taxpayer’s person and premises without a warrant and, secondly, permitting the seizure of taxpayers’ possessions and communications. Part One of this article (see Journal for Juridical Science 2021(1)) argued that the TAA is a “law of general application” as envisaged by the so-called “limitation clause” contained in sec. 36(1) of the Constitution, 1996 and that, in terms of the threshold stage of analysis prescribed by this provision, the exercise of the powers conferred by sec. 63(1) and (4) limits a taxpayer’s constitutional right to privacy as entrenched in sec. 14 of the Constitution. In this Part Two of the article, it will be hypothesised that, although the search and seizure powers in sec. 63(1) and (4) of the TAA are not models of drafting with absolute clarity, they ought, in terms of the second stage of enquiry that is triggered by the findings in Part One, nevertheless to pass muster under sec. 36(1) of the Constitution, because of the justifiability of the limitation imposed on the right to privacy by these provisions.

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.

REFUSAL OF THE SUBJECTIVE RIGHT TO THE INVIOLABILITY OF HOME IN A CRIMINAL PROCEDURE (THEORETICAL AND LEGAL ASPECT)

The article discusses consent to the conduct of investigative actions in a home as a refusal of an authorized person from his subjective right to the inviolability of the home, as well as the peculiarities of the procedural procedure for conducting investigative actions in a home in the presence of a refusal of the subjective right to its inviolability. The legal significance of consent to the entry of strangers into the home is that it is a waiver of the right to the inviolability of the home and is one of the legal facts that allow the official conducting the investigative action to interfere with the right of this person. Proceeding from the general signs of a waiver of the right, the authors argue that the inviolability of the home is a subjective right that can be waived, they determine the persons whose waiver of the right to the inviolability of the home has legal significance. By renouncing his right to the inviolability of his home, a person turns out to be from the powers that make up the content of this right. The authors come to the conclusion that the constitutional and legal nature of the principle of the inviolability of the home makes it necessary to ascertain the opinion of all residents on the performance of any investigative actions in the home, with the exception of a search and seizure, the basis for the production of which is exclusively a judicial decision. The article also analyzes the procedure for giving up the right to the inviolability of the home by giving consent.

Implementation of the proportionality test during the search process and the collection of evidence

As a means of collecting materials, the search and seizure of objects and documents is of undeniable importance in criminal evidence, providing valuable data that serve to establish the existence or non-existence of the crime, to identify the perpetrator, to establish guilt and other circumstances essential to the just settlement of the case. The present study, in the light of the proportionality test, reflects on the application of several evidentiary procedures, based on multiple criteria, in particular, the assessment of the reasonable doubt, the proportionality between the evidentiary procedure used and the degree of the incriminated deed; the relevance of the materials collected as a result of the evidentiary procedure and the excessive use of force, in carrying out the search.

Applying and Developing the Intrusion into Seclusion Tort in New Zealand

<p>As new and intrusive ways of invading a person’s privacy become increasingly common, it is important that tort law has a satisfactory way of protecting a person from intrusion. The case of C v Holland in 2012 created such a protection mechanism, by importing the tort of intrusion into seclusion from the USA. Whereas the first tort of privacy introduced in New Zealand protects the publication of private facts, intrusion into seclusion prevents access to a person even if it does not result in dissemination of any personal information. This thesis explains why protecting the intrusion interest per se is important and uses Kirsty Hughes’ barriers theory, which suggests that privacy should only be protected when a desire for it is communicated or normatively appropriate, to help define the intrusion interest such that it is legally useful. It analyses the elements of an intrusion into seclusion action as suggested by Whata J in C v Holland, and recommends how they could be better constituted. The crux of the thesis though focuses on when a reasonable expectation of privacy is satisfied, a question that received limited attention in C v Holland. This section suggests that determining a reasonable expectation of privacy involves a detailed analysis of three suggested factors, modified from Richard Wilkins’ approach in the US search and seizure context. The thesis considers how the factors could be applied, both separately and holistically, to an intrusion into seclusion claim in New Zealand.</p>