Constitutional Obligation Research Articles

Equality is not Equal to Justice: on the Issue of Confrontation in the Protection of the Rights of Women and Men

The paper examines the scholarly experience of understanding the equality of constitutional and socioeconomic rights and obligations of citizens in Russia, elucidates approaches to the definition of men’s rights as legal and social categories, understanding and substantiating gender inequality in relation to men and women. The author has carried out a critical analysis of publications devoted to the problem of infringement of men’s rights in Russia. The author has studied the origins of the scientific formulation of the problem of discrimination against men, its manifestations in the legal field of the Russian Federation. It has been established that some researches represent men and women as rivals in the struggle for rights, determine the problem one-sidedly and unconstructively, devalue achievements in the struggle for women’s rights, contrast both the rights and duties of men and women in general and exaggerated manifestations of discrimination against men by legislatively established privileges of women. Listing the problems of discrimination against men, some authors use weak argumentation that defies criticism. The author states that posing the problem in this way is counterproductive for achieving the general well-being of the Russian population. It is argued that the problems of infringement of someone’s rights should be solved through constructive dialogue and should be aimed at achieving common goals, but not by spreading discriminatory practices to the opposite gender.

The constitutional obligation to pay taxes and fees: features when performing transactions with securities

The constitutional obligation to pay taxes and fees: features when performing transactions with securities

The Principles And Rationale For Determining The Creamy Layer For The Other Backward Classes In India

The exemption of the creamy layer from quota benefits is a constitutional obligation that must be adhered to by the government. “The Mandal Committee was founded by former Prime Minister Morarji Desai’s administration with the remit to “recognize the socially or educationally disadvantaged.” It was chaired by legislator Bindheshwari Prasad Mandal and was charged with examining the issue of seat reservations and quotas for people to remedy caste prejudice. The commission's report affirmed the affirmative action practice established under Indian law, under which members of lower castes (referred to as “Other Backward Classes” and “Scheduled Castes and Tribes”) were granted preferential access to a certain percentage of public service jobs and admission to state colleges, and suggested raising these quotas by twenty seven to forty nine point five percent, but leaving the creamy layer out of the review of reservations would be contradictory to deny the legitimacy of the “creamy layer” concept in other domains of application after its validity has been established in the provision of the constitution as well as many judicial decisions. As a result, putting the appeal of this principle to the test becomes crucial.

The Right to Electricity in South Africa

In this note, we examine access to electricity as a right in South African law. We also consider whether deprivations, interferences and disruptions of electricity supply are justifiable limitations of the right. While recent court decisions view access to electricity as a supplement to the Bill of Rights, judicial treatment of electricity as a right precedes the Constitution of the Republic of South Africa, 1996. Prior to the adoption of the Constitution, the courts treated access to electricity as a common law right in the context of servitudes and personal and contractual rights. Under the Constitution, the right to access to electricity flows from the constitutional and statutory obligations of Eskom, South Africa's power utility, to provide reliable electricity supply and to ensure just administrative action when taking actions that result in the deprivation of electricity. From a Bill of Rights perspective, the cases show that the right to electricity, albeit not expressed in the text of the Constitution, is a condition for the exercise of other rights, including the rights to human dignity and access to adequate housing, water and health care. We conclude that the deprivation of electricity through loadshedding and other interruptions by Eskom, landlords and body corporates are violations of the right to access to electricity. These violations could be remedied through spoliation and constitutional remedies.

LOCAL GOVERNMENT AND PUBLIC VALUE: AN ASSESSMENT OF NIGERIAN EXPERIENCE

Purpose- The purpose of this paper is to introduce the concept of Public Value in the management and administration of Local Government in Nigeria. As the third tiers of Government, Local Government have the best potentials to foster generation of public interests through creation of public value in the management processes based on hominization of the functions which the third tiers of Government were established. To attain its goals, it adopted theoretical and conceptual review of literatures whereby descriptive and multidimensional frameworkwill help improve and better public services deliveries, improved administrative performance and creation of social value at the grassroots level. Limitation: The new concept of Public Value creation in Local Government administration in Nigeria will need conceptual and theoretical practices to validate the much expected good governance as the third tiers of Government which should aid visionary and missionary leadership to thegrassroots governance as its strives to deliver impactful social amenities and social governance as obliged in the federal constitution. This paper adopted narrative approach and observatory methodinto the strategic advantages and coherent approaches in bringing values to provision of public services and delivering their constitutional obligations through public utilities and services provisions, develop innovative and efficient service delivery. It ended by addressing hindrances in delivering of public values utilities and recommend panaceas for better services delivery and adoption of public value to the system.

The implementation of the practice of the European court of human rights in the national mechanism of protection of the right to safe working conditions

The constitutional obligation of the Ukrainian state to provide all citizens with protection of their health and life in the course of labor activity. It consists in legislative enshrinement of legal norms that determine the conditions and procedure for exercising the constitutional right of citizens to proper, safe and healthy working conditions, means of protection of this right, as well as legal mechanisms to protect this right in case of violation. The application of the case law of the European Court of Human Rights as a source of law by the courts actualizes the study of its decisions on the protection of the right to safe working conditions.
 Ensuring safe working conditions is an important task in the context of the goals of sustainable development is defined in the article. The position of the European Court of Human Rights needs to be implemented into national legislation. The safety and hygiene of the working environment must not harm the life and health of the worker, and the state must provide citizens with an appropriate level of legal regulation and administrative procedures to protect their right to life and health, including in the work environment.
 The right of the employee to safe and healthy working conditions is a component of the right to life in the position of the European Court of Human Rights. The positive obligation of the state to introduce an effective legislative mechanism for the protection of life also applies in the context of safety and health at work. The exercise of the right to adequate, safe and healthy working conditions in the practice of the European Court of Human Rights is carried out by examining compliance with the positive obligation of the state to create the necessary legal and administrative conditions and procedures to protect the lives and health of citizens (employees). It provides for the issuance of regulations, instructions or recommendations on the organization of labor protection, as well as ensuring appropriate supervision and control in the field of labor.
 The creation of legislative and administrative mechanisms for the protection of the right to life, in which safety and labor protection are necessary components of its legal support, is Ukraine’s obligation.

RE(VIEWING) THE CONSTITUTIONAL COURT’S DECISION IN SIDUMO

In Sidumo v Rustenburg Platinum Ltd (2007 12 BLLR 1097 (CC); 2007 28 ILJ 2405 (CC); 2008 2 SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the socalled “reasonable employer” test in our law, which required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming thatarbitrators remain so obliged) held that the obligation to do so suffuses section 145 of the LRA ,and the extended review grounds of PAJA do not apply. In the present article these conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of what the test postulates; it is submitted that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or indeed at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the scope of the constitutional right to just administrative action; and further, that the labour landscape post-Sidumo is one bathed in greater uncertainty. In conclusion, the authors pose the questionwhether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.

CONSTITUTIONAL OBLIGATIONS OF INDONESIAN GOVERNMENT DURING COVID-19 PANDEMIC: A CRITICAL APPRAISAL

The research aims to evaluate the Indonesian government’s constitutional obligations and responses to protect citizens from coronavirus. The research is normative legal research using a statute, case, and comparative approach. The research findings reveal that first, the 1945 Constitution and Indonesian Human Rights Act state that the government has a responsibility to protect citizens’ human rights. Also, Health Quarantine Act, Health Act, Disaster Management Act, and Outbreaks of Infectious Diseases Act mention that the government has responsibility for any health efforts carried out during the Covid-19 Pandemic. Second, the government’s policies, such as arranging the Covid-19 Task Force and performing Large-Scale Social Restrictions, were late, and lack of coordination between central and local governments. Third, the government’s obstacles in handling the Covid-19 Pandemic are the policy not implemented effectively and adequately, ignorance and slow responses from the beginning, and low level of community awareness and individual discipline. The research recommends that, in the future, the government shall immediately take some prevention efforts and implement a strict lockdown policy for regions that have reached a particular infection level. The community also has to build their awareness and discipline to help the government deal with the COVID-19. Therefore, the spread of COVID-19 can be appropriately anticipated and controlled.

Australia and New Zealand’s Pacific policy: aligned, not alike

ABSTRACT Faced with growing Chinese engagement in the Pacific, the two traditional regional powers in that world region, Australia and New Zealand (NZ), unveiled major policy initiatives in the late 2010s. Both Australia’s ‘Pacific Step-up’ and NZ’s ‘Pacific Reset’ featured substantial increases in terms of development cooperation, diplomatic posts, and high-level exchanges and thus credibly signalled the two allies’ desire to remain partners of first choice for Pacific Island Countries. Alignment does however not mean that Australia and NZ’s Pacific policies are alike. A paired comparison highlights significant differences with respect to security and migration. I argue that the strong focus in Australia’s Pacific policy on hard security reflects not only the country’s more pronounced military profile and its alliance with the United States but also the country’s greater sense of vulnerability which derives in part from its geographic and historical linkages with Melanesia. This contrasts with NZ’s more unburdened traditional focus on Polynesia. I then trace the very different Pacific population profiles of the two Australasian states back to NZ’s much greater openness to permanent migration from the region – reflecting both constitutional obligations and the development of distinct migration pathways for Pacific people. These differences are of a structural nature and are bound to shape Australia and NZ’s policy approaches to the Pacific in the longer term.

Judicial protection of environmental rights in the Russian Federation: constitutional and legal basis

The article deals with the problems of determining the nature of environmental rights and the procedure for their protection. The article presents an analysis of the constitutional provisions and norms of the current Russian legislation in the environmental sphere. It is noted that environmental offenses related to the failure of public authorities to fulfil their constitutional and legal obligations in the environmental field should be considered by courts of general jurisdiction according to the rules of administrative proceedings. The idea of creating a system of specialized environmental courts, expressed in science, has been criticized. It is proposed to involve an expert in the case of difficulties in the consideration of cases of environmental violations.

Deploying Public Private Partnership (PPP) in Understanding the Missing Link and Requisite Legal Regime to Resolve the Almajiri System Challenge

The various efforts of the Federal Government and its agencies together with international institutions at integrating the Almajiri education into contemporary education in Nigeria or mainstreaming the Almajiri system into the nation’s educational system have not achieved the desired objectives. The failure of relevant policy makers could be traced to their solution-strategies, which did not give adequate considerations to the historical realities of the Almajiri system; to the constitutional obligation of government to provide free and compulsory basic education to its school age citizens; and to a genuine stakeholder buy-in of Almajiri school operators. Using a doctrinal research methodology that leaned more on official narrative, institutional publications as well as Internet resources and online blogs, the paper looked at Almajiri concept, reviewed the legal framework underpinning basic education rights in Nigeria, and explored the various attempts at mainstreaming the Almajiri system. The paper discovered that the solution-strategies to deal with the Almajiri challenge are premised on a jaundiced notion of the Almajiri system, which is commonly viewed as a source of terrorists and criminal gangs recruitments, and the underestimation of the capacity of Almajiri school operators to lead the process. The paper found that the risk analyses of the solution strategies were not adequate and comprehensive enough with the attendant consequence of increased suspicion between the government and Almajiri school operators. The paper therefore recommended a partnership arrangement built on mutual respect among the three stakeholders, namely, the government, the Almajiri school operators and the Almajiri parents as well as a partnership on the basis of shared responsibilities, shared resources and shared rewards under which the operators or their immediate communities will take a commanding heights in the operation and management of the Almajiri schools. This type of arrangement is a good candidate for Pro-Poor Public Private Partnership (PPPPP), which is commonly used in many jurisdictions to serve the neglected part of the populations. In this respect, the paper recommends the Charter School model, which the United States established to cater for the educationally underserved and neglected among its citizens. If implemented, the twin incidences of out-of-school children and Almajiri Street begging will greatly reduced, thereby positively impacting to the social, political and economic sectors of the Nigerian society.

STRATEGY OF PUBLIC SERVICE TO IMPROVE SERVICE QUALITY AT THE INSTITUTE OF LEARNING DEVELOPMENT AND PROFESSION (LP3) STATE UNIVERSITY OF SURABAYA

The implementation of a clean and effective government is a constitutional obligation and the hope of all citizens. In reality, these rights have not been fully obtained by the community. This is reflected in the number of complaints or public reports to the Ombudsman Institution to help handle complaints related to the performance of public services by government agencies. Based on the incoming reports, it can be seen that State Higher Education Institutions are ranked 12th based on the number of reports. One of these State Universities is the State University of Surabaya (Unesa). Unesa has an institution, one of which is called the Learning and Professional Development Institute (LP3) which has 7 (seven) centers, namely the Teacher Professional Education Center, Training Development Center, Professional Certification Center, Learning Strengthening Center, Core and Institutional MPK Management Center, Character Development Center and Counseling Services and Psychological Service Centers. The purpose of this study was to obtain an overview of the Public Service Strategy to Improve Service Quality at the Institute for Learning and Professional Development (LP3), State University of Surabaya. This type of research was developed using qualitative research. Sources of data from informants, events and documents. Data collection techniques through interviews, observation, documentation and triangulation. Data analysis is done by collecting data, reducing data, displaying data and drawing conclusions. Empirical data is needed to improve public services through LP3 Unesa. The information obtained can be used as a basis for establishing strategic policies that will help improve the quality of public services. The theory used in the opinion of Osborne (2001) there are 5 (five) strategies to improve the performance of public services. The strategies are Core Strategy, Consequences Strategy, Customer Strategy, Control Strategy, Culture Strategy.

The right to sustainable development in article 43(3) of the Ethiopian Constitution

Article 43(3) of the Constitution of the Federal Democratic Republic of Ethiopia provides that all international agreements concluded by the country shall respect Ethiopia's right to sustainable development. The concept of the 'right to sustainable development' contained in this provision is somewhat unclear. Issues such as the right holders and duty bearers, justiciability and binding nature of this right require clarification in order to effectively enforce it. This article argues that both the state and its people, but not individuals, are the right holders of this right. Under the Constitution the state is the duty bearer of fundamental human rights and freedoms, which include the right to sustainable development. It is the duty of the government to ensure that all international agreements adopted by Ethiopia respect the country's right to sustainable development. Although this right is contained in the Constitution as a goal and group right which does not impose a binding obligation to be enforced by courts, the state should take steps to progressively realise the right by adopting international agreements that incorporate the economic, social and environmental objectives of sustainable development in a balanced manner. In general, the government has a 'soft constitutional obligation' to respect and enforce the right to sustainable development stipulated in article 43(3) in order to protect development-related national interests, ensure legal certainty and consistency, and avoid indirect foreign interference which may occur under the disguise of international agreements and cooperation.

Factors affecting the performance of South African municipal officials: stakeholders’ perspectives

Since the inception of the democratically elected post-apartheid government, South Africa has experienced growing numbers of protests about inadequate provision of basic municipal services. Recent studies have revealed that the poor performance of municipal officials contributes towards poor municipal service delivery. This article is based on a study which used qualitative key stakeholder interviews to analyse the performance of South African municipal officials, specifically in the delivery of services. It found that the following inter-related factors were responsible for the lack of performance: an unsupportive institutional environment, negative power struggles, over-regulation, political interference, a tense and bureaucratic environment, lack of coherent management systems, absence of a culture of excellence, poor skill utilisation, poor oversight mechanisms, weak capacity to engage in collaborations, and lack of trust between councillors from different political parties. The study concludes that for South African municipalities to meet their constitutional obligations to deliver optimal basic services to the people, the government must, inter alia, invest in building the capacity of municipal officials through the development of skills and other crucial local government interventions and transformations. The municipalities should also depoliticise local government and promote non-partisan appointment of municipal officials.

Role of Green Banking on Sustainable Human Resource Management: An Empirical Study on Private Banks of Bangladesh

Banking is considered as a fundamental element to carry on different modern economic activities both in developed and developing nations all over the world. In the case of emerging nations like Bangladesh, implementing sustainable development projects to provide maximum access to different sustainable financing commodities and to exist long time are difficult for various reasons. Without the better financial environment, it would be very difficult to implement any energy related projects domestically. The main objective of this paper is to explore how green banking institutions can provide assistance for achieving sustainable human resource management for banking institutions also sustainable development in Bangladesh effectively. Sustainable development is a constitutional obligation for Bangladesh and sustainable human resource management is the front-line frontier of sustainable development through sustainable Banking. Banking industry holds a unique position with regard to sustainable development because of their intermediation online banking function between depositors and borrowers. This paper examines the current initiatives taken by the regulatory authorities of banking industry in the context of Bangladesh. The study is partially exploratory in nature and includes desk research on existing literature and content analysis to appropriately develop an understanding of the concepts and the role of banking industry towards sustainability in human resource management with special reference to Green Banking (GB) which helps to achieve e-Vacancy advertising, E-recruitment and selection, online based training and development, data warehouse to HR planning etc. The study revealed a positive response in implementing the sustainability issues in HRM by the banks in various capacities under the guidance of the Central Bank. The outcome of the paper is expected to unveil the position of the bank practitioners and policy makers about the sustainability concepts and current status sustainability initiatives taken by the regulatory authority in the banking industry of Bangladesh.

The Role of Legal Philosophy in the Protection Women From Violence

This paper aims to examine how the development of an integrated criminal justice system in handling cases of violence against women and the role of legal philosophy in it. This research is normative legal research. This study concludes that the Continental European legal system influences the legal system in Indonesia, so procedural law is an administration of justice that provides guidelines for the working of the institutions involved in the adjudication process. Gender equality during the drafting of the Criminal Procedure Code has not yet become an important issue. This has an impact on the absence of an article formulation in the Criminal Procedure Code that accommodates the special interests of women dealing with the law, both as perpetrators and victims, especially women as victims of gender-based violence, even though many women who are victims of gender-based violence generally experience trauma from the events they experience. The concept of an Integrated Criminal Justice System for Handling Cases of Violence against Women (SPPT-PKKTP) was built as an effort to support the state to be able to carry out its constitutional obligations to fulfill women's human rights in conflict with the law, especially women who are victims of gender-based violence. Considering that the operation of the Criminal Justice System (SPP) is generally regulated based on the Criminal Procedure Code, to present the SPPT-PKKTP so that the criminal justice procedure law becomes a victim perspective, advocating the SPPT-PKKTP concept into the Draft Amendment to the Criminal Procedure Code is something that needs to be done. Philosophy of law is the basic foundation of legal science; it can explain that legal philosophy greatly protects the role of human rights, which guarantees the protection of women.

Improvement of Public Control over the Use of Land Resources as an Important Aspect of Modernisation of the Ukrainian State in the XXI Century

For the rational use and protection of land, the issue of effective implementation of land reform remains relevant. An important aspect in increasing the importance of this reform is the state's interest in land use. It is the main subject of land use control and protection. However, the consolidation of provisions on land protection in the Constitution of Ukraine demonstrates that the preservation of land resources in all spheres of public relations constitutes an important component of the legal policy of Ukraine in the land sphere and the constitutional obligation to protect land not only to the state but also to citizens, legal entities, and local communities. The purpose of the study is to analyse the legislative practice of compliance with the rules of rational use and protection of land resources. The main research methods were general science - analysis and synthesis, induction and deduction. The study considers the role of the state, people, local governments in the management and control of land resources. The main statutory documents governing the use of land resources were considered. Amendments to the legislation of Ukraine in the field of land ownership were proposed to delegate the powers of control of land resources between the state and local communities. The possible expansion of the land powers of the self-government bodies of the united territorial communities was considered. The practical significance of the study lies in the possibility of using results in the development of projects to improve public control over the use of land resources.

Strengthening Communication and Information Capacities in Malawi: Case of the Malawi National Commission for UNESCO

UNESCO is the only United Nations (UN) agency to have a global network of national cooperating bodies known as National Commissions. The National Commissions are part of the overall constitutional architecture of the organization as it was conceived by its founders. Presently, National Commissions operate in all Member States of UNESCO. They constitute a truly global family which includes a vast network of stakeholders, partners and experts. They offer a comparative advantage to the organisation within the United Nations system. Article VII (1) of the UNESCO Constitution stipulates that “Each Member State shall make such arrangements as suit its particular conditions for the purpose of associating its principal bodies interested in educational, scientific and cultural matters with the work of the organisation, preferably by the formation of a National Commission broadly representative of the government and such bodies” (UNESCO 2020:15). Thus, it is the constitutional obligation of each Member State to set up a National cooperating body (National Commission) or make such institutional arrangements whose principal objective is facilitating involvement of various government Ministries, Organisations and Agencies (MOAs), institutions, universities, NGOs and individuals in the work of the Organisation. While the realisation of UNESCO’s goals is primarily entrusted in governments, the National Commissions are expected to function as an indispensable platform where national interests, ideas and cultures are represented and interact. This review describes the contribution of the Malawi National Commission for UNESCO to strengthening communication and information capacities in Malawi to fill a perceived gap in information among some stakeholders both within and outside Malawi.

Clash of powers: Did Operation Car Wash trigger a constitutional crisis in Brazil?

Brazil descended into a major political crisis after the 2013 mass demonstrations against electoral corruption and failure to fulfil constitutional obligations related to social and economic rights. This turmoil destabilized the political establishment and severely impacted the behaviour of legal institutions. The use of political mandates and institutional prerogatives, contrary to established social norms and traditional interpretations of the law, became unexceptional. In this article, Operation Car Wash, the impeachment of President Dilma Rousseff, and the process to save the mandate of her successor, President Michel Temer, are analysed as successive examples of ‘constitutional hardball’ that dominated Brazilian political and institutional life, leading the country to a period of ‘constitutional malaise’ or ‘constitutional regression.’ The main objective of the article is to understand the impact of this cycle of institutional retaliations, rooted in the clash between the political and legal establishments (represented by Operation Car Wash), on the stability of Brazilian constitutional democracy.

ARRESTS WITHOUT WARRANT: THE SCA BRINGS CLARITY Minister of Safety and Security v Sekhoto 2011 1 SACR 315 (SCA); [2011] 2 All SA 157 (SCA)

Section 40(1) of the Criminal Procedure Act 51 of 1977 provides for a number of different instances where a peace officer may effect an arrest without an arrest warrant. A perusal of the reported case law pertaining to the lawfulness of arrests without warrant reveals that section 40(1)(b) of the Act, in particular, has received much attention from the courts. In terms of this subsection a peace officer may arrest without warrant any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. It is settled law that any deprivation of freedom is regarded as prima facie unlawful. The arrestor therefore bears the onus of proving that the arrest was justified. The following jurisdictional facts must be present for a peace officer to rely on the defence created by section 40(1)(b) of the Criminal Procedure Act in cases, where it is alleged that the arrest was unlawful: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect committed an offence in Schedule 1; and (iv) the suspicion must rest on reasonable grounds. For a discussion of the differenttypes of jurisdictional facts provided for in section 40(1) see Watney. In Louw v Minister of Safety and Security Bertelsman J held, with reference to the right to personal liberty, that arresting officers are under a constitutional obligation to consider whether there are no less invasive options to bring the suspect to court than the drastic measure of arrest, thereby effectively requiring a further jurisdictional fact for successful reliance by a peace officer on the provisions of section 40(1). If a reasonable apprehension exists that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his or her arrest, or awritten notice or summons to appear in court is obtained, then the arrest would be constitutionally untenable and unlawful. Bertelsman J relied on academic opinion and an obiter remark made by De Vos J in Ralekwa v Minister of Safety and Security and held that the approach in Tsose v Minister of Justice that there is no rule that requires the milder method of bringing a person to court if it would be as effective as arrest, could no longer be acceptable in a constitutional dispensation. This approach was followed in a number of reported High Court judgments but not approved of in Charles v Minister of Safety and Security. In Minister of Safety and Security v Van Niekerk the Constitutional Court found it not to be in the interests of justice on the facts of the case before it to pronounce on the constitutional tenability of the approach in Tsose, but nevertheless held that the constitutionality of an arrest will be dependent upon its factual circumstances. Watney succinctly discusses some of the abovementioned developments. However, on 19 November 2010 the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto (2011 1 SACR 315 (SCA), also reported in [2011] 2 All SA 157 (SCA)) held that the approach of the different high courts requiring a further jurisdictional fact for the lawfulness of an arrest did nothave proper regard for the principles in terms of which statutes must be interpreted in the light of the Bill of Rights and that they have conflated the issue of jurisdictional facts with the issue of discretion. This lucid judgment brings clarity to the issue of the lawfulness of arrests without warrant.