Ministry Of Security Research Articles

The liability of churches for the historical sexual assault of children by priests

Could a church be held liable for the sexual assault of children by priests when the victims claim as adults only many years after the event? Complainants can claim damages on the basis that the church is either directly or vicariously liable for the alleged acts. If the victims rely on vicarious liability, they will have to prove that the wrongdoer was an employee of the defendant and will further have to prove that the assaults were committed within the course and scope of the wrongdoer's employment. The requirement that a priest must be an employee has in the past created a hurdle for victims, since courts in different countries have traditionally held that priests are not employees of the church as they are servants of God, subject to ecclesiastic law and not civil law. However, in John Doe v Bennet in Canada and JGE v Diocese of Portsmouth in the UK the courts have recently held that even a relationship akin to employment is sufficient to be a basis for vicarious liability. In Bazley v Curry the Canadian Supreme Court moreover extended the traditional meaning of the "course and scope of employment" by developing the "close connection" test. The court found that the acts of a warden of a children's home were so closely connected with his duties that it was fair that his employer (a charitable organisation) should be held liable for his conduct. The close connection test was followed by the House of Lords in the United Kingdom and by the South African Constitutional Court in K v Minister of Safety and Security, although in another context. Adult complainants in cases such as these will further have to prove that their claim has not expired as a result of prescription. In Canada, the UK and South Africa courts have in different ways acknowledged the fact that victims of child sexual abuse are often not able to process their claims timeously, because of psychological factors. The victims are allowed to bring their claims often decades after commission of the wrongful acts. These developments have undoubtedly broadened the vicarious liability of employers and more specifically the liability of churches.

Editorial

Editorial
 This voluminous issue consists of 13 articles and 8 notes dealing with various legal topics in South Africa and abroad. The articles commences with Ig Rautenbach’s discussion of the ever-elusive concept of proportionality in the light of the text of the South African Constitution. Mmaphuti Tuba analyses the different approaches adopted for the regulation of payment systems in a variety of legislative instruments by the European Union. Phoebe Boltondeals with the thorny issue of public tenders and the extent to which bidders must comply with tender specifications and conditions. Leentjie de Jong examines present-day family arbitration and the problems experienced with it. Daleen Millard and Birgit Kuschke evaluate the insurer’s pre-contractual duties in the light of the transparency principle in insurance law. Karin Calitz deals with the question if a church can be held liable for the sexual assault of children by a priest, when the victims claim as adults, many years after the events took place. The entitlement of a non-member spouse to the member’s pension forms the focus point of Clement Marumoagae’scontribution. Mitzi Wiese reflects on the correctness of the classification of liens into enrichment and contractual liens. Frans Viljoen and Nicholas Orago analyses the importance and implications of the individual communications procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and details some of the reasons why it would be beneficial for South Africa to accede thereto. The interplay between international law and labour law in South Africa in the context of diplomatic immunity is investigated byEzette Gericke. Cornelius Kilian and Elizabeth Snyman-Van Deventer consider section 75 in the Companies Act of 1973 (or its equivalent, section 36(2) in the Companies Act of 2008) and the topic of statutory approval for an artificial decrease or increase in the number of issued shares. Annelie Laas and Trynie Boezaart give a critical analysis of the legal measures available to curb bullying in schools. Further afield, Mtendeweka Mhango discusses the development and current status of the political question doctrine in Ghana.
 The first note by Roger Evans and Lienne Steyn deliberate on the seemingly contradictory outcomes of three high court judgments regarding the question of ownership of property which vests in the master of the high court by virtue of the Insolvency Act 24 of 1936. Philip Stevens also discusses recent judgments pronouncing on the entering of the particulars of child sex offenders into the register for sex offenders as enunciated in Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Sieg Eiselen illustrates how the Department of Trade and Industry’s proposed amendment to the definition of “electronic signature” would undermine the key principles of functional equivalence, media neutrality and party autonomy. Luanda Hawthorne deliberates on the element of exploitation in bargaining relationships between contractual parties, as highlighted in Uniting Reformed Church, De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC). Anneliese Roos and Magda Slabbert discuss the case of Isparta v Richter 2013 6 SA 4529 (GP), which dealt with defamation in the social media on the Facebook platform. Rowena Bernard considers the case of Department of Correctional Services v Police and Prison Civil Rights Union (POPCRU) 2011 32 ILJ 2629 (LAC), where the employer's application of rules relating to the dress code of employees impacted on the religious beliefs and practices of five of the staff members. Nico Buitendag and Karin van Marle reflect on Afriforum v Malema 2011 6 SA 240 (EqC), which drew considerable attention in the media and in the public discourse. In the last contribution, James Linscott analyses F v Minister of Safety and Security 2012 1 SA 536 (CC), which dealt with the “standard” test for vicarious liability.
 Editor
 Christa Rautenbach
 

Between Control and Support. The Protection of Unaccompanied Minor Asylum Seekers at Risk: The Dutch Case

AbstractDrawing on research by the Research and Documentation Centre (WODC) of the Dutch Ministry of Security and Justice (Kromhout et al., 2010), this article describes how the Dutch government tried to protect Unaccompanied Minor Asylum Seekers (UMAs) who were (at risk of becoming) victims of human trafficking by implementing “Protected Reception”. It was concluded that the three objectives of this pilot programme were met to some extent: the influx of risk groups and the number of disappearances decreased, yet there was no (immediate) increase in return migration to the country of origin, after leaving Protected Reception. An important question that was raised was how far a state can go in protecting these vulnerable young people, by (partially) limiting their freedom of movement. It was concluded that placement and stay in Protected Reception had to be qualified as a deprivation of liberty for which Dutch legislation did not offer any ground.

도서관 모바일 애플리케이션 접근성 평가에 관한 연구

본 연구에서는 안전행정부의 모바일 애플리케이션 접근성 지침을 기반으로 국내 도서관 모바일 애플리케이션의 접근성을 평가한 후, 평가결과를 도출하였다. 연구의 신뢰성을 높이고자 시각장애인과 비장애인이 교차로 접근성을 평가하였다. 연구결과 첫째, 대체 텍스트 제공은 21개 도서관(31%)만이 제공하고 있으며, 메인화면, 자료검색, 정보안내 등 모든 영역에서 대체 텍스트를 제공하는 도서관은 1개관뿐이다. 둘째, 국내 도서관 모바일 애플리케이션은 텍스트 위주의 콘텐츠가 대부분이며, 모바일 애플리케이션 지침에서 권고 또는 준수 기준으로 제시하는 자막, 수화 등의 제공, 깜박거림의 사용제한, 배경음 사용금지 등은 연관성이 떨어졌다. 셋째, 장애인 이용자가 도서관 모바일 애플리케이션을 이용하고자 할 때 필요한 대체 텍스트 제공, 초첨 이동, 운영체계 접근성 기능 지원, 누르기 동작 지원, 컨트롤 간 충분한 간격 유지, 알림 기능은 반드시 준수해야 한다. 넷째, 장애인들이 도서관 모바일 애플리케이션을 자유롭게 이용할 수 있도록 도서관 모바일 애플리케이션 접근성 기준 개발 등의 후속연구가 필요하다.

F v Minister of Safety and Security: Vicarious liability and state accountability for the criminal acts of police officers

The Constitutional Court judgement in F v Minister of Safety and Security is a ground-breaking judgement in two important respects: firstly, it finally does away with the fiction that an employee acts within the course and scope of her employment in the so-called deviation cases in the law of vicarious liability, and secondly it clarifies the normative basis for holding the state vicariously liable for the criminal acts of police officers. In this latter respect it significantly promotes state accountability for the criminal acts of police officers.

Voluntary Unemployment and the UK Social Policy Literature

The British coalition government's Work Programme is the latest manifestation of a trend dating back to the 1980s, whereby the claiming of unemployment benefit (now to be called Universal Credit, formerly Jobseeker's Allowance) has become contingent upon meeting more and more conditions, while the benefit sanctions facing those who do not comply have become stiffer and stiffer. Underpinning these policies is mainstream politicians' belief that many would rather live on benefits than enter employment. Indeed, both Iain Duncan Smith (2010), the present UK Social Security Minister, and John Hutton (2006), one of his recent Labour predecessors, have openly endorsed this view. But are they correct? According to academic research, which has largely taken place within the discipline of social policy, the answer is clearly ‘no’. In fact, a substantial empirical literature has repeatedly concluded that unemployed benefit claimants possess the same work values as everyone else and that the vast majority both want paid work and actively search for it. In this discussion piece I critically review this UK social policy literature on unemployment. I argue that, in an academic discipline dominated by the political left, mainstream authors have routinely failed to respond to important points raised mainly by conservatives about unemployed people's attitudes to employment and their job search behaviour. In particular, I suggest that these mainstream authors have failed properly to investigate whether individuals could do more to avoid living on unemployment benefits, and that they have overlooked the views of people who have considerable experience dealing with unemployed welfare claimants. I start by discussing the mainstream ‘quasi-Titmuss’ school in UK social policy, before examining in detail a notable recent example of that school's literature. This is the book Poverty and Insecurity: Life in ‘Low Pay, No Pay’ Britain (Shildrick et al. 2012). While this book does include interviews with employers and people employed in the welfare-to-work industry, it nevertheless draws firm conclusions that are clearly contradicted by what these respondents said.

Situação da Rede Nacional de Atenção Integral em Saúde do Trabalhador (Renast) no Brasil, 2008-2009

Este artigo apresenta um recorte da pesquisa "1º Inventário de Saúde do Trabalhador 2009", desenvolvida pela Coordenação Geral de Saúde do Trabalhador do Ministério da Saúde. Buscou-se identificar lacunas e potencialidades da implantação da Rede Nacional de Atenção Integral em Saúde do Trabalhador (Renast), focando as ações de Vigilância em Saúde do Trabalhador (Visat) e variáveis estruturantes dos Centros de Referência em Saúde do Trabalhador (Cerest), como o financiamento, a equipe profissional e a participação dos trabalhadores. Analisaram-se as atividades de Visat e destacaram-se as articulações dos Cerests intra e intersetoriais, entre elas instâncias regionais da Previdência Social e universidades, além das internas ao SUS, sobretudo com instâncias da Vigilância em Saúde. Os resultados demonstraram que as ações de Visat estão acontecendo na maioria dos Cerests (58,4%) e que há uma adequação estrutural e da equipe, além de relativa participação dos trabalhadores nas Comissões Intersetoriais de Saúde do Trabalhador (CIST) dos Conselhos de Saúde. São apresentadas considerações para a construção de parâmetros para futuras pesquisas e recomendações visando ao fortalecimento da Renast. Destaca-se a necessidade de intensificação da capacidade de análise das informações decorrentes das ações de vigilância e do registro de casos.

Reformas policiales y narrativas institucionales en argentina: renombrando escuelas de policía

Fil: Sirimarco, Mariana. Universidad de Buenos Aires. Departamento de Ciencias Exactas; Argentina. Consejo Nacional de Investigaciones Cientificas y Tecnicas; Argentina

Editorial: Forthcoming Issues

Special IssuesNext year, 2014, it will be 30 years since the first Business-to-Customer online shopping occurred (i.e., Michael Aldrich teleshopping; Gateshead SIS/Tesco as merchant and Mrs. Snowball as the first online home shopper; (Site 1), and 20 years since the first web-based online ordering service was launched. In the same year, 1984, CompuServe introduced the Electronic Mall in the USA and Canada (Site 2), the first comprehensive electronic commerce service. Ten years later (i.e., 1994), once the World Wide Web was created, Pizza hut started offering online ordering through its webpage. The same year, the first online banking service was offered.Therefore, we have a good reason to call for papers for a special issue to discuss and share the state-of-the-art in electronic commerce. This special issue of Electronic Commerce aims to provide an overview of the state-of-the-art in the field of electronic commerce discussing research contributions that have helped to develop the various fields of Electronic Commerce over the last 20 to 30 years, and outlining the challenges for future research. We invite high quality submissions focusing on all aspects of electronic commerce, including both business and technology issues.Areas of interest include, but are not restricted to different topics in: Business-to-Business; Business-to-Consumer; Business-to-Government; Consumer-to-Consumer; and Mobile Commerce. However, all submissions should consider the presentation of the state-of-the-art through different review methods such as systematic literature review, meta-analysis, network approach towards review, etc., aiming to present and discuss the level of knowledge and development in electronic commerce achieved in the last 30 years, and to propose a well-motivated agenda with the most important challenges for future research.This issue will be edited by Dr. Narciso Cerpa and Dr. Harry Bouwman. Full paper submission deadline: 1st of November 2013. Please see the Call for Papers for more information.To respond to suggestions of our readers and to needs of current society, we have planned another important special issue on a current topic, Innovation through Open Data, which will be guest edited by Prof. Dr. Marijn Janssen (Delft University of Technology), Assoc. Prof. Dr. J. Ramon Gil-Garcia (CIDE), Dr. Natalie Helbig (Center for Technology in Government / SUNY Albany) and Anneke Zuiderwijk (Dutch Ministry of Security and Justice). Publication: April 2014.The December 2013 issue will be dedicated to Cloud Computing and Electronic Commerce and will be edited by Dr. …

State (Public Authority) Liability Ex Delicto (2)

Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938(CC)

The Supreme Court of Appeal Pronounces Upon Arrest Without a Warrant and the Bill of Rights

Recently, the author stated the six requirements for the lawfulness of an arrest without a warrant by a police officer as follows (see Neethling 'Arrest without a warrant and abuse of right' 2010 TSAR 821–822 and references cited there): Firstly, the person to be arrested must commit an offense or attempt to commit an offense in the presence of a police officer, or he must reasonably be suspected by a police officer of having committed an offense listed in the Criminal Procedure Act (see s 40(1)(a) and (b) of Act 51 of 1977); secondly, the purpose or object of the arrest must be to bring the arrestee before a court to be tried for the alleged offense; thirdly, the arrest must be necessary to assure the appearance in court of the person to be arrested; fourthly, the body of the person to be arrested must be actually touched unless he submits to custody, or, if the circumstances so require, he must be forcibly confined; fifthly, the police officer, at the time of effecting the arrest or immediately thereafter, must inform the arrestee of the reason(s) for his arrest; and finally, the arrestee must be taken to a police station as soon as possible. In the meantime the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto 2011 1 SACR 315 (SCA); [2011] 2 All SA 157 (SCA) had questioned the validity of the third requirement, namely that the arrest must be necessary to assure the appearance in court of the person to be arrested.

Is the Maritime Domain a Security Vulnerability To Be Exploited During London 2012 and Beyond?

The United Kingdom will welcome the world when London hosts the Olympic and Paralympic Games for 44 days in the summer of 2012. Fourteen thousand athletes from 205 countries will participate in eve...

The Accession of the European Union to the ECHR: A Gift for the ECHR’s 60th Anniversary or An Unwelcome Intruder at the Party?

This article outlines the European Union’s gradual progression towards a legal obligation to observe human rights: a series of stops and starts from Brussels to Strasbourg with a starring role for Luxembourg and significant supporting roles for Berlin and Karlsruhe. This commitment towards human rights will acquire a new dimension. The Lisbon Treaty requires the European Union to accede to the European Convention on Human Rights (ECHR). With the entry into force of the 14th Protocol to the ECHR, Strasbourg too is now ready to accept the EU as a party to the Convention. But the real work is ongoing: the negotiations about the modalities of the accession are underway. This article looks at the main subjects for discussion. Is the EU, as a new party to the ECHR, the ultimate anniversary gift for Strasbourg, or is it a potentially troublesome guest at the party? I. Background: the EU’s Gradual Progression towards a Legal Obligation to Observe Human Rights The debate about the desirability of the European Union (or its precursors) being legally bound to respect human rights has been ongoing for decades. It is not very strange that in 1957, when the European Economic Community was founded, human rights were not at the forefront of people’s minds. Previous initiatives to establish a more general European Political Community had died a quiet death in 1954, when France’s National Assembly decided not to pursue this avenue. Once these initiatives had collapsed, the negotiations focused purely on economic cooperation. This is clearly reflected in Article 2 of the EC Treaty, which states that the Community’s objective is to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, a high degree of convergence of economic performance, a high level of employment, sustainable and non-inflationary growth, a high degree of competitiveness, and so forth. None of these objectives leads directly to think of the need to * Professor Martin Kuijer is senior adviser on human rights to the Minister of Security and Justice and professor of human rights at the VU University Amsterdam. This article reflects his personal views; the views set forth in § 4, in particular, do not necessarily reflect the official position of the Dutch government. A Dutch version of this article was published previously in Nederlands Tijdschrift voor Mensenrechten 2010, pp. 932-947. 1 See e.g. R.A. Lawson, Het EVRM en de Europese Gemeenschappen: Bouwstenen voor een aansprakelijkheidsregime voor het optreden van internationale organisaties, Deventer: Kluwer, 1999.

COUNTERBLAST: Another Case of Old Wine in New Bottles? The Coalition's Misguided Strategy to Reduce Benefit Fraud

The Coalition recently published its first strategy aimed at reducing benefit and tax credit fraud (Department for Work and Pensions (DWP) 2010). This was preceded by the obligatory spin and rhetoric which accompanies any official announcement peddling the same message that ‘Benefit and tax cheats face new clampdown’ (Asthana 2010, p.1). Whilst refreshingly incorporating measures to tackle the spiralling losses caused by tax credit fraud, the overall impression given is yet another case of old wine in new bottles. This accusation is levelled on the basis that the main substance of the strategy is a recycling of the tactics used by the Tories during the ‘Thatcher years’. The feeling of de´ja` vu is also generated by an unsavoury undercurrent that this strategy is yet again aimed at the ‘undeserving scrounging poor’ (Cook 1989, p.127). Furthermore, similar to the triumphant unveiling of the Coalition’s plans, back in 1980, Social Security Minister, Reg Prentice, also sought to gain political mileage out of welfare fraud by launching ‘a big campaign’ (Donnison 1982, p.210). The accusation that benefit fraud policy in the 1980s procured public opinion and directed it against welfare recipients (Cook 1989, p.137) may also be levelled against the Coalition, which conveniently announced its benefit fraud strategy shortly before George Osborne unveiled the Spending Review. I suggest this was a calculated attempt to deflect the blame for the bleak times ahead away from the government and towards ‘fiddling’ impoverished welfare recipients.

POLICE MISCONDUCT AND DELICTUAL LIABILITY: A DISCUSSION ON DEVELOPING VICARIOUS LIABILITY JURISPRDUENCE THROUGH A FOCUS ON THE K AND F CASES

Despite progress made by South African courts with respect to the ‘sufficiently close connection’ requirement to establish vicarious liability, most notably in the judgment of the Constitutional Court (CC) in K v Minister of Safety and Security, the question remains whether our judges have accepted this ground-breaking precedent and apply it in the spirit it was intended. In focusing on the minority dissenting judgment in F v Minister of Safety and Security (F) written by Yacoob J (with Jafta J concurring), I address wider issues that exist with respect to the sufficiently close connection requirement of vicarious liability as established by K. As part of this discussion, I also proceed to: (1) set out the material facts of F; (2) give an overview of the current law applicable to vicarious liability and show where F fits into that framework; (3) briefly discuss all the judgments of the Constitutional Court with respect to the framework of vicarious liability as provided; and (4) offer a critique of the minority dissenting judgment with the aim of making more general comments about the sufficiently close connection requirement in the case of (standby duty) policemen.

My Tea Party, Your Mob, Our Social Contract: Freedom of Assembly and the Constitutional Right to Rebellion in Garvis V Satawu (Minister For Safety & Security, Third Party) 2010 (6) Sa 280 (Wcc)

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. The United States of America Declaration of Independence, 4 July 1776

Reflections on post-apartheid being and becoming in the aftermath of amnesty : Du Toit v Minister of Safety and Security

In this note I discuss the case of Du Toit v Minister of Safety and Security (Du Toit). Also, although my main focus will fall on Du Toit, I refer to the recent defamation case of Robert McBride briefly. Both these cases disclose a few of the many complexities of the 'intersection' between an apartheid past and a future that is post-apartheid, particularly post-apartheid being or rather becoming. Beyond illuminating the wider questions of post-apartheid being, becoming and subjectivity, these cases also contribute to something more specific, namely the becoming of a post-apartheid jurisprudence.

Precedent and the Constitutional Court

The purpose of this piece is to consider the role of precedent in the development of our constitutional jurisprudence and to seek to discern some of the attitudes of the Constitutional Court to it - primarily through the lens of Gcaba v Minister for Safety and Security and Others.

L'UmanitÀ di Achille Ardigň

- I met Achille Ardigň at the establishment by the Minister Foschi (Minister of Labor and Social Security) of the National Commission on the issues of family, when I was still a young researcher of IRLES (Ligure Insitut for Economic and Social research). I was appointed in the National Commission Institute on Family in the group that had to analyze the evolutionary trends in the 80's of public social policies. Working with Prof. Sgritta of the Sapienza University in Rome, with Prof. Alba Dini of the Pontifical Gregorian University and Livio Labor chairman of the ACLI, I had to study the theories of Ardigň and Donati. Hence the encounter with Ardigň was decisive. From the methodological point of view: he taught me the need to combine several disciplines, to find a common point of view, with no hegemonic pretension.Keywords: family, maternity, Welfare, network, coresponsibility, social value.Parole chiave: famiglia, maternitÀ, Welfare, rete, corresponsabilitÀ, valore sociale.

David and Goliath: Georgia and Russia’s Coercive Diplomacy

The military conflict between Georgia and Russia over the separatist region of South Ossetia in August 2008 surprised many within the international community and reinforced growing concerns about a...