Whistle Blowers: When are the brave of heart protected?

JUNE 2007: South Africa: No one likes a tattle-tale. They are nosy and obnoxious and in general just cause trouble for unsuspecting and innocent people. Some people may think that the Protected Disclosures Act ("the PDA")1 provides protection for tattle-tales.

This is however not true. The PDA only provides protection for those who honestly wish to expose criminal and other irregular conduct in the workplace. In other words, the PDA protects the brave of heart. I term them the brave of heart because they are likely to fall out of favour with their employers if they blow the whistle on criminal and other irregular behaviour, and may thus be subjected to disciplinary action and other occupational detriments. (Read more...)

Big Brother - Access to Employee Information

The right to privacy protects access to personal matters and the obtaining, dissemination and use of information in respect of such matters. It confers a protected interest (“privacy”) and provides for certain duties of those bound by the right, ie that the property and persons of those exercising the right may not be searched, their possessions may not be seized and the privacy of their communication may not unreasonably be infringed.

The right to privacy is not absolute. (Read more...)

Making Dishonest Employees Pay : Section 37D of the Pension Funds Act, 1956

Earlier this year Ernst & Young released the results of its eighth international global survey entitled “Fraud, the Unmanaged Risk”. Ernst & Young interviewed nearly 400 CEOs of companies ranging from multinationals to small-medium enterprises in more than 30 countries.

The survey revealed that approximately 55% of the companies interviewed suffered a significant fraud in the last 24 months. What surprised me was the finding that the main perpetrators of the frauds were company management or employees. In many cases the fraudster was a trusted, long-serving employee.

In order to prevent fraud, employers need not only proactively identify and manage fraud risks, but it is just as important for an employer to act swiftly and decisively when a fraud is discovered, so that the appropriate message is filtered through the work force. (Read more...)

Financial Intelligence Centre Act 38 0f 2001 - from Paper to Practice

South Africa's readmission to the international arena, the deregulation of international markets and the advancement in communication technology has resulted in a dramatic escalation in organised crime in South Africa.

It has been estimated that as much as 19 billion US dollars in dirty money is laundered each year in South Africa. Over 1000 suspicious transactions have been reported to the authorities since 1998, without a single prosecution under the Prevention of Organised Crime Act 1999 ("POCA"), which criminalized money laundering and racketeering. That South Africa is in need of effective measures to prevent money laundering is clear. (Read more...)

When witnesses lie in court

It sometimes happens that a party to litigation fraudulently presents his evidence to the court and, relying on the fraudulent evidence presented to it, the court then makes its decision. In extreme cases the evidence may have been deliberately fabricated (for example where a letter is forged) or, in more subtle cases, a witness may purger himself (by lying to the court about what happened). Even the most undeveloped sense of justice would probably see the argument for having a judgment obtained in the first scenario rescinded. But the argument for rescission in the second scenario is less obvious – given that witnesses lie in court every day and that there is nothing unusual about this. (Read more...)

Directors' Duties & Responsibilities and Organisational Ethics

It is the directors’ prime duty to act at all times in the best interests of that company of which he or she is a director

• not his or her own personal interests

• not the interest of any shareholder which he or she may represent

• but the interests of the company only

Four main duties arise out of this prime duty: (Read more...)

Access To Information

The Promotion of Access to Information Act, 2000 (“the Act”) gives effect to the Constitutional right of access to information and creates the statutory framework within which a person may apply for access to records from any private or public body.

Against, what the preamble calls, the backdrop of a secret and unresponsive culture characterised by human rights violations and abuses the Act seeks to promote transparency and accountability in public and private bodies. (Read more...)

Intercepting communications

How private are your telephone calls and can they be recorded without your knowledge?

Most of us are aware that we have a fundamental right to privacy and that this right is constitutionally protected. We are not always aware, however, how far this right will go to protecting what we deem to be private communications and in what circumstances our right to privacy may be ousted.

The Constitution states at s 14 that ‘everyone has the right to privacy which includes the right not to have … the privacy of their communications infringed’. The Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (See 2005 (Dec) DR 38 – Editor) (which came into effect on 30 September 2005) (the Act) repealed the Interception and Monitoring Prohibition Act 127 of 1992 (the IMP Act) and provided more specific parameters in relation to the right to have private communications as set out in the Constitution.

The Act provides for a general prohibition of the interception of communications at s 2 where it states that

‘no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission’. (Read more...)

Taking of evidence abroad

The purpose of this article is to explain the means by which evidence in civil and commercial matters can be obtained by South African litigants from foreign countries and by foreign litigants from South Africa, and also to highlight the difficulties faced by South African and foreign litigants in obtaining such evidence. (Read more...)

An aspect of the promotion of Access to Information Act - the manual

Section 32 of our Constitution provides that everyone has the right of access to any information held by the State, and further, that any person has the right of access to information held by another person where such information is required for the exercise or protection of any rights. The Promotion of Access to Information Act 2 of 2000 ("the Act") was promulgated to give effect to s32 of the Constitution. S51 of the Act provides that the head of a private body is to compile a manual which is to include categories of information held by the private body. In this article, we discuss these categories of information, and whether a private body will be required to disclose such information to a requester.

The Act lists a number of grounds of refusal which a private body may apply to prevent disclosure of information. (Read more...)

Insider Trading Act, 1998

A committee broadly representative of the securities industry under the chairmanship of Mr Mervyn King ("the Task Group") was appointed in 1995 at the instance of the Minister of Finance to investigate the adequacy of our law on insider trading (which appeared, essentially, in section 440F of the Companies Act, 1973). The Task Group reported finally in October 1997 and its recommendations formed the basis for the enactment of the Insider Trading Act, 1998 ("the Act") which came into force on 17 January 1999.

Scope

The Act covers trading in every kind of security or financial instrument. It is, however, limited to those securities and financial instruments that are dealt in on a regulated market. The market might be a domestic or a foreign one and it does not matter that the actual dealing might take place over the counter. (Read more...)

In this article I will suggest some of the sources of error that can lead to this type of situation. (Read more...)

The prosecutor is a critical role-player in the criminal justice system. The prosecutor has been described as the gatekeeper in the criminal justice process. In the exercise of his or her functions the prosecutor has to, at various stages in the criminal justice process, make decisions that have a profound impact on the effective functioning of the criminal justice system. These include, amongst others, the decision whether to institute criminal proceedings against a suspect; the decision whether to withdraw charges or to stop the prosecution, the decision whether to appose an application for bail or release by an accused who is in custody following arrest, the decision about which crimes to charge an accused with and in which court the trial should proceed, the decision whether to accept a guilty plea tendered by an accused the decision about which evidence to present at the trial, the decision whether to appeal, etc. (Read more...)