An overview of the statutory duty to cooperate and collaborate between the South African Reserve Bank and other financial roleplayers under the Financial Sector Regulation Act 9 of 2017

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

An overview of the statutory duty to cooperate and collaborate between the South African Reserve Bank and other financial roleplayers under the Financial Sector Regulation Act 9 of 2017

Author: Howard Chitimira & Sharon Munedzi

ISSN: 1996-2185
Affiliations: Research Director, Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University; Postdoctoral Fellow Research Fellow, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 423 – 439
https://doi.org/10.47348/SAMLJ/v36/i3a4

 Abstract

The Financial Sector Regulation Act ( FSR Act ) established a statutory duty to cooperate and collaborate between the South African Reserve Bank ( SARB ) and other financial roleplayers. Such cooperation and collaboration are imperative for the protection of financial stability and the promotion of market integrity in South Africa. The FSR Act confers an express mandate on the SARB to cooperate and collaborate with other financial roleplayers in fulfilling its financial stability mandate. This Act also mandates other financial roleplayers such as the Prudential Authority, the Financial Sector Conduct Authority, the National Credit Regulator and the Financial Intelligence Centre to cooperate and collaborate with the SARB and with each other to fulfil their duties and functions. To this end, the article evaluates the effectiveness of a prescriptive approach to regulatory coordination and the measures introduced by the FSR Act to foster regulatory coordination in the financial sector. Thereafter, some recommendations are made to enhance the adequacy and effectiveness of the available measures that could be implemented to enforce compliance with the statutory duty on the SARB to cooperate and collaborate with other financial roleplayers.

Towards the recognition of financial inclusion as a fundamental socio-economic right in selected SADC countries

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

Towards the recognition of financial inclusion as a fundamental socio-economic right in selected SADC countries

Author: Howard Chitimira & Luck Mavhuru

ISSN: 1996-2185
Affiliations: Research Professor, Research Director and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University; Postdoctoral Research Fellow, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 440 – 456
https://doi.org/10.47348/SAMLJ/v36/i3a5

 Abstract

Most countries recognise socio-economic rights as fundamental rights. These rights enable people to access basic necessities for them to live a dignified life. Such necessities include adequate housing, food, healthcare, education, social security, and water. Socio-economic rights are recognised as human rights in several international human rights instruments such as the 1948 Universal Declaration of Human Rights (‘UDHR’) and the 1966 International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Socio-economic rights are also protected in national constitutions such as the South African, Zimbabwean, Namibian, and Indian Constitutions. Governments, private individuals, and regulatory bodies can be held accountable if they do not respect, protect, and promote socio-economic rights. It is important to note that financial inclusion is not expressly recognised as a socio-economic right despite its crucial role in enabling people to lead dignified lives. Both the UDHR and the ICESCR do not expressly acknowledge it as a human right. The same is true for the South African, Namibian and Zimbabwean Constitutions. In this contribution, it is submitted that peoples’ socio-economic rights are not respected if they continue to be financially excluded. Furthermore, it is difficult to exercise the rights to access to food, shelter, education, and health unless one has adequate access to financial services. Access to basic financial services through financial inclusion empowers the poor to enjoy other socio-economic rights.

A critical assessment of the regulation of cryptocurrency in Nigeria

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

A critical assessment of the regulation of cryptocurrency in Nigeria

Author: Isau Ahmed Olatunji

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Business and Private Law, Faculty of Law, Kwara State University
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 457 – 481
https://doi.org/10.47348/SAMLJ/v36/i3a6

 Abstract

Over the years, there has been a tremendous increase in the use of cryptocurrency as a virtual means and form of payment worldwide. However, in recent years, there has been a steady increase in the use of cryptocurrency for illicit and criminal activities such as money laundering, financing terrorism and other illegal activities. In addition, the virtual nature of cryptocurrency creates opportunities for tax evasion thereby constituting a serious tax challenge for countries. This makes it necessary for countries to put in place measures to regulate cryptocurrency to prevent its use for illicit and criminal activities. Various countries have established certain measures and legislations to regulate the use of cryptocurrency. The objective of this article is to examine nature of cryptocurrency as well as its regulation in some selected jurisdictions. The paper will also examine how cryptocurrency is currently regulated in Nigeria.

The role, relevance and effect of the strike in the 4IR Age of Auto and Robots: A South African Perspective

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

The role, relevance and effect of the strike in the 4IR Age of Auto and Robots: A South African Perspective

Authors: Nozipho Gwala & Lux Kwena Kubjana

ISSN: 1996-2185
Affiliations: LLB student, University of South Africa; Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 482 – 494
https://doi.org/10.47348/SAMLJ/v36/i3a7

 Abstract

A strike has always been an integral part of effective collective bargaining, and the only weapon in the hands of employees against an employer. Not only is a strike believed to be to collective bargaining what an engine is to a vehicle, but it is also something without which, collective bargaining would become collective begging. These observations highlight a premium put on a strike and clarify its critical role and relevance in the realisation of effective collective bargaining. This article explores the role, relevance, and effect of the strike in the Fourth Industrial Revolution (‘4IR’) context. The article understands the link between labour intensity, as the employees’ potential source of strength, and effective collective bargaining. And then, it poses the question: Is this the beginning of the end of the strike, or an opportunity for the reinvention of collective bargaining? While the article appreciates innovation and the changing employment landscape brought about by the 4IR, it questions how these changes would affect the role, relevance, and effect of the strike when full automation is rolled out. The purpose of the article is to explore alternatives to fill the vacuum likely to be left by the erosion of the strike, owing to automation.

Putting the unconstitutionality of deemed discharge behind us? A review of recent developments on deemed dismissals

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

Putting the unconstitutionality of deemed discharge behind us? A review of recent developments on deemed dismissals

Author: Vuyo Ntsangane Peach

ISSN: 1996-2185
Affiliations: Associate Professor, University of South Africa
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 495 – 515
https://doi.org/10.47348/SAMLJ/v36/i3a8

 Abstract

Deemed dismissal or discharge, alternatively called termination of employment by operation of law (ex lege) is one of the most disputable issues in constitutional labour law. A termination of employment by operation of law arises when an employee absents himself or herself from his or her official duty for a period exceeding 30 days. Significantly, procedural safeguards against unfair dismissal are attenuated because the affected employee is given a semblance of a hearing. Moreover, the employee is asked to show cause why he or she should not be discharged. Since the authorities are clear that where dismissal is precipitated by the operation of law and there is no right to a hearing, deemed discharge unarguably represents far-reaching encroachment on the constitutional guarantee to fair labour practices and the statutory right not to be unfairly treated. An employee who is deemed dismissed has a restricted access to the purpose-built labour dispute resolution forums established by the Labour Relations Act 66 of 1995. Although the uncertainties concerning the unconstitutionality of the deeming dismissal provisions were cast aside in Phethini v Minister of Education (2006) 27 ILJ 477 (SCA), the jurisdictional complexities displayed in recent cases such as Western Cape v Weder and MEC for Dept of Health [2014] 4 BLLR 393 (LC), Ramonetha v Department of Roads and Transport, Limpopo [2018] 1 BLLR 16 (LAC), Minister of Defence and Military Veterans v Mamasedi 2018 (2) SA 305 (SCA), Maswanganyi v Minister of Defence and Military Veterans (2020) 41 ILJ 1287 (CC) and Masinga v Chief of the SANDF [2022] ZASCA 1 (5 January 2022) compel a rethink of the constitutionality of the deemed discharge provisions.