Appraisal of Financial Inclusion in South Africa: Proposing the Agent Banking Model Implemented in Malaysia

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Appraisal of Financial Inclusion in South Africa: Proposing the Agent Banking Model Implemented in Malaysia

Author: MG Van Niekerk

ISSN: 1996-2185
Affiliations: Senior Lecturer, University of Limpopo
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 447 – 469

Abstract

Financial inclusion is a burning issue around the world, especially in emerging markets such as South Africa. Its importance lies in the fact that it will effectively reduce inequality in this country in the long term. This contribution traces formal financial inclusion measures in South Africa. The transformation to financial inclusion after 1994 increased inclusion from 61 per cent in 2004 to 93 per cent in 2018.  The article highlights the fact that when people use bank accounts as mailboxes (where all money is withdrawn as soon as it comes into the account), some issues need to be addressed to ensure that they are properly banked. Indications are that only 48 per cent of all adults in South Africa can be considered to be properly banked. In South Africa, financial inclusion was explicitly legislated for the first time by the Financial Sector Regulation Act 9 of 2017. This article assesses the role of agent banking — the provision of financial services through agents or third-party intermediaries on behalf of financial institutions — in increasing financial inclusion in Malaysia. The Malaysian agent banking model could be beneficial to South Africa’s efforts to ensure that more people have access to a bank account that they can use regularly. 

Case Notes: ‘Semantic Gyrations’ – When are Naartjies Oranges? Beneath the Surface of Absa Bank Limited v CSars

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Case Notes: ‘Semantic Gyrations’ – When are Naartjies Oranges? Beneath the Surface of Absa Bank Limited v CSars

Authors: Teresa Pidduck and Sumarie Swanepoel

ISSN: 1996-2185
Affiliations: University of Pretoria, Department of Taxation; University of Pretoria, Department of Taxation
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 470 – 495

Abstract

None

Business judgment rule to directors against personal liability for breaches of some of their duties

by | May 22, 2022 | JCCL, JCCL V7 I1

Business judgment rule to directors against personal liability for breaches of some of their duties

Author: Xolisa Beja

ISSN: 2521-2575
Affiliations: LLM candidate, University of Witwatersrand
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 1, 2021, p. 1 – 35
https://doi.org/10.47348/JCCL/V7/i1a1

Abstract

This article examines the extent to which s 76(4)(a) of the Companies Act 71 of 2008 protects directors against personal liability for breaches of their duties to act in the company’s best interests, with due care, skill and diligence. The essential substantive elements of s 76(4)(a) create (as a minimum) a business judgment rule. Generally, that rule provides a director with a defence against liability for a breach of his duty of care, skill and diligence if, when he acted (or omitted to act), he did so reasonably, honestly, with no self-interest and in the interests of the company. In analysing s 76(4)(a) as an embodiment of features of a traditional business judgment rule, this article briefly discusses how a similar rule in Australia is drafted and applied in practice by their courts. The article concludes that s 76(4) (a) creates protection for directors that is more than the protection that is provided by a traditional business judgment rule. This conclusion is based on the extensive nature and scope of authority and powers which s 66(1) of the Act grants to directors. In the same breath, however, s 76(4)(a) manages to make directors appropriately accountable to the company’s stakeholders, in keeping with some of the fundamental objectives and purposes of the Act.

Guarding against retirement funds’ arbitrary discretion when allocating death benefits: The urgent need for statutory guidelines

by | May 22, 2022 | JCCL, JCCL V7 I1

Guarding against retirement funds’ arbitrary discretion when allocating death benefits: The urgent need for statutory guidelines

Author: Motseotsile Clement Marumoagae

ISSN: 2521-2575
Affiliations: Associate Professor, School of Law, University of the Witwatersrand and Visiting Associate Professor, Faculty of Law, National University of Lesotho
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 1, 2021, p. 36 – 62
https://doi.org/10.47348/JCCL/V7/i1a2

Abstract

This article discusses the enormous power enjoyed by retirement funds’ boards to implement or reject deceased members’ clearly expressed wishes in their nomination forms or wills when distributing their death benefits. It demonstrates that boards are vested with wide discretion to apportion death benefits which, at times, is difficult to justify. Further, this leads boards to make incorrect allocations of death benefits by paying some beneficiaries less than others, completely excluding some from the distribution or allocating the entire benefit to one beneficiary. It argues that apart from requiring boards to honestly, rationally and reasonably allocate death benefits in line with the material facts placed before them, there is a need for legislative guidance that can effectively guide discretion exercised by boards of retirement funds when allocating death benefits.

Tax obligation and state legitimacy: A critique of the disconnect between state demands and people’s desiderata

by | May 22, 2022 | JCCL, JCCL V7 I1

Tax obligation and state legitimacy: A critique of the disconnect between state demands and people’s desiderata

Author: Kareem Adedokun

ISSN: 2521-2575
Affiliations: Associate Professor, Department of Business and Private Law, Kwara State University, Malete, Kwara, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 1, 2021, p. 63 – 79
https://doi.org/10.47348/JCCL/V7/i1a3

Abstract

The payment of taxes is one of the obligations recognised under any civil rule system. This informs why Nigeria, in its practice of constitutional democracy, emphasises prompt payment of tax as a basic duty of citizens to foster development, economic growth, and building. There is a fiscal contract through which citizens accept and comply with taxes in exchange for government’s effective services, the rule of law and accountability. It is a mutually beneficial process whereby citizens will receive improved governance while the government receives larger, more predictable, and more easily collected tax revenues. However, there is an obvious reversal of the fundamental obligations of the government, resulting in the sharp contrast between the state demands and people’s needs. This work, using doctrinal and survey sampling methods, critically examines the accountability and responsiveness of the government in its fiscal contract with the people, by embarking on a review of the correlation between the government’s obligations of good governance and the citizens’ civic duties of prompt payment of taxes. The review finds that the Nigerian tax system does not have a positive effect on nation-building as there is an apparent infrastructural deficit that impugns the taxpayers’ and investors’ confidence in the integrity of the tax system. Besides, there is no state machinery for an effective inclusive tax dialogue. Consequently, the initiation of the process of constructive engagements with the government is suggested to achieve an inclusive tax bargain which it is hoped will usher in a regime of responsive governance for sustainable development.

The need to address the challenges regarding the transfer of assets between occupational retirement funds operating in the municipal sector

by | May 22, 2022 | JCCL, JCCL V7 I1

The need to address the challenges regarding the transfer of assets between occupational retirement funds operating in the municipal sector

Author: Tshepiso Tshiamo Rasetlola

ISSN: 2521-2575
Affiliations: Associate at Fasken (incorporated in South Africa as Bell Dewar Inc)
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 1, 2021, p. 80 – 103
https://doi.org/10.47348/JCCL/V7/i1a4

Abstract

There are several industries where employers participate in more than one retirement fund, such as the municipal sector. Retirement funds that operate in such industries continually try to increase their membership leading to fierce competition for members. They often use their rules to attract new members while ensuring that they do not lose members who are currently paying contributions to them. These rules usually link membership of funds with the tenure of employment with participating employers. This article examines the legal framework that regulates the rivalry between retirement funds that operate within the same sector or are linked to the same employer. It assesses whether employees’ rights to freely associate with the retirement fund of their own is limited by retirement funds’ rules that ‘lock’ them into retirement funds that they joined upon their employment. This article highlights that the current legislation does not adequately deal with the voluntary transfer of assets between rival funds at the instance of the member. This article argues for the establishment of a legal framework that will adequately regulate the rivalry relating to retirement funds’ membership in sectors where the employer can participate in more than one retirement fund.

Taxation

by | May 2, 2022 | YSAL, YSAL V2

Taxation

Author Robert Williams

ISBN: 978 1 48513 911 9
Affiliations: BA LLB (Cape) LLM (London) H Dip Tax (Wits) PhD (Macquarie), Professor Emeritus in the School of Law, University of KwaZulu-Natal, Pietermaritzburg.
Source: Yearbook of South African Law, Volume 2, p. 1096

Notes: The legitimacy of the South African Consumer Goods and Services Ombud’s Code of Conduct: An analysis of Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Notes: The legitimacy of the South African Consumer Goods and Services Ombud’s Code of Conduct: An analysis of Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd

Author: Tshepiso Scott & Obakeng van Dyk

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, University of Pretoria; Independent Researcher
Source: South African Law Journal, Volume 139 Issue 2, p. 259-273
https://doi.org/10.47348/SALJ/v139/i2a1

Abstract

Alternative dispute resolution is one of the mechanisms envisaged by the Consumer  Protection Act 68 of 2008 to provide consumers with access to cost-effective and  speedy redress of consumer disputes. Accredited industry ombuds are one of the fora  that give effect to this purpose. However, industry participants are not always willing  participants, and may wish to challenge the legitimacy of such fora, particularly where  the relevant forum is funded by these industry participants. This makes it challenging  to give effect to the provisions of any applicable codes of conduct, and also frustrates the  consumer’s pursuit for redress. These issues came to the fore in Consumer Goods  and Services Ombud NPC v Voltex (Pty) Ltd [2021] ZAGPPHC 309.  In this matter, the Consumer Goods and Services Ombud sought a declaratory order  from the court, confirming that its code of conduct was legitimate. The judgment is  significant as it has an impact on the enforcement of consumer rights by this ombud,  and has wider implications for other current and future accredited industry ombuds. 

Notes: Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Notes: Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala

Author: Rorisang Matlala

ISSN: 1996-2177
Affiliations: Junior Lecturer in Law, North-West University
Source: South African Law Journal, Volume 139 Issue 2, p. 274-285
https://doi.org/10.47348/SALJ/v139/i2a2

Abstract

In S v Tshabalala, the Constitutional Court considered an appeal about whether  accused persons who were present at a rape scene, but who did not participate in the  crime and who neither aided nor abetted the perpetrators, could be found guilty of  rape. The court decided this question in the affirmative by developing the commonlaw  doctrine of common purpose and extending its application to rape cases. The court  said that it did so to remove obstacles caused by patriarchal elements of the common  law found in criminal law. The most interesting aspect of the judgment is that the  court used feminism as a starting point for understanding the plight of women in rape  cases. It affirmed its solidarity with women facing sexual violence and introduced  feminist legal theory as a viable jurisprudential consideration in the adjudication of  sexual crimes. This note considers the judgment and its implications for South Africa.