Financial inclusion and intellectual property rights in mobile banking applications: Selected African reflections

by | Nov 8, 2025 | JCLA, JCLA V12 SE

Financial inclusion and intellectual property rights in mobile banking applications: Selected African reflections

Authors: Lonias Ndlovu, Thuso Ramabaga

ISSN: 2521-2605
Affiliations: LLB; LLM (Fort Hare); LLD (Unisa). Professor and Director, School of Law, University of Venda, South Africa; LLB (Univen). Junior Lecturer, School of Law, University of Venda
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 127–159
https://doi.org/10.47348/JCLA/v12/2025-SEa5

Abstract

The rise of mobile banking applications has significantly improved financial inclusion across Africa, particularly in underserved communities. However, the interplay between intellectual property rights (IPRs) (including patents, copyrights, and trademarks) and financial inclusion remains underexamined. This article examines the impact of specific IPRs on the accessibility, ownership, and functionality of mobile banking applications in Botswana, Kenya, South Africa, and Zimbabwe. Using a doctrinal research methodology supported by illustrative empirical examples, the article analyses relevant legislation, IPRs ownership, and policy frameworks to determine whether IPRs facilitate or hinder financial inclusion. The findings suggest that while IPRs incentivise innovation by protecting mobile banking technologies, restrictive licensing agreements, old legislation, and ownership structures may inadvertently limit access to digital financial services. Nevertheless, there is no conclusive evidence that IPRs inherently impede financial inclusion. The article advocates for a balanced regulatory approach that ensures robust intellectual property protection while fostering open-access policies that enhance financial inclusion. The conclusion is that properly managed IPRs are more likely to support than obstruct financial inclusion in Africa. The paper makes three recommendations related to policy directives for IPRs registration, legislative amendments to accommodate applications, and case study analyses of selected major applications, such as M-Pesa.

A regulatory analysis of corporate governance and whistleblower protection in the Zimbabwean banking sector

by | Nov 8, 2025 | JCLA, JCLA V12 SE

A regulatory analysis of corporate governance and whistleblower protection in the Zimbabwean banking sector

Authors: Oscar Tsaura, Howard Chitimira, Elfas Torerai

ISSN: 2521-2605
Affiliations: BCom in Law, LLB (Unisa), LLM (NWU), LLD (NWU). Postdoctoral Research Fellow,
Faculty of Law, North-West University, South Africa; LLB (Cum Laude), LLM (UFH), LLD (NMMU). Research Director, Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University, South Africa; BSc (MSU), LLB (Unisa), LLM (NWU), LLD (NWU). Postdoctoral Research Fellow, Faculty of Law, North-West University, South Africa
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 160–183
https://doi.org/10.47348/JCLA/v12/2025-SEa6

Abstract

Corporate governance and whistleblower protection are pivotal in the fight against corruption, serving as essential tools to ensure transparency, accountability, and integrity within financial organisations. Corporate governance refers to the system of rules, practices, and processes by which a company is directed and controlled. A sound corporate governance framework ensures that banks operate transparently, responsibly, and in the best interest of their stakeholders. Effective corporate governance involves establishing clear lines of accountability, implementing stringent oversight mechanisms, and fostering a culture of ethical behaviour that promotes transparency and accountability, deters potential corrupt activities, and ensures that decisions are made with integrity and accountability. Whistleblower protection is an integral component of corporate governance. Individuals who report illegal or unethical activities within financial institutions can play a crucial role in exposing corruption within banking institutions. However, the fear of reprisals often deters potential whistleblowers from exposing corporate rot. In this regard, it is crucial to have comprehensive whistleblower protection policies that encourage individuals to report wrongdoing without fear of reprisals. The protections may include legal safeguards, confidentiality provisions, and anti-retaliation measures to ensure whistleblowers can safely disclose information. The presence of effective whistleblower protection encourages a proactive approach to corruption detection, enabling early intervention and mitigating potential damage. This article discusses the relationship between corporate governance and whistleblower protection in Zimbabwe’s banking sector, highlighting how their integration can significantly enhance anti-corruption efforts. It analyses the legislative framework and regulatory policies that support whistleblower protection in Zimbabwe to foster a culture where ethical behaviour is valued and malfeasance shunned.

Critical analysis of regulation of fintech in South Africa: Existing obstacles and opportunities

by | Nov 8, 2025 | JCLA, JCLA V12 SE

Critical analysis of regulation of fintech in South Africa: Existing obstacles and opportunities

Authors: Kola O Odeku, Mudzielwana Takalani

ISSN: 2521-2605
Affiliations: Professor, Faculty of Management and Law, University of Limpopo; Senior Tutor, Faculty of Management and Law, University of Limpopo
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 184–213
https://doi.org/10.47348/JCLA/v12/2025-SEa7

Abstract

FinTech is constantly evolving and plays a significant role in the financial sector, particularly in banking, where various digital payment technologies are being deployed and used. However, in this regard, it takes two to tango. The banking sector prides itself on using FinTech with smartphones at any location to conduct and transact banking activities of all types. With regard to regulation and accountability, banks are easily identifiable for any infraction or misstep. The article argues that the same accountability regime should be applied and implemented for any FinTech-related outfit’s shortfall or misstep. This is because FinTech also has the potential to encounter various challenges in the financial services it offers and provides to both banks and customers. This article seeks to show that FinTech can be held to account. It addresses challenges that could be encountered as well as the opportunities they present that have the potential to protect consumers and, at the same time, add value to the financial sector in South Africa.

An exploratory analysis of the protection of mobile money consumers under the South African financial consumer protection laws

by | Nov 8, 2025 | JCLA, JCLA V12 SE

An exploratory analysis of the protection of mobile money consumers under the South African financial consumer protection laws

Authors: Luck Mavhuru, Howard Chitimira

ISSN: 2521-2605
Affiliations: BSc Hons Sociology (UZ), LLB (Wits), LLM (UCT), PhD (UCT). Postdoctoral Research Fellow, Faculty of Law, North-West University, South Africa; LLB (Cum Laude), LLM (UFH), LLD (NMMU). Research Director, Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University, South Africa
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 214–233
https://doi.org/10.47348/JCLA/v12/2025-SEa8

Abstract

Consumer protection encompasses laws, regulations, and other measures designed to ensure fair and responsible treatment of financial consumers in their interactions with financial products and services. It establishes clear guidelines for financial firms in their dealings with retail customers. Consumer protection is vital as it ensures that consumers receive fair and transparent treatment, fostering confidence in financial service providers. This is particularly crucial in emerging markets, where there is often a limited history of formal financial service providers. The emphasis on consumer protection in financial services has grown in recent years, enhancing the understanding of the importance of empowering consumers to make informed financial decisions. Financial consumer protection focuses on safeguarding consumers’ financial assets, such as deposits, from fraud, misappropriation, and misuse. In South Africa, consumer protection is governed by the Consumer Protection Act (CPA), which outlines consumer rights and supplier responsibilities. The CPA aims to protect consumer interests, ensuring accessible, transparent, and efficient redress for those who experience abuse or exploitation in the marketplace. Statutes such as the Financial Sector Regulation Act and the Banks Act also contain provisions designed to protect financial consumers. This article evaluates the extent to which these legislative frameworks safeguard users of mobile money services, analysing their effectiveness in addressing the unique risks associated with deposit protection.

Trade-based illicit financial flows and their impact on fair trade: Will the African Continental Free Trade Area succeed?

by | Nov 8, 2025 | JCLA, JCLA V12 SE

Trade-based illicit financial flows and their impact on fair trade: Will the African Continental Free Trade Area succeed?

Author: Tapiwa Victor Warikandwa

ISSN: 2521-2605
Affiliations: LLB, LLM, LLD (UFH). Adjunct Professor, University of Venda, South Africa. Senior Lecturer, Department of Law, University of Botswana
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 234–266
https://doi.org/10.47348/JCLA/v12/2025-SEa9

Abstract

The African Continental Free Trade Area Agreement and the adoption of the African Continental Free Trade Area (AfCFTA) have brought significant hope of growing foreign direct investment and intra-African trade on the African continent. The AfCFTA sets the basis for sustained belief in African countries’ ability to grow investments, realise sustainable development and eradicate poverty. However, trade-based illicit financial flows (IFFs) could potentially derail any hopes of realising fair trade, sustainable development and ultimately AfCFTA’s success. Trade practices in African countries are often characterised by corruption, trade-based money laundering, bribery, and a general lack of good governance. The AfCFTA Agreement does not address financial crime risks and/or issues. This article discusses how trade-based IFFs will undermine the potential gains of the AfCFTA. It emphasises that a lack of integrity in trade will frustrate the realisation of the AfCFTA Agreement’s key objectives. The article advocates for harmonised AfCFTA rules to curb IFFs to ensure that the AfCFTA succeeds. Stringent trade rules must be adopted to ensure that trade-based IFFs do not undermine foreign direct investments and intra-African trade. The article relies on the Financial Action Task Force guidelines on how to curb trade-based IFFs.

The jurisdiction of competition authorities over Peregrini respondent firms in South African competition law: Revisiting the foreign currency cartel case

by | Nov 8, 2025 | JCLA, JCLA V12 SE

The jurisdiction of competition authorities over Peregrini respondent firms in South African competition law: Revisiting the foreign currency cartel case

Author: Precious Nonhlanhla Ndlovu

ISSN: 2521-2605
Affiliations: LLB (UFH), LLM (UWC), LLD. Senior Lecturer, Mercantile & Labour Law, University of the Western Cape
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 267–297
https://doi.org/10.47348/JCLA/v12/2025-SEa10

Abstract

As it currently stands, the Competition Act 89 of 1998 only explicitly addresses subject-matter jurisdiction in s 3(1) by stipulating that its provisions apply “to all economic activities within or having an effect within” South Africa. When it comes to personal jurisdiction, the Act is silent. This means that the common law principles on personal jurisdiction must be applied. To that end, the forex cartel litigation served to clarify that personal jurisdiction is a mandatory requirement in South African competition law litigation involving peregrini respondent firms, on par with subject-matter jurisdiction. Because the Competition Act does not address the question of personal jurisdiction, the forex cartel litigation provided an opportunity to develop the common law on personal jurisdiction in competition law proceedings. The outcome of the forex cartel case is that personal jurisdiction can be satisfied if the Competition Commission, as prosecutor, can show that there are connecting factors between the prohibited conduct allegedly committed by peregrini respondents, and the Competition Tribunal, as the court of first instance. Considering the difficulties that the Competition Commission faced in establishing personal jurisdiction utilising common principles of personal jurisdiction in the forex cartel case, the legislature ought to consider amending the Competition Act to explicitly make provision for personal jurisdiction, in the way that subject-matter jurisdiction is statutorily defined. That said, the actual enforcement of these judgments against peregrini firms remains an issue to be determined in terms of the individual jurisdictions where such enforcement is sought.

The lessor’s hypothec – for rent?

by | Nov 8, 2025 | SLR, SLR V36 I1

The lessor’s hypothec – for rent?

Author: Graham Glover

ISSN: 1996-2193
Affiliations: BA LLB PhD, Professor, Faculty of Law, Rhodes University
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 1-15
https://doi.org/10.47348/SLR/2025/i1a1

Abstract

The lessor’s hypothec is a form of real security that has been recognised since the Republican period in Roman law. The hypothec, as it is traditionally understood, allows a lessor to attach and to sell in execution the property on the leased premises to set off arrear rent that the tenant owes. This contribution investigates two questions that have received little attention in the case law and literature. The first is how the concept of rent should be interpreted and understood in a modern world where lease contracts may describe the tenant’s financial obligations in various ways. The second is whether the hypothec should apply to any claims beyond the obligation to pay rent. An argument is made for an expanded approach to the traditional understanding of the application of the hypothec with respect to both questions. Nevertheless, reasons are given as to why this will not unduly stretch the range of application of the hypothec in any significant practical way.

Bwanya, EB and contexts of structural inequality in contracts

by | Nov 8, 2025 | SLR, SLR V36 I1

Bwanya, EB and contexts of structural inequality in contracts

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA, LLB, LLM (Stell) PhD (Cantab), Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 16-38
https://doi.org/10.47348/SLR/2025/i1a2

Abstract

Two recent Constitutional Court cases have modified the reasoning about contractual autonomy expressed in the court’s earlier judgment in Volks v Robinson. In Volks, the court held that people who choose not to marry cannot expect to benefit from the rights afforded to spouses – generally called the choice argument. This article examines the effects of these judgments for party autonomy in contracts in general. Bwanya v The Master acknowledges that structural forms of inequality, like gender inequality, can impede parties’ abilities to freely contract, but it is ambiguous on the question whether a right to support will be afforded to unmarried partners on the basis of contract or a familial relationship, or both. This creates uncertainty about the basis of future claims for rights to support in such relationships and opens the door for contractual defences to future claims. EB v ER considered the role of the choice argument in contracts which had turned out to be detrimental to one party. It confirmed the central role of pacta sunt servanda in public policy on contracts, but decided the matter on the basis of the unfair discrimination test in Harksen v Lane. Together, the cases create a chink in the armour of pacta sunt servanda and the choice argument for broader reconsideration of autonomy and fairness in contract law.

Learners resolving conflict: integrating mandatory peer mediation in South African public high schools to address issues of discipline

by | Nov 8, 2025 | SLR, SLR V36 I1

Learners resolving conflict: integrating mandatory peer mediation in South African public high schools to address issues of discipline

Authors: Monique Carels and Muofhe Tshifularo

ISSN: 1996-2193
Affiliations: LLB, LLM (Dispute Resolution), LLM (Labour Law), Lecturer, University of Cape Town; LLB, LLM (Dispute Resolution), Admitted Attorney
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 39-60
https://doi.org/10.47348/SLR/2025/i1a3

 Abstract

Disputes are a natural part of school life, and unfortunately, bullying, harassment, victimisation, and assaults have become all too common in South African public high schools. Schools face significant disciplinary challenges, with issues of ill-discipline on the rise in schools across the country. However, the current school disciplinary procedures adopted by most public high schools fail to address the root causes of these problems and do not provide concrete solutions.
This article aims to explore the idea of implementing mandatory peer mediation in South African public high schools as a way to resolve conflicts and address issues of discipline. It will begin by briefly examining the school disciplinary procedure, before discussing its shortcomings. Next, it will examine the concept of peer mediation and compare it to the disciplinary hearing process. To gain a deeper understanding of how peer mediation could be integrated into the school environment, we will look at the experience in New Zealand. Finally, the article will discuss the practicalities of implementing mandatory peer mediation in South African high schools.

Relationship-centred lawyering and its impact on legal practice

by | Nov 8, 2025 | SLR, SLR V36 I1

Relationship-centred lawyering and its impact on legal practice

Author: Jonathan Campbell

ISSN: 1996-2193
Affiliations: BA LLB (UCT) LLM, Associate Professor, Faculty of Law, Rhodes University
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 61-78
https://doi.org/10.47348/SLR/2025/i1a4

 Abstract

This contribution emphasises the human factor in the relationship between lawyer and client. It submits that traditional “client-centred lawyering”, which foregrounds the paramount interests of the client, has considerable value but does not go far enough. “Relationship-centred lawyering” (or “relational lawyering”) extends the focus beyond the interests of the client to the relationship between lawyer and client. According to this approach the building of trust and rapport is foundational to a successful professional relationship.
Four key characteristics define relational lawyering: (i) the background contexts of both the client and the lawyer, and the personalities, values, preferences (and more) that each brings into the interactions between them; (ii) the importance of non-legal issues that can determine (in whole or in part) the strategy adopted and even the preferred outcome; (iii) a partnership between lawyer and client that allows for collaborative problem-solving, since the client knows best the facts of the case but also her needs and preferences, with the emphasis on the importance of client autonomy in decision-making; and (iv) a range of psychological matters, including interpersonal literacy, emotional intelligence and empathy in the lawyer-client relationship.
A range of skills and values are required to practice relational lawyering, known as “relational competencies”. These competencies are not widely practiced or understood by lawyers, and usually they are not explicitly included in law curricula. This contribution argues that there is a need for relational skills and values to be taught in law schools so that these valued competencies can aid graduates in serving the best interests of their clients in their future careers.