Directors’ duty to exercise independent judgement – English experiences and proposals for South Africa

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

Directors’ duty to exercise independent judgement – English experiences and proposals for South Africa

Author: Brighton M Mupangavanhu

ISSN: 2521-2605
Affiliations: LLB (UFH), LLM (UKZN), PhD Commercial Law (UCT). Former Programme Coordinator: LLM in Corporate Law programme and Associate Professor of Corporate and Finance Law, Faculty of Law, University of the Western Cape. Now Associate Professor of Commercial Law, Faculty of Law, University of Cape Town.
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 1-33
https://doi.org/10.47348/JCLA/v12/2025-SEa1

Abstract

Directors owe many duties to the company. To discharge these obligations effectively and to contribute to making quality decisions, the law requires directors to exercise independent judgement and unfettered discretion, especially in the collective functioning of the board and during decision-making processes. Situations such as outside board influences (in the case of nominee directors) and the influence of domineering figures are rampant in the collective functioning of the board. The law considers it a breach of duty for a director to allow themselves to be dominated, bamboozled, or manipulated by a dominant fellow director in a manner which disables independent judgement. South Africa recently experienced several corporate crises and collapses in many sectors, blamed on poor decision making caused by domineering persons in decision-making processes. This article considers relevant English law experiences before the Companies Act 2006, the codification of the duty to exercise independent judgement in s 173 of the Companies Act 2006, and the relevant case law principles that have evolved to date. From the analysis of English law, the article draws lessons and makes a solid case for expressing the duty to exercise independent judgement in statute in South Africa.

Advancing corporate governance and financial crime prevention in Africa through AI, FinTech, and ethics

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

Advancing corporate governance and financial crime prevention in Africa through AI, FinTech, and ethics

Author: Tanaka Dakacha

ISSN: 2521-2605
Affiliations: BA LLB, PGDip, LLM (Wits), Teaching Assistant, Wits School of Law, University of the Witwatersrand
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 34–77
https://doi.org/10.47348/JCLA/v12/2025-SEa2

Abstract

Unethical conduct, poor corporate governance, and financial crime pose significant risks to the stability and credibility of financial institutions and markets, particularly in developing economies within African jurisdictions. These challenges undermine efforts to promote financial inclusion, market integrity, and economic growth. To effectively combat these challenges, embracing innovative financial technologies (FinTech) and artificial intelligence (AI) is essential. FinTech and AI enhance financial crime detection and prevention through real-time monitoring, data analytics, and anomaly detection, surpassing traditional methods. However, while AI and FinTech can improve detection, monitoring, and compliance, they fall short in assessing human intent and moral reasoning, which are crucial for prosecuting fraud and maintaining ethical governance. This article critically examines the role of AI and FinTech in enhancing corporate governance and financial crime prevention in African developing economies, while acknowledging their limitations in assessing moral intent and legal culpability. The article further explores the Fifth Industrial Revolution (5IR) discourse, a paradigm that reorients AI innovation toward human-centred, ethically informed governance models. Moreover, it highlights the importance of promoting financial education and integrating ethics into corporate governance frameworks to protect stakeholders’ interests and secure companies’ solvency and profitability. Companies can effectively mitigate financial crime, corruption, and institutional failures by adopting these measures, particularly within African jurisdictions, promoting sustainable, resilient, and trustworthy financial systems. The successful implementation of these frameworks is key, not only to maintaining the viability of financial institutions but to long-term growth and market integrity across the continent.

Legal capital in South African corporate finance law: The intersection of law and accounting

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

Legal capital in South African corporate finance law: The intersection of law and accounting

Author: Mojalefa Reginald Mosala

ISSN: 2521-2605
Affiliations: BCom Accounting (UFS), BCom Accounting Honours (UFS), BAcc Honours (UFS), MPhil Accounting (CUT). Senior Lecturer of Financial Accounting, Commerce, Law and Management Faculty
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 78 – 100
https://doi.org/10.47348/JCLA/v12/2025-SEa3

Abstract

Dividend distribution laws, which encompass the funds a company is legally required to maintain after shareholder distribution to protect creditors and ensure solvency, play a pivotal role in corporate governance and financial sustainability. With recent corporate failures in South Africa, such as Steinhoff and Tongaat Hulett, the adequacy of dividend distribution laws and integration with financial reporting practices has come under increased scrutiny. This has signalled some limitations in the dividend distribution laws in interpreting and applying some of the financial principles to balance and protect the interests of all claimants in a business. Addressing these limitations could contribute to improved conduct of corporate and governance practices. This article examines the concept of dividend distribution laws within South African corporate law, exploring its connection with the Companies Act of South Africa 71 of 2008 and relevant accounting and finance principles. Dividend distribution laws influence South African companies’ financial decision making and risk management. The objective is to evaluate how corporate law requirements and accountancy principles intersect to support entity growth while ensuring sustainable and reputable institutions.

Open banking and AI for financial inclusion in Tanzania

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

Open banking and AI for financial inclusion in Tanzania

Authors: Jean Chrysostome Kanamugire, Kennedy Joseph Komba

ISSN: 2521-2605
Affiliations: LLB; LLM (Environmental Law); LLM (Business Law) (UKZN); LLD (NWU), Senior Lecturer, Faculty of Law, North-West University; LLB; LLM (UDSM); MBA (MUST); LLD candidate, Faculty of Law, North-West University
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 101–126
https://doi.org/10.47348/JCLA/v12/2025-SEa4

Abstract

Financial inclusion is a means to enable individuals and businesses to access and utilise a broad range of affordable and appropriate formal financial products and services to improve their financial well-being and standard of living. Advancements in innovation and technology, such as open banking and artificial intelligence (AI), offer opportunities for enhancing financial inclusion. Open banking ensures that consumers are provided the right to share their bank account or financial transaction data with third-party providers of their choice who will provide them with appropriate, convenient, and affordable financial services. This has the potential to enhance financial inclusion by extending the scope of financial service providers under the data sharing infrastructure to serve consumers with a broad range of financial services. Applying AI tools and techniques by banks and financial institutions increases efficiency, reduces operating costs, and enhances the capacity to analyse consumer data. Thus, it enables providing a broad range of affordable financial services tailored to customer needs. The regulation of open banking and AI in financial services fosters the expansion of financial inclusion in several countries. However, in Tanzania, there are still several challenges to implementing and using open banking and AI to expand financial inclusion, particularly in accessing and using banking services. Therefore, a qualitative research methodology is employed in this article to unravel these challenges. The challenges include data authorisation risks, data privacy and security risks, algorithmic discrimination, lack of regulation and supervision, lack of industry standards, inadequate legal frameworks for consumer data rights, lack of regulation of data aggregators, and lack of explicit provision to regulate open banking, and artificial intelligence to advance financial inclusion. This article discusses the challenges of regulating and implementing open banking and AI for financial inclusion in Tanzanian banks and non-bank institutions. The authors hope that the recommendations raised in this article will be useful to the relevant authorities in enhancing financial inclusion using open banking and AI in Tanzania.

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.