Promotion of financial inclusion for low-income earners in South Africa

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

Promotion of financial inclusion for low-income earners in South Africa

Author: Jean Chrysostome Kanamugire

ISSN: 1996-2185
Affiliations: Senior lecturer, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 361 – 377
https://doi.org/10.47348/SAMLJ/v36/i3a1

 Abstract

Financial inclusion is a necessary global responsibility for policymakers to ensure sustainable long-term growth and it is also considered to be a strong foundation for human development. The current financial system in South Africa does not include all members of society, especially low-income earners. Different factors attract the privileged members of society into the financial system and exclude low-income earners and the poor from participating in financial markets. The current legal framework and policies are inadequate in giving the poor and low-income earners access to the financial services and products offered by financial institutions. This article provides an analysis of legislation related to financial inclusion and discusses the role-players that significantly impact the inclusion of low-income earners in the financial markets. The barriers to financial inclusion will be discussed, and measures will be proposed to promote financial inclusion for low-income earners in South African markets. Furthermore, factors that promote financial inclusion, such as internet access, will be discussed.

Should payment of additional remuneration to business rescue practitioners outside section 143 of the Companies Act be prohibited?

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

Should payment of additional remuneration to business rescue practitioners outside section 143 of the Companies Act be prohibited?

Authors: Motseotsile Clement Marumoagae & Kiyasha Thambi

ISSN: 1996-2185
Affiliations: Professor, University of the Witwatersrand, School of Law; Lecturer, University of Johannesburg, Department of Mercantile Law
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 378 – 397
https://doi.org/10.47348/SAMLJ/v36/i3a2

 Abstract

Certain nuances relating to rescue proceedings inadvertently place a practitioner under staid constraints, hindering the execution of statutory duties. Nevertheless, section 143(1) of the Companies Act 71 of 2008 (‘the 2008 Act’) provides for the remuneration of business rescue practitioners, based on a prescribed tariff. Where practitioners find these tariffs non-commensurate, they may propose the payment of additional remuneration payable on a contingency basis. In certain circumstances, the acceptance of a ‘success fee’ by a practitioner could possibly constitute a breach of the practitioner’s duty to act with the utmost good faith. Despite incentives in South Africa encouraging practitioners to adopt workable and successful business rescue plans, some practitioners continue to negotiate for the payment of success fees. The 2008 Act is silent on the lawfulness or otherwise of success fees. This article discusses the practitioners’ remuneration arrangements concluded during rescue proceedings to determine whether they should be permitted to negotiate success fees. Furthermore, it reflects on the fiduciary duties (if any) that practitioners owe to the companies for which they are mandated to rescue.

Defining corporate social responsibility, corporate social investment and corporate philanthropy for South Africa

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

Defining corporate social responsibility, corporate social investment and corporate philanthropy for South Africa

Author: Margaretha J Preston

ISSN: 1996-2185
Affiliations: Senior Lecturer, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 398 – 422
https://doi.org/10.47348/SAMLJ/v36/i3a3

 Abstract

Section 18A, read with section 30 and the Ninth Schedule to the Income Tax Act 58 of 1962 (ITA), provides a legal framework for a deduction against taxable income of philanthropic contributions to defined nonprofit public benefit organisations in South Africa. This premise and the defined public benefit activities listed in the Ninth Schedule to the ITA formed the foundation for conducting a systematic literature review. The purpose of this research was to construct definitions for the concepts of corporate social responsibility (CSR), investment (CSI), and philanthropy (CP), specifically for the South African context. The research was qualitative in nature and employed a three-stage inductive research method. Atlas.ti 23 was used to assist in the data collection and thematic analysis process. Deductive reasoning was used as the final step to interpret the identified themes and employ the frequency of codes to develop the definitions. The result was the drafting of South African context-related definitions for each concept of CSR, CSI, and CP. The value of this research is twofold: the themes/characteristics included in the proposed definitions were determined through transparent and scientific methods. Secondly, each definition can be uniform for that specific concept (whether CSR, CSI, or CP), and researchers (at least for the South African case) no longer have to rely on general definitions.

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.