Accountability in the twin peaks model of financial regulation in South Africa

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Accountability in the twin peaks model of financial regulation in South Africa

Authors: Gerda van Niekerk & Hoolo ’Nyane

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Limpopo; Associate Professor of Public Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 382 – 403
https://doi.org/10.47348/SAMLJ/v34/i3a4

Abstract

The Financial Sector Regulation (FSR) Act 9 of 2017 implemented the first stage of the Twin Peaks model of financial regulation in South Africa. The Act established the Prudential Authority and the Financial Sector Conduct Authority to make the financial sector safer by using a more robust prudential and market conduct framework. The South African Reserve Bank received an enhanced mandate to promote and maintain financial stability. Since accountability is a core goal in financial regulation, this paper analyses the notion of accountability and specifically the accountability of the regulators in a Twin Peaks model of financial regulation. The legislative framework put in place by the FSR Act goes a long way in adhering to principles of accountability. The financial sector regulators are obliged to consult with various stakeholders such as the Minister of Finance and financial institutions. The regulators are subject to control measures, and Parliament holds them accountable. Nevertheless, the authors suggest that one more step is necessary. There should be more debate and engagement by the regulators with the general public to increase public knowledge of financial sector regulation in South Africa.

An analysis of the causes of violence during strike action in South Africa: A psychological perspective

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

An analysis of the causes of violence during strike action in South Africa: A psychological perspective

Author: Carlos J Tchawouo Mbiada

ISSN: 1996-2185
Affiliations: Senior Lecturer in Law, University of Venda
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 404 – 420
https://doi.org/10.47348/SAMLJ/v34/i3a5

Abstract

Peaceful strikes in post-apartheid South Africa are uncommon. Most industrial action is associated with violent acts to the extent that violence seems to be the norm. Different scholarly contributions regarding the causes of the high number of violent strikes in South Africa have been made; most of these, this article argues, are sociologically and legally inclined. Using the Freudian political psychology theory and the frustration-aggression hypothesis, this article opines that episodic waves of violent activities during strike action are subject to the psychological imbalances and frustrations emanating as a twin phenomenon of intrinsically motivated apartheid posttraumatic effects and people’s inability to meet their basic needs of life. Using an orderly and systematic review of the literature, the article unpacks the causes of violent strikes in South Africa in a psychological manner.

Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited

Author: Vuyo Ntsangane Peach

ISSN: 1996-2185
Affiliations: Associate Professor, University of South Africa
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 421 – 434
https://doi.org/10.47348/SAMLJ/v34/i3a6

Abstract

None

The characterisation principle in South African competition law from a German law perspective

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

The characterisation principle in South African competition law from a German law perspective

Author: Damian Schmidt

ISSN: 1996-2185
Affiliations: Attorney at law in Stuttgart (Germany)
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 153 – 180
https://doi.org/10.47348/SAMLJ/v34/i2a1

Abstract

The characterisation principle — or the concept of characterisation —  is a modern achievement of the South African competition law, with its  roots in United States jurisdiction from which it was originally  transferred into the South African legal system. Several far-reaching  South African court decisions refer to the characterisation principle  and make it an essential part. However, the positioning of the  characterisation principle in South African competition law is  complex. This is shown by the fact that, for example, the concept of  characterisation obviously conflicts with the rationale of the per se  prohibitions implemented in the South African Competition Act 89 of  1998. This article attempts to analyse the characterisation principle  from a German law perspective in order to define its relevance, impact  and limitation more precisely in the South African legal system. 

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

Author: Elisa Rinaldi

ISSN: 1996-2185
Affiliations: Assistant Lecturer, Faculty of Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 181 – 211
https://doi.org/10.47348/SAMLJ/v34/i2a2

Abstract

With a growth in cross-border employment, the territorial limitations  placed on the adjudication of cross-border employment disputes is  incongruent to the development of employment and the subsequent  employment relationship. The question of adjudication in the Labour  Court rests predominantly on the territorial scope of South Africa’s  employment statutes. Accordingly, this article exposes the uncertainty  employees, who work outside their countries of residence, face when  trying to utilise the Labour Court as a channel of legal relief. Reasons  for this inconsistency lies in the approach the Labour Court has taken  in determining the territorial reach of South Africa’s employment  statutes. Where the Labour Court has utilised methods of statutory  interpretation and strictly imposed the presumption against extraterritoriality,  the court has established a practice that, in light of the  growing global nature of employment, deviates from the realities of the  de-territorialised flow of labour. Important in this article is thus the  endorsement of private international law principles and methods in  establishing jurisdiction and choice of law in the adjudication of a  cross-border employment dispute. 

The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration

Author: Moseki Maleka

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 212 – 228
https://doi.org/10.47348/SAMLJ/v34/i2a3

Abstract

Before the commencement of the constitutional state era (due to the  promulgation of the Constitution of the Republic South Africa, 1996  (‘the Constitution’)) in South Africa, taxpayers’ rights were not protected  when taxpayers engaged with the revenue office, now known as  the South African Revenue Service (SARS). Taxpayers had no right to  just administrative action and could not challenge the exercise of SARS’  powers on administrative grounds.  Croome and Olivier argue correctly that during the pre-constitutional  era, taxpayers were entitled to expect that SARS would comply  with the general principles of administrative law, comprising the  principles of audi alteram partem (‘hear the other side’), nemo iudex in  sua propria (‘no one may be a judge in his own cause’) and the commonlaw  principles of judicial review of administrative acts (see Croome &  Olivier, Tax Administration (Juta 2010) 21).  Further, SARS was not obliged to provide reasons to taxpayers for  decisions taken by them as long as the decisions were reached in  accordance with its wide legislative powers (see Croome & Olivier, (Juta  2010) 21). This means that taxpayers did not have any ammunition to  challenge the exercise of SARS’ powers on administrative grounds prior  to the commencement of the constitutional era, where no reasons were  provided.  The position mentioned above has changed and SARS’ actions can  now be measured against the fundamental rights entrenched in Chapter  2 of the Constitution and the administrative principles laid down in the case of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and  Tourism and Others 2004 (4) SA 490 (CC) (‘Bato Star Fishing’).