De Jure最新文献

{"title":"The regulation of cryptocurrencies to combat money laundering crimes in South African banking institutions","authors":"Princess Thembelihle Ncube, Ruddy Kabwe","doi":"10.17159/2225-7160/2023/v56a22","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a22","url":null,"abstract":"Cryptocurrencies have become an increasingly popular means of conducting financial transactions globally, and South African banking institutions have not been immune to this trend. However, the pseudonymous nature of cryptocurrency transactions has made it an attractive tool for money laundering activities. In response, there is a growing need for South African regulators to establish a legal framework to regulate the use of cryptocurrency to combat money laundering crimes by banking institutions. While the recent amendments to the Financial Intelligence Centre Act 38 of 2001 (as amended) regarding cryptocurrencies are commendable, it is not without deficiencies. The purpose of this article is threefold. First, it examines the current state of cryptocurrency regulation in South Africa. Second, it explores the vulnerabilities that expose the banking system to money laundering using cryptocurrencies. Third, it highlights the need for further development and implementation of regulatory measures to address vulnerabilities identified in this article. This article argues that the current lack of a comprehensive regulatory framework for cryptocurrencies in South Africa leaves the banking system open to potential abuse. The article suggests that South African regulators should focus on three key areas to combat money laundering activities related to cryptocurrency. First, regulatory measures should be implemented to identify and verify the identities of cryptocurrency traders and investors. Second, measures should be put in place to monitor the flow of cryptocurrency transactions and detect suspicious activities. Third, the digital wallets of crypto users should be managed by South African banking institutions.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89258607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"South African courts' differing approaches to determining children's views in family law matters","authors":"Alet Magdaleen Uys","doi":"10.17159/2225-7160/2023/v56a20","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a20","url":null,"abstract":"The United Nations (UN) Convention on the Rights of the Child, 1989 (CRC), the African Charter on the Rights and Welfare of the Child, 1990 (ACRWC) and sections 6(5), 10, and 31(1)(a) of the Children's Act 38 of 2005 (Children's Act) place an obligation on South African courts to determine children's views in their parents' family law matters. This article analyses thirteen judgments stretching from 2003 - 2020 and one 2018 psychological study in relation to parenting plans to ascertain how South African courts determine children's views and wishes in practice. The judgments selected relate to divorces and disputes regarding children's primary residence and care and contact (custody and access disputes), disputes where a parent intends emigrating with children, and matters were a parent abducted a child. The judgments indicate courts have diverging approaches to determining children's views and wishes in family law matters. The 2018 psychological study found legal practitioners unfortunately fail to take into account children's inputs for purposes of drafting their parents' parenting plans. In light of courts' diverging approaches to determining a child's voice in their parents' litigious matters, as well as the current complete lack of guidelines in this regard, there is a need to amend the Children's Act to assist courts with particular regulations or guidelines in this regard. If courts are equipped with guidelines to direct their determination of children's views and wishes in family law matters, this will result in a more certain, and more congruent approach and most importantly, it will assist courts to pay heed to their duty to properly hear the voice of the child.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86242313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Special Edition on Rethinking Global Economies, Financial Markets, Corporate Practices & Business Activities Post-COVID-19 Pandemic","authors":"Howard Chitimira","doi":"10.17159/2225-7160/2023/v56a10","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a10","url":null,"abstract":"","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"24 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75341455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration","authors":"T. Warikandwa, L. Usebiu","doi":"10.17159/2225-7160/2023/v56a18","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a18","url":null,"abstract":"International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84152952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The regulatory nexus between the promotion of financial education and financial inclusion in enhancing consumer protection in South Africa","authors":"Phemelo Magau","doi":"10.17159/2225-7160/2023/v56a16","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a16","url":null,"abstract":"This paper seeks to share some insights on the regulatory aspects of the promotion of financial education and financial inclusion to enhance consumer protection in South Africa. In recent years, policymakers in different countries, including South Africa, have made various efforts to regulate financial inclusion and integrate financial consumers into the financial sector. Similarly, policymakers and other relevant stakeholders have made efforts to promote financial education to empower financial consumers to make sound financial choices and decisions. Notwithstanding these efforts, the promotion of financial education and financial inclusion has been done in isolation, overlooking the policy synergies between these objectives and/or financial sector outcomes in enhancing consumer protection in South Africa. Given the recent COVID-19 pandemic, both financial education and financial inclusion have become increasingly important policy considerations to negotiate the chasm from the challenges that financial consumers faced before the pandemic and move towards safeguarding the economic interests of financial consumers post-pandemic. Accordingly, this paper explores the interrelationship between the effective promotion of financial education and financial inclusion to enhance consumer protection. Moreover, this paper examines the adequacy of the regulation of financial education and financial inclusion under the National Credit Act 34 of 2005 (NCA); the Consumer Protection Act 68 of 2008 (CPA), the Financial Sector Regulation Act 9 of 201 7 (FSR Act) and the proposed Conduct of Financial Institutions Bill (CoFI Bill) in relation to strengthening consumer protection. Put differently, this article focuses on the regulatory nexus of the promotion of financial education and financial inclusion to enhance consumer protection in South Africa. In the end, this article will provide some recommendations and enforcement approaches that could be incorporated into the regulatory framework of the promotion of financial education and financial inclusion to enhance consumer protection in South Africa.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89866322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An analysis of legal accountability for artificial intelligence systems in the South African financial sector","authors":"T. J. Kgoale, K. Odeku","doi":"10.17159/2225-7160/2023/v56a14","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a14","url":null,"abstract":"While the deployment and use of Artificial Intelligence Systems (AIS) have continued to grow at an exponential rate in the world, and they are generally viewed as positive for economic growth and productivity. However, there is a concern about how to hold AIS legally liable and responsible just as a person. This is said against the backdrop that AIS has become indistinguishable from humans and as such they should be entitled to a status comparable to natural persons in order for them to enjoy legal rights and incur liabilities like juristic and natural persons. Especially in the financial sector where the use is ubiquitous in virtually all aspects of the sector from credit assessment to credit rating, credit and loan facilities, customer services, and decision-making for and on behalf of corporations. The situation in South Africa is precarious because, presently, the AIS has not been granted clear legal status in any South African statutes. It is pertinent to point out that while there is no legislative framework dealing specifically with AIS and related legal issues in the financial sector such as the banking industry, a raft of legislation is in place to regulate potential risks posed by the use of AIS in the sector in South Africa. These include legislation in the areas of financial and banking regulations. The problem is the fragmented way the regulations and legislation have been approached. Notably, the financial sector in South Africa uses AIS for their operations and as such sometimes, AIS commits errors, omissions, etcetera, making them eligible for accountability. But the problem still remains that there is no single legislation in South Africa upon which AIS will be held legally accountable save for fragmented pieces of legislative frameworks which have accountability components, but these are not adequate. It is against the backdrop of this specific accountability vacuum for AIS in the financial sector that this article explores germane provisions of the Constitution of the Republic of South Africa 1996 (Constitution) as well as existing fragmented legislative frameworks and foreign law jurisprudence where AIS accountability is well developed and have the potential to hold AIS responsible for their omissions or commission was explored and useful lessons are drawn accordingly.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80756791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What amounts to \"dispositions without value\" in the context of section 26 of the Insolvency Act 24 of 1936?","authors":"Motseotsile Clement Marumoagae","doi":"10.17159/2225-7160/2023/v56a13","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a13","url":null,"abstract":"Section 26 of the Insolvency Act 24 of 1936 aims to prevent natural and juristic persons from giving away their assets without receiving any value in return, in circumstances where immediately after releasing such assets they become insolvent. This paper demonstrates that it has not been easy for courts to adequately determine how value should be established for this provision not to apply. Several tests that have been established by courts are discussed with a view to demonstrate the difficulty faced by trustees and liquidators when seeking to set aside transactions in which they believe insolvent persons did not derive value. It will also be shown that the Supreme Court of Appeal crafted a new test that is way too simplistic, which may lead to prejudicial transactions that should otherwise be subjected to judicial scrutiny in terms of section 26(1) of the Insolvency Act being protected from the reach of this provision. This paper argues that there is an urgent need for legislative guidelines on what constitutes value in relation to the pre-liquidation/sequestration transactions to prevent the application of section 26(1) of the Insolvency Act.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84031862","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Policy implications and mobile money regulatory approaches to promote financial inclusion of the poor in Zimbabwe after the COVID-19 pandemic","authors":"Howard Chitimira, Elfas Torerai","doi":"10.17159/2225-7160/2023/v56a17","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a17","url":null,"abstract":"The increased usage of digital financial products and financial services such as mobile money brought various challenges and opportunities in Zimbabwe during the coronavirus (COVID-19) pandemic. This has also increased the responsibilities of the regulatory authorities in the Zimbabwean financial sector. The financial regulators were inadequately prepared for the regulatory demands of financial technology (fintech) products in Zimbabwe. For instance, they struggled to cope with the increased responsibilities of overseeing mobile money operators and have adequate resources to efficiently monitor and manage such operators to ensure compliance with the relevant laws. Most Zimbabwean financial regulators did not have sufficient resources to employ persons with the relevant skills and expertise to fulfil their responsibilities. Despite this, the widespread use of mobile money has considerably improved the financial inclusion of the poor and previously unbanked persons, particularly during the COVID-19 pandemic in Zimbabwe. Consequently, various policy implications and mobile money regulatory approaches that were considered by policymakers during and after the COVID-19 pandemic in Zimbabwe in a bid to provide adequate supervision of mobile money operators and related digital financial services to curb the financial exclusion of the poor and unbanked persons are investigated. It is against this background that this article discusses the challenges, policy implications, and flaws affecting the adoption of viable mobile money regulatory approaches to promote financial inclusion of the poor in Zimbabwe after the COVID-19 pandemic.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"73 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76860310","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reflecting on the corporate opportunity rule in company law through a jurisprudential review of Modise v Tladi Holdings (Pty) Ltd 2020 4 All SA 670 (SCA)","authors":"Justice Mudzamiri","doi":"10.17159/2225-7160/2023/v56a15","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a15","url":null,"abstract":"Directors' fiduciary duties form part of foundational principles in corporate law. This concept has its foundations in the law of agency. Prior to the Companies Act 71 of 2008 (the Companies Act), fiduciary duties were governed under common law, however, the advent of the Companies Act resulted in the partial codification of fiduciary duties. One of the central fiduciary duties is the duty of directors to avoid conflict of interest. This duty restricts the directors of a company from having their personal interests impede those of the company. There are separate rules that flow from the directors' duty to avoid conflict of interests, including the corporate opportunity rule. The corporate opportunity rule dictates that directors must not use their position to unfairly benefit from the contracts and/or information that rightfully belongs to the company they are managing. The objectives of the corporate opportunity rule were clarified in Modise v Tladi Holdings (Pty) Ltd (the Modise case). In partially confirming the judgment of the court a quo the Supreme Court of Appeal held that the ambit of breaching the corporate opportunity rule includes the illegal use of the property and confidential information of the company by a director for personal gain. This article agrees with the reasoning of both the High Court (court a quo or trial court) and the Supreme Court of Appeal in the Modise case on the issue of prescription although the article raises concerns about the decision of the Supreme Court of Appeal on a similar issue. Further, the article concurs with the reasoning of both the court a quo and the Supreme Court of Appeal in concluding that the applicants breached their fiduciary duty when they appropriated a corporate opportunity that belonged to the company. One of the major lessons that could be learnt from the Modise case is that directors, especially those who serve on multiple boards, should exercise extreme caution with potential conflicts of interest.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"49 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85864680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An analysis of the possibility to implement a CSI tax levy in South Africa: Lessons from Mauritius","authors":"M. J. Preston, Swaleha Peeroo","doi":"10.17159/2225-7160/2023/v56a19","DOIUrl":"https://doi.org/10.17159/2225-7160/2023/v56a19","url":null,"abstract":"\"The voluntary approach to corporate social responsibility has failed in many cases.\"1 The Mauritius corporate social responsibility (CSR) landscape changed profoundly in 2009 with the addition of sections 50K and 50L to the Income Tax Act 16 of 1995 (Mauritius), making contributions to a CSR fund mandatory. Before 2009, the Mauritius government repeatedly called on the private sector for assistance to overcome unemployment, poverty, and other challenges in their country. Due to an unsatisfactory response to their request and factors such as poverty, and high unemployment levels, the government made the drastic decision to implement mandatory CSR legislation. The main objective of this study was to investigate the factors contributing to the enactment of mandatory corporate social responsibility (CSR) legislation in Mauritius and the possibility to implement similar legislation in South Africa. An analysis of the Mauritius tax legislation and relevant government publications scrutinised, by way of a literature review, revealed that what is referred to as mandatory CSR, is in fact mandatory corporate social investment (CSI). The study further indicated that the same socioeconomic factors as those present in Mauritius prior to 2009 and worse apply to South Africa. An analysis of South African CSI practices and contributions indicated that an additional R3.111 billion could have been raised if a 2 per cent CSI levy was applied to after-tax profits of certain categories of companies, as in Mauritius. This represents 1.2 per cent of the South African Department of Social Development's 2022/2023 budget. It is recommended that similar legislation should be considered for South Africa. It will ensure that all profitable companies in South Africa contribute to CSI and that more funds will be available to address some of the socio-economic needs. The study addressed the gap in empirical research done in Mauritius after 2018 and 2020 and is also the first comparative study conducted on this topic regarding South African law.","PeriodicalId":41915,"journal":{"name":"De Jure","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90952254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}