Abstract
The date of commencement of the current version of the Code of Banking Practice (“the Code”) was 1 January 2012. Although, the Banking Association of South Africa had drafted a code as far back as 3 April 2000, the first Code of Banking Practice commenced (and bound all members of the banking association) on 1 October 2004. The Code was amended on two further occasions into its current version. Accordingly, all member banks of the Bankers Association have committed themselves to apply, and abide by, the Code. The provisions of the Code provide for, amongst other things, the standards for conduct expected by the banks when dealing with their clients.
The Code can best be described as an enigma within the context of South African banking law. The aim of this work is to investigate the role and enforceability of the Code in South Africa.
Closely associated with the Code is the office of the Ombudsman for Banking Services which was established to, amongst other things, oversee compliance with the Code. Where it exercises jurisdiction, the Ombudsman acts as an alternative dispute resolution agent in resolving disputes between banks and clients. The applicability of the Code in resolving disputes between banks and their clients depends on several factors, including the type of client, the nature of the dispute and the amount involved.
If regard is had to the provisions of the Code, which the writer submits are to a large extent geared towards the benefit of the client, it is surprising that same has hardly been considered by our courts when adjudicating matters and disputes pertinent to South African banking law, and more particularly matters regarding the bank-client relationship, especially considering the deluge of cases heard on a daily basis in South African courts regarding disputes between banks and their clients.
The purpose of this work is to investigate the origins of the Code and aspects associated therewith, and, in light thereof, to investigate the role and enforceability of the Code in South African banking law bearing in mind aspects such as legislative developments as well as to elaborate on certain comparative analyses with foreign law...
LL.M. (Banking Law)