Showing items 1 - 18 of 18

Your selections:

A legal analysis of transferable letters of credit and alternative mechanisms serving similar functions

- Manganyi, Matimu M.

Documentary collections as a method of payment in international sale transactions

- Kotelo, Mamphahama Alina

Mareva-type injunctions in respect of the proceeds of documentary credits

- Britz, David Michael

  • Authors: Britz, David Michael
  • Date: 2015-07-14
  • Subjects: Documentary credit - Law and legislation - South Africa , Documentary credit - Law and legislation - England , Injunctions - South Africa , Injunctions - England , Debtor and creditor - South Africa , Debtor and creditor - England
  • Type: Thesis
  • Identifier: uj:13740 , http://hdl.handle.net/10210/14005
  • Description: LL.M. (Commercial Law) , Applications for prohibitory injunctions or interdicts against payment under documentary credits are seldom awarded. However, both English and South African law provide alternative forms of relief. These alternative orders focus on how the beneficiary deals with the proceeds of the credit rather than the prevention of payment thereof. One such alternative is the Mareva injunction of English law which, through freezing the beneficiary’s assets, prevents the removal thereof from the area of the court’s jurisdiction once judgment is given. The South African equivalent of the Mareva injunction is known as the anti-dissipation interdict and has yet to be applied to the law of documentary credits by the South African courts. However the South African attachment application has been so applied. Therefore this dissertation seeks to conduct a comparative analysis between South African and English law Marevatype injunctions on the proceeds of documentary credits, focusing especially on the judgments handed down in Intraco Ltd v Notis Shipping Corporation of Liberia and Ex Parte Sapan Trading (Pty) Ltd. Chapters Two, Three and Four will explore the nature, development, requirements and effects of the injunctions and interdicts through local and international case law as well as the prospects of a successful application under each. Finally Chapter Five will critically analyse, comment and draw conclusions from Ex Parte Sapan Trading (Pty) Ltd.
  • Full Text:

The bank's duty of confidentiality and secrecy with reference to money laundering and terror financing legislation in South Africa

- De Kock, Susan Yvonne

The duty on the bank issuing a letter of credit to return the documents : legal perspectives from Canada, England and South Africa

- Scholtz, Jacobus Francois

Vicarious liability of banks for fraudulent conduct of their employees

- Van der Linde, Carien

  • Authors: Van der Linde, Carien
  • Date: 2015-07-14
  • Subjects: Banks and banking - South Africa , Fraud - South Africa , Bank employees - South Africa , Accounting fraud - South Africa , Liability (Law) - South Africa
  • Type: Thesis
  • Identifier: uj:13708 , http://hdl.handle.net/10210/13973
  • Description: LL.M. (Banking Law) , When a bank employee commits fraudulent acts within the course and scope of his employment, he renders the bank vicariously liable for his fraud. The logical conundrum is that since a bank never employs someone to commit fraud, and since fraud is thus never in this sense within the course and scope of his employment, should the bank never be liable for this fraudulent conduct? If this were the law, the public could potentially be defrauded with impunity, because those defrauded would be left only with a claim against a fraudster who likely has no assets. This dissertation examines the common-law doctrine of vicarious liability and illustrates the sometimes-haphazard manner in which courts have applied the underlying principle to the varying facts that arise. It will be shown that the application of the doctrine to cases involving fraud by bank employees is particularly inconsistent and unsatisfactory. It will be proposed that the solution lies in the development of the common law so as to promote the spirit, purport and objects of the Bill of Rights, and particularly section 25 of the Constitution. 2 This paragraph conceptualises the vicarious liability doctrine. Paragraph 2 considers the application of the doctrine by the courts, and points to inconsistencies in approach. The third paragraph deals briefly with the position in two common-law jurisdictions, Canada and Britain. The final paragraph proposes a solution to the observed inconsistencies: an employee acts in the course and scope of his employment for purposes of imposing vicarious liability when the employer’s right not to be arbitrarily deprived of his property in terms of section 25 of the Constitution is acknowledged, and his vicarious liability is limited to cases where there is a rational relationship between the employee’s fraudulent conduct and the scope of his employment, and not an arbitrary deprivation. In considering the South African cases, it readily becomes apparent that the courts have already instinctively adopted the approach of examining the nature and extent of the deviation by the employee from the scope of his employment, but have not done so in the context of the property clause ...
  • Full Text:

A legal perspective on the risks relating to internet banking

- Booyens, Frans Christoffel

  • Authors: Booyens, Frans Christoffel
  • Date: 2015-07-15
  • Subjects: Internet banking - Law and legislation , Internet banking - Law and legislation - South Africa
  • Type: Thesis
  • Identifier: uj:13771 , http://hdl.handle.net/10210/14035
  • Description: LL.M. (Banking Law) , During the last ten years technology evolved to such an extent that it was inevitable that banks would have to adapt their traditional understanding and methods of banking. This led to banks introducing various products and services such as internet banking, mobile banking and emoney. The advantages of these products are being able to access your bank account on the go, within minutes, without having to go into the bank and having face-to-face interaction. These products are automated and computerised. This decreases the bank’s need for human capital and therefore the banks offer these services at lower charges than normal banking as we are accustomed to. Prima facie these new products seem like the ultimate banking experience, being able to effect payment to a creditor outside of banking hours from the comfort of your home with the push of a button and even at lower rates. This ease of use without face-to-face interaction, however, inevitably led to fraudsters entering the arena with easier methods at their disposal to defraud unsuspecting victims through various trojan horses and man-in-the-mirror techniques which do not require the fraudsters to alter the victim’s identity document in order to present it to the bank’s teller to withdraw the victim’s money. These attacks are highly advanced and the victim will normally not even know that an attack has been launched on his account. With these new methods of committing fraud, the legislature had to implement certain standards the banks have to adhere to in order to protect sufficiently the bank’s customer against these attacks and to avoid the customer suffering losses.
  • Full Text:

Signatures in banking law

- Friend, Nolene

  • Authors: Friend, Nolene
  • Date: 2015-07-15
  • Type: Thesis
  • Identifier: uj:13768 , http://hdl.handle.net/10210/14032
  • Description: LL.M. (Banking Law) , This minor dissertation attempts to explore the nature of a signature and the role the signature plays in banking law and banking agreements. The definition, functions and physical form of the signature and how the courts have interpreted and implemented these principles in order to decide on the validity of a signature are explored. Further, the caveat subscriptor rule as well as the exceptions to the rule and the issue of consensus between contracting parties by means of a signature is examined. The question whether banks may rely on a consumer’s signature on a standard form agreement is dealt with, as well as the extent to which banks are obliged to explain the terms before allowing a consumer to sign the agreement. Relevant legislation is analysed especially in relation to the importance and necessity of a consumer’s signature and the banks’ obligations in this regard.
  • Full Text:

The doctrine of unconscionability as an independent exception to the doctrine of independence in documentary credit practice

- Woolf, Howard Shane

  • Authors: Woolf, Howard Shane
  • Date: 2015-07-15
  • Subjects: Good faith (Law) - South Africa , Unconscionable contracts - South Africa , Fraud - South Africa
  • Type: Thesis
  • Identifier: uj:13772 , http://hdl.handle.net/10210/14037
  • Description: LL.M. (Banking Law) , It has long been the vogue that the traditional fraud exception is the only exception capable of defeating the doctrine of independence in documentary-credit and performance-guarantee practice. The reason for this is self-explanatory, for it has been stated authoritatively that fraud unravels all. And on construction, this must be the correct legal position. Even then however, the fraud exception is not in itself unassailable. Given the nature and exigency of the contractual relationships peculiar to documentary credits and performance guarantees, it is indubitable for their success that these unique contractual relationships be independent of one another. The latter argument is well established in the law and practice of many jurisdictions. Commercial comity, aspirations, expediency, fair trading and a measure of certainty, inter alia, dictate the necessity for the sanctity and preservation of the doctrine of independence. Without such certainty, international commercial enterprise and entrepreneurship will be the victims. Nevertheless, it would still be fair to state that there is a broad consensus within various jurisdictions regarding the application of a fraud exception to the doctrine of independence, which simply cannot be said for an exception based on unconscionability. There are cogent reasons for this disparity, some in favour of and some against an unconscionability exception. The question which begs an answer is whether the recognition of such an exception would erode the certainty and cash characteristics, inherent and integral to documentary credit and performance guarantee practice. These instruments were, after all, designed and predicated upon tenets of certainty and considered as immediately redeemable cash. Ultimately, this debate involves a choice between embracing commercial certainty on the one hand, and fairness on the other hand. In South Africa however, unconscionability does not exist as a specific concept of law with wide and uncertain parameters. But, the concept of good faith, equally confusing, awkwardly finds its place in the South African general law of contract, but in an informative capacity to the substantive requirements of the law, and not as an independent general defence. A defence in the general law of contract in South Africa, premised on the lack of good faith is bad in law, given the established brocards such as inter alia, caveat subscriptor, caveat emptor, pacta sunt servanda, 5 and the contra proferentem rule. South African legal heritage and precedent have jettisoned the exceptio doli generalis, and this precedent is peculiarly protected by the judiciary at the highest level. Good faith, in the South African context, is not the equivalent of the so called doctrine of unconscionability analysed and discussed in the academic literature and court decisions of certain common-law jurisdictions, but the exceptio doli generalis may have been, or rather, if properly developed, could have been. And so, from a South African perspective, there is the added difficulty of considering the introduction of a foreign broad-based, uncertain and undefinable doctrine grounded in equity, when the narrowly defined concept of good faith, only informative of the substantive law, finds no general application in the law of contract in South Africa. Regard will thus be had to inter alia: the nature, scope and elements (facta probanda) of this exception; certain arguments for and against its recognition; its inability to be defined with the necessary precision required for legal efficacy and practice; its lack of certainty being in essence descriptive of a host of other conduct short of fraud and inclusive of fraud; and whether the case for its recognition might perhaps have merit and applicability in relation to performance guarantees, separate and distinct from documentary credits.
  • Full Text:

The impact of Section 34 of the Constitution of the Republic of South Africa, 1996 on banking law

- Ngwenyama, Lerato Rudolph

  • Authors: Ngwenyama, Lerato Rudolph
  • Date: 2016
  • Subjects: South Africa. Constitution of the Republic of South Africa, 1996 , Banks and banking - South Africa , Banking law - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/124444 , uj:20918
  • Description: Abstract: The dissertation explores the impact of section 34 of the constitution of the Republic of South Africa, 1996 on certain aspects of banking law. During parliamentary sovereignty, the parliament and the executive could enact legislation ousting the jurisdiction of courts to adjudicate public-administration matters. However, the constitution in section 34 has brought changes to our banking law by compelling the alteration of established statutory or common law legal principles. The impact brought by section 34 of the constitution on banking law is explored by paying special focus to the law in potential conflict with section 34 of the constitution to see how the courts have addressed the issue of non-compliance with section 34 of the constitution. The law in potential conflict with section 34 of the constitution relates to mainly to manners in which courts could be by-passed by banks in the protection of their interests. Against this background this dissertation discusses and analyses case law in this regard which has contributed towards the development of both our common law and statutory law some of which was in conflict with section 34 of the constitution by limiting unfairly the right of access to court guaranteed by section 34 of the constitution. The following five topics are dealt with specifically: section 38(2) of the Northwest Agricultural Bank Act 14 of 1981; sections 34(3) (b) to (7), (9) and (10) and 55(2) (b) to (d) of the Land Bank Act 13 of 1944; Perfecting clauses in notarial bonds of movables without court intervention; Rule 8 of the Uniform Rules of the High Court; and section 2 of the Vexatious Proceedings Act 3 of 1956. , LL.M. (Commercial Law)
  • Full Text:

A legal analysis of Bank Payment Obligations

- Annamalai, Ravashni

  • Authors: Annamalai, Ravashni
  • Date: 2017
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/242928 , uj:25072
  • Description: LL.M. (Banking Law) , Abstract: The increased use of settling transactions on an open account1 in international trade, the pressures to reduce costs, improve efficiencies and the inevitable move to utilise electronic processes has resulted in a need for a new solution for the payment of transactions between importers/buyers and exporters/sellers.2 Bank payment obligations (BPOs), the solution developed by the Society for Worldwide Interbank Financial Telecommunication (SWIFT)3 and the Banking Commission of the International Chamber of Commerce (ICC), are irrevocable undertakings given by an obligor bank to a recipient bank to pay a specified amount on the condition of a successful electronic matching of data or acceptance of mismatches.4 BPOs are distinct from the traditional methods relied on by importers and exporters as the terms of engagement are based on an agreed event referred to as a baseline and the technical matching of data generated by SWIFT’s transaction-matching application referred to as Trade Services Utility. This dissertation focuses on the manner in which a BPO is established and structured, the legal obligations of the parties, specifically the banks, and establishing liability between the parties outside of the BPO. The BPO was implemented to cater for the needs of the importers and exporters and to provide an efficient means of settling transactions. However, this payment method has not gained the desired traction within local trade sectors or the banking sectors. This dissertation explores the reasons why this payment method has not gained the expected acceptance from financial institutions or the main parties to import or export transactions. The information gathered and reviewed pertains mainly to literature in the form of published works, rules developed specifically for trade instruments, articles, case studies and guidelines published or made available by the ICC.
  • Full Text:

Beyond fraud : a critical analysis of illegality as potential exception to the autonomy principle in the law of demand guarantees and letters of credit

- Olowolafe, Omotola Afolabi

  • Authors: Olowolafe, Omotola Afolabi
  • Date: 2017
  • Subjects: Letters of credit , Documentary credit - Law and legislation , Fraud
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/236910 , uj:24263
  • Description: LL.M. (Banking Law) , Abstract: The debates and questions surrounding illegality as an exception to the seemingly immaculate autonomy doctrine of documentary letters of credit and demand guarantees are not few. Fraud on the part of the beneficiary of these abstract instruments of payment is the established, and recognized exception in law to this doctrine in most jurisdictions around the globe. However, over the years, legal trends have suggested that fraud might not necessarily and totally be able to cover the many loopholes that this doctrine has been or might be exposed to. For this reason, amongst others, different exceptions have cropped up in many jurisdictions around the world. The illegality exception is just one of the few alternatives to the entrenched fraud exception. The illegality exception is not without its troubles. Since it has not really been entrenched in most jurisdictions, including here in South Africa, many questions as well as debates regarding its potency in law and the rules governing it, is understandably on the lips of many. For instance, some have argued that the illegality exception is more beneficial in the view of a larger public interest than the fraud exception. In the Mahonia case, an English case, the court remarked that “if a beneficiary should as a matter of public policy (ex turpi causa) be precluded from utilising a letter of credit to benefit from his own fraud, it is hard to see why he should be permitted to use the courts to enforce part of an underlying transaction which would have been unenforceable on the grounds of illegality if no letters of credit had been involved, however serious the illegality involved.” On the other hand in the well-known United City Merchant case the court was reluctant to admit to the possibility of an illegality exception when it had the opportunity to do so. It simply remarked that instead of “illegal” such contracts will simply be “unenforceable”. The logical question therefore is: unenforceable based on which grounds? The court in the Group Josi case dealt with the position the United City Merchant case had earlier adopted. Staughton J in Group Josi accepted that illegality is a separate defence from the fraud but fell just short of settling this position in law. Central to this paper, therefore, is the critical discussion and evaluation of the different sides to the debates surrounding the recognition, scope of application as well as the effects of the illegality exception. The author will look at different cases from a number of jurisdictions, but basically focusing on the English law, in his critical analysis of this exception. In addition, the opinions and positions of academic writers and experts in the field of letters of credit and...
  • Full Text:

Demand guarantees in the construction industry : a comparative legal study of their use and abuse from a South African, English and German perspective

- Marxen, Karl

The development in the level of compliance in the law of demand guarantees

- Phiri, Joyce

  • Authors: Phiri, Joyce
  • Date: 2017
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/242905 , uj:25069
  • Description: Abstract: The doctrine of strict compliance is a well-established principle in letter-of-credit law, which has also found application in demand guarantees. The doctrine holds that the beneficiary is only entitled to be paid in accordance with the letter of credit if it has complied strictly with the documentary conditions set out in the letter of credit. Many decisions have been handed down in a quest to ascertain what constitutes strict compliance. This has led to much debate in that area of law and has extended to the question of whether the doctrine applies with equal force to demand guarantees. It is the purpose of this research to ascertain the level of compliance required in demand guarantees and whether such compliance can be equated to strict compliance. , LL.M. (Banking Law)
  • Full Text:

The imposition of South African anti-money-laundering rules by South African banks on subsidiary banks located in foreign countries : a legal analysis

- Gani, Imtiaz

  • Authors: Gani, Imtiaz
  • Date: 2017
  • Subjects: Money laundering , Financial institutions , Money - Law and legislation , South Africa. Financial Intelligence Centre Act, 2001 , Financial services industry - Law and legislation
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/237008 , uj:24276
  • Description: LL.M. (Banking and Stock Exchange Law) , Abstract: Money laundering and terrorist financing is a global issue. The advent of new technologies such as the internet and the impact of globalisation have forced businesses including banks to re-evaluate their business models. One of the key strategies currently being employed by South African banks is diversification of business interests through the establishment of subsidiary banks throughout the African continent. It is precisely this strategic shift which has exposed weaknesses in the management of money laundering risks as the South African banks are expected to ensure that the home country anti-money laundering standards are imposed on the subsidiary banks. The South African anti-money laundering regime is considered to be strong within the global context. However, the current Financial Intelligence Centre Act was not developed, and does not cater, for the position where home country anti-money laundering standards are to be imposed on subsidiaries. Even if the Act did cater for this position there would need to be intergovernmental agreements in place to give effect to the South African provisions on the subsidiary banks. Additional legislation such as the Banks Act provides for oversight and attempts to ensure that the standards are met to a degree. However, the Banks Act is applicable to the South African banks, and not to the subsidiaries due to sovereignty of state. It does to a degree require agreement between the various regulators of the countries involved. The countries involved in these cross-border acquisitions are often at different phases of their social, political and economic development and may not have the same resources that South Africa has at its disposal. What occurs when there is a conflict between the legislation of the subsidiary and the home country or if it is simply impractical to impose the standards of the home country to the subsidiary? The risk to South African banks and the South African economy are great as apart from a fine from the South African regulator, there could be a perception that the South African banks’ anti-money laundering framework is not as strong as perceived. The South African banking sector is viewed as a first-world sector. A perception that the banking sector has been weakened through cross-border subsidiary bank acquisitions could lead to a loss of international investments, international business or could even be a determining factor in a ratings downgrade to the South African economy. The dissertation was compiled reviewing all applicable legislation of South Africa as well as that countries where banks were acquired as subsidiaries, the letters of approval from the South African Reserve bank together with conditions and duties imposed on the approval, as...
  • Full Text:

A comparative legal perspective on the impact of good or bad faith on the independence of documentary credits and demand guarantees

- Lupton, Cayle Selwyn

South African banking law and cryptocurrencies

- Gcaba, Praisegod Nthutuko Thabo

The finality of payment in a tripartite credit card

- Bangayongo, Tambala Serge

  • 1
  • Disclaimer
  • Privacy
  • Copyright
  • Contact