Selected challenges associated with the reliance on customer due diligence measures to curb money laundering in South African banks and related financial institutions

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

Selected challenges associated with the reliance on customer due diligence measures to curb money laundering in South African banks and related financial institutions

Authors: Howard Chitimira and Sharon Munedzi

ISSN: 2521-2605
Affiliations: LLB, LLM (UFH), LLD (NMMU). Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University; LLB, LLM (NWU), LLD candidate, Faculty of Law, North-West University. 
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 42 – 66
https://doi.org/10.47348/JCLA/v8/i1a2

Abstract

Customer due diligence is a means of ensuring that financial institutions know their customers well through know-your-customer (KYC) tools and related measures. Notably, customer due diligence measures include the identification and verification of customer identity, keeping records of transactions concluded between a customer and the financial institution, ongoing monitoring of customer account activities, reporting unusual and suspicious transactions, and risk assessment programmes. Accordingly, financial institutions should ensure that their customers are risk assessed before concluding any transactions with them. The regulation of money laundering is crucial to the economic growth of many countries, including South Africa. However, there are still numerous challenges affecting the banks and other role players’ reliance on customer due diligence measures to combat money laundering in South Africa. Therefore, a qualitative research methodology is employed in this article to unpack such challenges. The challenges include the failure to meet the identification and verification requirements by some South African citizens, onerous documentation requirements giving rise to other persons being denied access to the formal financial sector, and the lack of express provisions to regulate the informal financial sector in South Africa. Given this background, the article discusses the challenges associated with the regulation and implementation of customer due diligence measures to enhance the combating of money laundering in South African banks and related financial institutions. It is hoped that the recommendations provided in this article will be utilised by the relevant authorities to enhance customer due diligence and effectively combat money laundering activities in South African banks and related financial institutions.

States of emergency and the rule of law under contemporary African constitutions: A comparative analysis

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

States of emergency and the rule of law under contemporary African constitutions: A comparative analysis

Author: Lukman Adebisi Abdulrauf

ISSN: 2521-2605
Affiliations: Senior lecturer, Department of Public Law, University of Ilorin, Nigeria.
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 67 – 101
https://doi.org/10.47348/JCLA/v8/i1a3

Abstract

Emergencies, whether natural or man-made, are inevitable in contemporary societies. Although the nature and magnitude of such emergencies are usually unpredictable, governments across the world must adopt measures to mitigate and control the emergency while securing the lives and properties of the people. Since emergencies envisage exceptional circumstances, there may be the need for the suspension of the normal legal order and its temporary replacement with an extraordinary regime to help restore the normal legal order. During the subsistence of the extraordinary regime, the question that has always concerned modern-day constitutionalists is how the rule of law can be maintained in such a regime which is characterised by the suspension of the normal legal order. This concern is even more apparent in Africa considering the general attitude of political leaders who will want to take advantage of every opportunity to abuse human rights, consolidate powers and remain in government. All these concerns therefore centre on the nature and scope of state of emergency provisions in constitutions and their implementation. Therefore, in this article, I will comparatively analyse the nature and scope of state of emergency provisions under modern African constitutions to determine the extent to which they are inclusive and embrace the basic tenets of the rule of law. I will further interrogate the applicability of the rule of law in states of emergency using recent practices in selected African countries.

Companies convicted of economic crimes and their participation in government tender processes in South Africa: A comment on Namasthethu electrical (PTY) LTD v City of Cape Town and another (201/19) [2020] ZASCA 74 (29 JUNE 2020)

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

Companies convicted of economic crimes and their participation in government tender processes in South Africa: A comment on Namasthethu electrical (PTY) LTD v City of Cape Town and another (201/19) [2020] ZASCA 74 (29 JUNE 2020)

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape.
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 102 – 122
https://doi.org/10.47348/JCLA/v8/i1a4

Abstract

In South Africa, persons or companies convicted of fraud or corruption or companies whose directors have been convicted are debarred from participating in bidding for government tenders. Although it is easy to establish whether or not a natural person has been convicted of an offence, because a certificate can be obtained from the South African Police Service to that effect, it is the opposite with juristic persons. This issue came up in the case of Namasthethu Electrical (Pty) Ltd v City of Cape Town and Another in which the appellant company was awarded a government tender although the company and its former director had been convicted of fraud and corruption. The purpose of this article is to analyse this judgment and show the challenges that the government is faced with when dealing with companies that have been convicted of offences that bid for government tenders. Because South Africa is in the process of enacting public procurement legislation, the Public Procurement Bill was published for comment in early 2020. One of the issues addressed in the Bill relates to debarring bidders who have been convicted of some offences from bidding for government tenders. Based on the facts of this case and legislation from other African countries, the author suggests ways in which the provisions of the Bill could be strengthened to address this issue.

Book Review: Jurisprudence: Theory and context 8 ed by Brian Bix, London: Sweet & Maxwell, 2019

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

Book Review: Jurisprudence: Theory and context 8 ed by Brian Bix, London: Sweet & Maxwell, 2019

Author: Edmund Ato Kwaw

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape.
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 123 – 126
https://doi.org/10.47348/JCLA/v8/i1a5

Abstract

None

Assessing the efficacy of forum selection agreements in Commonwealth Africa

by | Feb 27, 2021 | JCLA, JCLA V7 I2 2020

Assessing the efficacy of forum selection agreements in Commonwealth Africa

Author: Theophilus Edwin Coleman

ISSN: 2521-2605
Affiliations: BA LLB LLM LLD; Postdoctoral Research Fellow, Centre for International and Comparative Labour and Social Security Law (CICLASS), University of Johannesburg, Republic of South Africa.
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 1 – 40
https://doi.org/10.47348/JCLA/v7/i2a1

Abstract

Any international commercial agreement has the potential to be the subject of a dispute. In resolving international commercial disputes, parties to a contract are at liberty to choose any dispute resolution mechanism that best serves and meets their commercial interests. Generally, parties to an international commercial contract may resort to courtroom litigation or choose an alternative dispute resolution (ADR) mechanism as a method of resolving their transnational disputes. Underlying almost every international commercial contract, therefore, is a very primary question about where, by whom and how the parties prefer their disputes to be litigated. The response to this question depends on whether parties prefer traditional courtroom litigation, or an ADR mechanism. In most instances, countries put in place dispute resolution regimes that seek to afford contracting parties the liberty to submit their disputes to a foreign forum or an arbitral tribunal for legal redress and/or a remedy. However, while the efficacy of resolving international disputes through arbitration has garnered immense international and domestic support, the submission of disputes by parties to a foreign forum through a forum selection agreement is regarded with much ambivalence in most countries. This article assesses the efficacy of forum selection agreements in Commonwealth Africa. It appraises the judicial approach of courts in Commonwealth African countries relative to the essence and effect of forum selection agreements. This article argues and calls for a higher degree of judicial commitment to the juridical choices of private individuals who are party to an international commercial contract, especially with regard to forum selection agreements.

A re-examination of the conflict rules governing the validity of international contracts

by | Feb 27, 2021 | JCLA, JCLA V7 I2 2020

A re-examination of the conflict rules governing the validity of international contracts

Author: Prince Obiri-Korang

ISSN: 2521-2605
Affiliations: BSc LLB (Cape Coast), PLT LLM LLD (Johannesburg). Postdoctoral Research Fellow, Research Centre for Private International Law in Emerging Countries, Faculty of Law, University of Johannesburg.
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 41 – 59
https://doi.org/10.47348/JCLA/v7/i2a2

Abstract

Generally, under choice of law, the issue of uncertainty associated with the determination of the governing law of international contracts is quite clear. The level of this uncertainty, however, increases when dealing with questions about which law governs the validity of such contracts. Like other areas of private international law, matters concerning validity present several unique challenges both in theory and in practice, making it the most complicated topic in private international law literature. In fact, the uncertainty in this area has led to a situation where different rules are applied by different states, without taking into consideration the link that should exist between the state whose law becomes applicable and the function that the law is expected to serve – determining the validity of a contract. This article attempts to contribute to existing literature on choice of law questions regarding the validity of international contracts and also provides solutions, based on the underlying principles of private international law of contract that effectively address the uncertainty in this area of law. The article submits that the law that governs the validity of an international contract must, at all times, be one that has a legitimate interest in matters concerning the legality or otherwise of such contracts. In this regard, the article strongly opposes the theory that the parties’ intention determines the law that governs the validity of their contract. After a careful examination of literature and landmark judicial decisions in both civil law and common law jurisdictions, the article concludes that the lex loci solutionis is the appropriate law to determine matters relating to the validity of international contracts.