Latest Issue - Quarter 4 2021

BLENDED FINANCE: ADDRESSING THE INFRASTRUCTURE GAP BANKING & FINANCE IN AFRICA FEATURE

It is common knowledge that the lack of infrastructure in developing countries inhibits their economic growth and development, and that a significant amount of capital is required to address this.

WHEN CAN YOU SUE YOUR FINANCIAL ADVISER FOR LOSSES SUSTAINED? BANKING & FINANCE IN AFRICA FEATURE

Thousands of South Africans place their trust in financial advisers to professionally manage their money and their futures. Unfortunately, sometimes investors lose their money, but it is not always as a result of professional negligence on the part of financial advisers.

PRESCRIPTION DURING DEBT REVIEW UNDER THE NATIONAL CREDIT ACT BANKING & FINANCE IN AFRICA FEATURE

Does prescription apply to a claim after an application for debt review was made?

CRYPTO ASSETS AND THE NEED TO CREATE A REGULATORY FRAMEWORK BANKING & FINANCE IN AFRICA FEATURE

The value, use and disruptive nature of crypto currencies remains a highly contentious topic in the regulatory sphere. An asset previously associated with anarchy and youthful rebellion is slowly but surely becoming an asset class that a sophisticated fund manager may insist on having in a balanced portfolio. The South African regulators are adopting a wait-and-see approach, which is creating uncertainty in the regulatory market from both a legal and commercial perspective. The Receiver of Revenue is in the fortunate position that the principles captured in the Income Tax Act (58 of 1962) is more forgiving and adequately deals with the taxation of crypto assets without the South African Revenue Service (SARS) having to reinvent the wheel.

LAW FIRMS UNDER ATTACK BANKING & FINANCE IN AFRICA FEATURE

Law firms remain targets of cyber-criminals, largely due to the vast amounts of client data, information and money that they retain, and the continued refusal by a large number of law firms to take basic precautions when it comes to their cyber security posture. Security posture indicates a firm's overall state of cybersecurity readiness.

THE CYBERATTACK ECLIPSE BANKING & FINANCE IN AFRICA FEATURE

The cybercriminal uses the internet to facilitate traditional crimes such as illicit drugs, and human trafficking, as well digital crimes like intellectual property theft, cryptocurrency theft and identity theft. The consequences of cybercrimes have economic, public health and national security implications. July saw a cyberattack on Transnet, and most recently, on the Department of Justice and the South African Space Agency. It has become clear that cybercrime is becoming more prominent where an organisation's functionality is eclipsed for a period.

SMART CONTRACTS BANKING & FINANCE IN AFRICA FEATURE

In 1994, lawyer, cryptographer and Bit Gold creator, Nick Szabo coined the term, "smart contract". Szabo pioneered smart contracts in an effort to, inter alia, advance classic contract law in order to formalise 'digital cash' and online business relationships in a free market economy.

APPLICATION OF MATRIMONIAL PRINCIPLES WHEN RETIREMENT BENEFITS ARE RE-INVESTED BANKING & FINANCE IN AFRICA FEATURE

In South Africa, civil and customary marriages, as well as civil unions, are currently the only forms of intimate relationships that automatically attract legal rights and obligations accorded by the law. These forms of intimate relationships also attract legal consequences when they dissolve. Those who are party to '… unmarried intimate relationships have very few legal rights, except for the occasional cases granting rights to share in partnership assets on the basis that the partners had concluded tacit partnership agreements' (South African Law Reform Commission 'Single Marriages Statute' Project 144: Issue Paper 35 (31 August 2019) 12).

CONSTITUTIONAL COURT’S LANDMARK RULING ON ADOPTED CHILDREN INHERITING FROM A TRUST BANKING & FINANCE IN AFRICA FEATURE

When Dulcie Harper launched legal action to ensure that her two adopted children would inherit from their grandfather's trust, just like his other grandchildren, very few lawyers would have put money on her success.

COMBATTING CRIME THROUGH THE ANTI-MONEY LAUNDERING AND COUNTER TERRORIST FINANCING MEASURES BANKING & FINANCE IN AFRICA FEATURE

The high crime rate in South Africa constitutes a serious threat to society, the people and the economy. More than half of all reported crimes in South Africa are proceeds-generating crimes, which violate citizens' lawful rights and livelihoods.

INTRODUCING BOWMANS BANKING AND FINANCE DEPARTMENT BANKING & FINANCE IN AFRICA FEATURE

With eight offices in six countries and more than 100 years of practising law, Bowmans knows how to handle complex legal matters in Africa.

The future of work Management

The Future of Work Report was released by Herbert Smith Freehills (HSF) in August 2021. The Report is the product of a survey of 375 firms across the globe, and several interviews with members of senior management between 2020 and 2021.

A butterfly landing on your shoulder Management

In the UK, as summer allows us to slip from her grasp, we turn up our collars and look to find our way through the cooler mists and softer lights of autumn. I know that I am also moving into the autumn of my career. A time, therefore, to make the most of the light in each day, to reflect, and hopefully to share well.

In the review application of all laws banning face veils Half a face is better than no head Not The Law Reports

Foss-Harbottle J: I decided to come out of retirement to review all laws and judgments internationally banning face veils, which are universally, but never admittedly, targeted at Muslim women. You may ask what gives me the right to assume international jurisdiction. The pandemic does. If a pandemic knows no international boundaries, I do not see why my judgments should; and why they should not go viral. The trouble is that governments have assumed the right worldwide to take control of everything including our morals and beliefs. Religion is in a state and the state is in religion. But the pandemic has bought us back to reality. The socalled 'new normal' is just the latest abnormal. I consulted my 1999 edition of Black's Law Dictionary for a definition, to find: "normal, adj – According to an established rule or norm < it is not normal to deface statues". Welcome to the 21st century, Mr Black. Important human rights like the right to dignity have been lost to remoteworking people. All the false dignity that goes with displaying a R50 000 handbag or a R1 million watch has been lost, unless you wave them around on a video call. We can no longer exercise our rights to the full because everything is done in halves. All you ever see on video calls is the head and upper torso, like looking at a bust seldom as handsome as a bust of Hermes or Aphrodite, and hoping the rest is intact or at least clothed. Body language in court is no longer the all-revealing twelfth official language, now that we have online hearings.

Tales from the US of A . . . International

Petrol stations can be liable for selling fuel to drunken drivers

Gasoline stations in New Mexico can be liable for selling fuel to drivers whom they know or have reason to know are intoxicated, according to that State's Supreme Court. The court ruled that the tort of negligent entrustment of a chattel extended to gasoline sales. The court said that "providing gasoline to an intoxicated driver is like providing car keys to an intoxicated driver". In the lawsuit, an intoxicated driver ran out of gas and walked to the gas station in the early morning hours. The clerk at first refused to sell anything to the motorist because he appeared intoxicated, but he then agreed to sell him a gallon of gas. After filling up the car, the driver drove back to the gas station and bought another nine gallons of gas. The drunken driver subsequently drove across the centre line of a road and crashed into an oncoming vehicle, killing the driver. The court held that there is a duty of care to refrain from selling gasoline to a driver whom the vendor knows or has reason to know is intoxicated.

Debra Cassens Weiss July 22

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