LML4807 EXAM PACK

Question 1: Define Banking That part of the law that regulates the legal relations of banks in their capacity as FINANCIAL institutions. Question 2: Define public-banking law The public banking law governs the legal relationships between banks and government organs (especially the Registrar of Banks) whom are in a position of authority to the banks and includes legal rules providing for state control over money and banking in general and banking operations in particular. Question 3: Define private-banking law The civil banking law governs the legal relationships between banks and their clients as well as third parties who contract with banks or in another way affected by banking operations. This part of the banking law is mainly applied obligations (contract and delict). Question 4: What is the main provision on fundamental rights? (Article 33) • Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. • Everyone whose rights are adversely affected by administrative action, the right to be given written reasons. • National legislation must be enacted to give these rights to give effect and should: 1 - provision for review of administrative action by a court or, where appropriate, an independent and impartial tribunal; 2 - state is obliged to provide the rights in subsections (1) and (2) to give effect, and 3 – promote an effective administration. Question 5: How to ensure the right continued efficient functioning of the banking system? • public banking law that control and regulate banking institutions to ensure their solvency • civil banking law which provides legal certainty regarding the rights and obligations that arise when individual transactions take place LML4807 EXAM PACK. 2 Question 6: To what extent can the fundamental rights under section 36 (1) for general applicable law be limited? • When its reasonable • “justifiable in an open and democratic society based on human dignity, equality and freedom”. • and taking into account all relevant factors, including the following: . the nature of law . the importance of the purpose of limiting . the nature and extent of the restriction . the relationship between the limitation and its purpose and . A less restrictive way to the goal Question 7: What is the primary objective of the Reserve Bank? Pursuant to section 224 (1) –to protect the domestic and foreign value of the currency in the interest of balanced economic growth in the Republic. 3 Study Unit 2: Sources of Banking law Question 1: What are the sources of banking law? • Banks Act • Inspection of Financial Institutions Act • Financial Institutions Act • The SA Reserve Bank Act • The Currency an Exchange Act Question 2: What is a local custom? A rule in a particular place or area force obtained as a result of prolonged pursuit. eg Van Breda v Jacobs Question 3: What is the role of the banking adjudicator? He acts as referee between banks and their clients whenever a dispute between the latter two parties is referred to the adjudicator for adjudication. Question 4: What is the Bank Code? The Banking Code is a lengthy document that provides for a wide range of aspects relating to the banker-client relationship Question 5: What does the banking code include? • The bank must provide information to his client with regards to services the bank offers • accounts the customer holds at the bank • bank fees the bank charge for such services and accounts • protecting the client's personal information Question 6: Write a short note in which you explain the relevance of English Law in SA banking law? (5) SA banking system displays strong resemblance to the English banking system because of its historical links. However there is substantial difference between the English and SA legal systems but where SA law is silent on a matter appertaining to banking practice, the decisions of English courts have had strong persuasive authority. SA common law is Roman Dutch law however the RD authors did not write specifically about banking law however there are a number of books on English banking law. English law is accessible, whereas SA banking law is still largely unexplored