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Financial Institutions Legal Snapshot

POPI compliance – have you considered your existing data protection measures?

By Desiree Reddy (ZA) & Claire Friedman

July 3, 2020

The majority of the Protection of Personal Information Act 2013 (POPI) effectively commenced on 1 July 2020. The sections that commenced deal with how personal information (which is any information that can identify and infringe the privacy rights of a natural or juristic person) may be processed in South Africa or transferred across borders. As POPI compliance initiatives gain momentum, regulated entities are advised to consider the measures regulated by existing legislation regarding the protection of…

Financial Institutions Legal Snapshot

Interpreting insurance contracts: a refresher (part 1)

By Donald Dinnie

July 2, 2020

The Supreme Court of Appeal judgment of Centriq Insurance Company Limited and Oosthuizen contains a useful summary of the general principles of interpretation of insurance policies and other contracts: Insurance policies are contracts like any other. Contract provisions must be construed having regard to their language, context and purpose in what is a unitary exercise. A business-like or commercially sensible meaning must be preferred. The analysis is objective and is aimed at what the parties…

Financial Institutions Legal Snapshot

Courts will rarely refuse to enforce contracts on grounds of public policy

By Siyabonga Mathe & Romy Allen

July 2, 2020

Contracting parties cannot escape the enforcement of a contract on the basis of the terms being contrary to public policy unless they can prove that the terms are so unfair, unreasonable or unjust in the circumstances that a court should intervene. The Constitutional Court reaffirmed that although constitutional values such as Ubuntu, reasonableness and fairness are fundamental to our law of contract, they do not constitute free-standing rules that courts can employ to intervene in…

Financial Institutions Legal Snapshot

Progressive changes for the retirement fund industry in FSCA draft Conduct Standards

By Amina Yuda

June 29, 2020

On 8 June 2020, the Financial Sector Conduct Authority published three draft conduct standards for public comment to be made by 31 July 2020. The purpose of the draft conduct standards is to regulate the: conditions for living annuities in an annuity strategy; communication of benefit projections to members of pension funds; and conditions for investment in derivative instruments for pension funds. Conditions for living annuities in an annuity strategy The Draft Conduct Standard requires…

Financial Institutions Legal Snapshot

Supplementary budget 2020

By Belinda Sussman & Dale Cridlan

June 29, 2020

South Africa’s Finance Minister Tito Mboweni delivered a supplementary budget on Wednesday 24 June 2020, highlighting that business confidence will remain near historic lows, with investment and employment remaining constrained. This emergency budget comes only four months after the National Budget which has been left defunct in the wake of COVID-19 and a three-month lockdown which has taken a severe toll on the economy. This supplementary budget will be a bridge to the October 2020…

Financial Institutions Legal Snapshot

Mediate before you litigate

By Busisiwe Nhlapo

June 28, 2020

An amendment to the High Court Rules (Rule 41A) which came into effect from 9 March 2020 has made it mandatory for parties to consider mediation at the outset of any contemplated litigation. There are a number of judgments where the courts have censured the parties’ and their representatives’ failure to consider alternative dispute resolution mechanisms such as mediation to resolve their issues. This is because litigation is, at the best of times, a time-consuming…

Financial Institutions Legal Snapshot

Prescribed rate of interest is 8.75% from 1 May 2020

By Patrick Bracher (ZA)

June 28, 2020

The prescribed rate of interest has been changed with effect from 1 May 2020 to 8.75% per annum. The previous rate was 9.75%. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all debts unless a different rate is set by law, by trade custom or by agreement between the parties. The parties…

Financial Institutions Legal Snapshot

Refund of overpayment of insurance benefit because error was excusable

By Siyabonga Mathe

June 24, 2020

An insurer (like any other erroneous payer) can recover a benefit erroneously paid under an insurance policy if its conduct in making that payment was not inexcusably negligent. In deciding whether the erroneous conduct is excusable, the court will take into account a number of factors, including: the relationship between the payer and the recipient; the conduct of a payment recipient; whether the recipient was aware that they were not entitled to receive the payment…

Financial Institutions Legal Snapshot

South African Data Privacy laws finally come into force

By Rosalind Lake (ZA) & Priyanka Naidoo

June 22, 2020

On 22 June 2020, the effective commencement of the Protection of Personal Information Act 2013 (POPI) was gazetted as 1 July 2020. Anyone processing personal information in South Africa will have a 12 month grace period to ensure that they comply with the requirements of POPI. After 1 July 2021, any non-compliance with POPI will have consequences. Enforcement mechanisms under POPI include penalties up to R10 million, civil proceedings instituted by data subjects, and criminal…

Financial Institutions Legal Snapshot

Must a union hold a secret ballot before calling a strike?

By Verushka Reddy

June 22, 2020

An attempt to stop NUMSA from calling a strike because it had not held a secret ballot failed. In the matters between NUMSA and Mahle Behr and NUMSA and Foskor with AMCU as amicus curiae the Labour Appeal Court had to determine whether in the absence of compliance with the transitional provisions of the Labour Relations Amendment Act 2018 (LRAA) a registered union may be interdicted from striking, without having conducted a secret ballot. The…

Financial Institutions Legal Snapshot

South African banking, finance and insurance law know-how

Blog Authors

POPI compliance – have you considered your existing data protection measures?

Interpreting insurance contracts: a refresher (part 1)

Courts will rarely refuse to enforce contracts on grounds of public policy

Progressive changes for the retirement fund industry in FSCA draft Conduct Standards

Supplementary budget 2020

Mediate before you litigate

Prescribed rate of interest is 8.75% from 1 May 2020

Refund of overpayment of insurance benefit because error was excusable

South African Data Privacy laws finally come into force

Must a union hold a secret ballot before calling a strike?

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