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Publication

DE REBUS

Page

5

Date

Thurs 01 Mar 2018

AVE (ZAR)

25415.26

EDITOR'S NOTE

A new dawn for South Africaince the release of the 'State ofCapture' report by former PublicProtector Thuli Madonsela in2015, the country and the legalprofession has watched with

interest to see if the report would resultin any changes in the country. Thismonth's edition of De Rebus is a reflectionof what has been unfolding in the countryover the past few years, which climaxedwith the resignation of former PresidentJacob Zuma on 14 February.

In our letters section, Leslie Kobrinlends his opinion on the ConstitutionalCourt case Economic Freedom Fightersand Others v Speaker of the NationalAssembly and Another (CC) (unreportedcase no CCT76/17, 29-12-2017). The letterhighlights the need for an independentjudiciar y that is able to discharge itsobligation without fear, favour orprejudice. This is important particularlyduring a time when the Executive isriddled with controversy (see p 4).

In the Law Society of South Africa(LSSA) news section, the LSSA welcomedthe decision by the National ExecutiveCommittee (NEC) of the African NationalCongress to recall President Zumaamid all the allegations of corruptionrelated to the imminent reinstatementof the 'spy tapes' criminal charges,and the allegations around complicityin state capture. In addition, LSSA Co-chairpersons Walid Brown and DavidBekker have noted that public officialsshould be prepared to step down andoffer to resign at the mere suggestion ofimpropriety on their parts (see p 17).

Highlighting how corruption impactson the financial regulatory frameworkof South Africa (SA), in our cover featurearticle Nkateko Nkhwashu writes aboutthe genesis of the 'Gupta clause '. Thebasis of this feature article is twopieces of legislation. The first being theFinancial Sector Regulation Act 9 of 2017,which seeks to establish a dual systemof financial regulation in SA comprisingof the Prudential Authority and the

Financial Sector Conduct Authority. Thesecond being the Financial IntelligenceCentre Amendment Act 1 of 2017,which seeks to formally introducea risk-based approach to customeridentification and verification in SA.It is a trite principle of law in SA thatbanks are not legally compelled to givereasons for terminating relationships orclosing customers' accounts. However,due to political dynamics and otherpolicy developments within the financialregulatory framework of SA it seems asthough this is about to change (see p 26).

In our law reports section, theSupreme Court of Appeal case of Zumav Democratic Alliance and Others2018 (1) SA 200 (SCA); [2017] 4 SA AllSA 726 (SCA), demonstrates that infact controversy surrounding formerPresident Zuma dates back to 2007 whenhe was elected president of the AfricanNational Congress (see p 37).

In the opinion section, NdivhuwoIshmel Moleya's article notes thatalthough- lawful, the- appointmentof sitting judges to preside overcommissions of inquiry is an undesirablepractice. The opinion article notesthat the appointment of Deputy ChiefJustice Raymond Zondo to preside overthe commission of inquiry stipulatedby the State of Capture report, shouldbe welcomed as it will bring integrityinto the works of the commission.However, this brings into sharp focusthe question of the appropriateness ofappointing serving judges to presideover commissions of inquiry (see p 47).

Legal practitioners are reminded, invarious articles in our AGM news andnews section, that during Apartheid itwas lawyers who brought about changeand held the state accountable for itswrongdoings. Therefore, practitionersshould not be bystanders and watchwhile the state is overtaken by corruption(see p 5 and 9).

Q

DCDI ICina n

Mapula Sedutla - Editor

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