101 - 2023 - 0 - Banking Law 1

BAN5901/101/0/2023
Tutorial Letter 101/0/2023
Banking Law I
BAN5901
Year Module
Department of Mercantile Law
This tutorial letter contains important information about your module.
BARCODE
Open Rubric
CONTENTS
Page
1 INTRODUCTION .............................................................................................................................4
2 PURPOSE AND OUTCOMES ........................................................................................................6
2.1 Purpose ...........................................................................................................................................6
2.2 Outcomes ........................................................................................................................................6
2.3 Criteria for the evaluation of learning...............................................................................................7
3 CURRICULUM TRANSFORMATION .............................................................................................8
4 CONTACTING THE UNIVERSITY VIA EMAIL...............................................................................8
4.2 Lecturer(s) .......................................................................................................................................8
4.3 Department ......................................................................................................................................9
4.4 College of Law Information Centre ..................................................................................................9
4.5 University .........................................................................................................................................9
5 10
5.1 Prescribed book(s) ........................................................................................................................10
5.2 Recommended book(s) .................................................................................................................10
5.3 Electronic reserves (e-reserves)....................................................................................................10
6 STUDENT SUPPORT SERVICES ................................................................................................12
6.1 The Unisa First-Year Experience Programme...............................................................................12
6.2 Companies falsely advertising Unisa services ...............................................................................13
7 STUDY PLAN ...............................................................................................................................13
8 PRACTICAL WORK .....................................................................................................................14
9 ASSESSMENT ..............................................................................................................................14
9.1 Assessment criteria .......................................................................................................................14
9.2 Assessment plan ...........................................................................................................................15
9.3 Assessment due dates ..................................................................................................................16
9.4 Submission of assessments ..........................................................................................................17
9.5 The assessments ..........................................................................................................................18
9.6 Other assessment methods...........................................................................................................18
9.7 The examination ............................................................................................................................18
10 ACADEMIC DISHONESTY ...........................................................................................................20
10.1 Plagiarism ......................................................................................................................................20
10.2 Cheating ........................................................................................................................................20
10.3 Academic and Administrative matters ...........................................................................................20
10.3.1 Academic Matters ..........................................................................................................................20
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10.3.2 Administrative Matters ................................................................................................................... 21

11 STUDENTS LIVING WITH DISABILITIES ................................................................................... 21
12 FREQUENTLY ASKED QUESTIONS .......................................................................................... 21
13 RESEARCH METHODOLOGY AND SHORT DISSERTATION .................................................. 21
14 SOURCES CONSULTED ............................................................................................................. 22
15 IN CLOSING ................................................................................................................................. 22
16 ADDENDUM A – LIST OF PRESCRIBED MATERIALS ............................................................. 23
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Dear Student
1 INTRODUCTION
Unisa is a comprehensive ODeL higher education institution. The comprehensiveness of our

curricula encapsulates a range of offerings, from strictly vocational to strictly academic certificates,
diplomas and degrees. Unisa's "openness" and its distance eLearning character result in many
students registering at Unisa who may not have had an opportunity to enrol in higher education. Our
ODeL character implies that our programmes are carefully planned and structured to ensure success
for students ranging from the under-prepared but with potential to the sufficiently prepared.
Teaching and learning in an ODeL context involve multiple modes of delivery ranging from blended
learning to fully online. As a default position, all post graduate programmes are offered fully online
with no printed study materials, while undergraduate programmes are offered in a blended mode of
delivery where printed study materials are augmented with online teaching and learning via the
learner management system – myUnisa. In some instances, undergraduate programmes are offered
fully online as well.
Furthermore, our programmes are aligned with the vision, mission and values of the University.
Unisa's commitment to serve humanity and shape futures combined with a clear appreciation of our
location on the African continent, Unisa's graduates have distinctive graduate qualities which include
• independent, resilient, responsible and caring citizens who are able to fulfil and serve in
multiple roles in their immediate and future local, national and global communities
• having a critical understanding of their location on the African continent with its histories,
challenges and potential in relation to globally diverse contexts
• the ability to critically analyse and evaluate the credibility and usefulness of information and
data from multiple sources in a globalised world with its ever-increasing information and data
flows and competing worldviews
• how to apply their discipline-specific knowledges competently, ethically and creatively to solve
real-life problems
• an awareness of their own learning and developmental needs and future potential
The module Banking Law II (BAN5902) is taught using a blended mode of learning. Whether a
module is offered either as blended (meaning that we use a combination of printed and online
material to engage with you) or online (all information is available via the internet), we use myUnisa
as our virtual campus. This is an online system that is used to administer, document and deliver
educational material to you and support engagement with you. Look out for information from your
lecturer as well as other Unisa platforms to determine how to access the virtual myUnisa module
site. Information on the tools that will be available to engage with the lecturer and fellow students to
support your learning will also be communicated via various platforms.
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Whether a module is offered either as blended (meaning that we use a combination of printed and
online material to engage with you) or online (all information is available via the internet), we use
myUnisa as our virtual campus. This is an online system that is used to administer, document and
deliver educational material to you and support engagement with you. Look out for information from
your lecturer as well as other Unisa platforms to determine how to access the virtual myUnisa module
site. Information on the tools that will be available to engage with the lecturer and fellow students to
support your learning will also be communicated via various platforms.
You are encouraged to log into the module site on myUnisa regularly (that is, at least twice per
week).
We are pleased to welcome you to the second master’s course in Banking Law and hope that you
will find it both interesting and rewarding. We will do our best to make your study of this module
successful. You will be well on your way to success if you start studying early in the year and resolve
to do the assignments properly.
This tutorial letter contains important information about this course. We urge you to read it carefully
and to keep it at hand when working through the study material, preparing the assignments,
preparing for the examination and addressing questions to your lecturers.
This tutorial letter also provides all the information you need with regard to the prescribed study
material and how to obtain it. Please study this information carefully and make sure that you obtain
the prescribed material as soon as possible.
We have also included certain general and administrative information about this module. Please
study this section of the tutorial letter carefully.
Apart from this tutorial letter, you will also receive other tutorial letters during the semester. These
tutorial letters will not necessarily be available at the time of registration. Tutorial letters will be
available on myUnisa.
Right from the start we would like to point out that you must read all the tutorial letters you receive
during the semester immediately and carefully, as they always contain important, and sometimes
urgent, information.
We trust that you will enjoy this module and wish you all the best!
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2 PURPOSE AND OUTCOMES
2.1 Purpose
The purpose of this module is for students to gain advanced knowledge, research skills, and applied
competence in Banking Law with special reference to the law relating to payment methods other
than negotiable instruments which are employed in the sphere of banking with particular reference
to money payments, credit cards, other payment cards, documentary letters of credit (including
electronic letters of credit), debit and stop orders, electronic payments and instruments of finance,
for continued personal intellectual growth, gainful economic activity and valuable contributions to
society.
2.2 Outcomes
This postgraduate course in banking law, LLM Banking Law I (BAN5901), is the first of two LLM
courses in banking law, the other being LLM Banking Law II (BAN5902). Both courses entail an
advanced study of certain selected aspects of this field of law that falls within the topics covered in
each module.
The following topics are covered in BAN5901:
(1) Banking and banking supervision
(2) Banks and their customers
(3) Banks, financing, financial inclusion and financial technology
(4) Money-laundering control measures
The following topics are covered in BAN5902:
(1) Money payments
(2) Paper payments and methods of payment other than negotiable instruments
(3) Electronic banking
(4) Instruments of finance
It should be apparent from the tutorial material prescribed for each of the topics that you will be
required not only to make a detailed study of South African positive law on each topic but also, where
relevant, to take cognisance of academic views relating to it, as well as noting the position and
developments in certain other legal systems. This limited comparative approach should enable you
to evaluate the present state of our positive law critically and to consider the need for and possible
direction of development or reform. In short, you will be required to do more than memorise the
prescribed material but also, throughout, to make sure that you understand the legal principles
involved and are able to evaluate them critically.
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Unisa’s tuition method is designed to encourage mature, responsible learning that enables students
to acquire sound knowledge and be able to apply and develop knowledge and competencies in the
workplace and other contexts.
The outcomes of this module are as follows:
The outcomes of this module are as follows:
• Outcome 1: Knowledge and understanding: This fundamental outcome requires you to show
that you have acquired factual or theoretical knowledge and understand and have insight into
this knowledge. During your study of this module, you will achieve this by studying the learning
content, and by applying your knowledge of the study content in self-assessment activities;
assignments and examinations; and answering questions or applying your knowledge during
discussion classes.
• Outcome 2: Application: This practical competency requires students to develop the

necessary skills to carry out practical tasks. Students will be required to apply their theoretical
knowledge of certain study content to solve simulated or real-life practical problems. During
your studies, this can be achieved by giving or developing examples, analysing and answering
questions on case studies or scenarios, designing a task, constructing a measuring instrument,
and so forth.
• Outcome 3: Attitude: This refers to developing a mature and responsible attitude and mindset
about being a student. Evidence of this will be whether you obtain your study material, read
and study it, complete assignments neatly and on time, attend discussion classes, find
additional study material and complete this module.
• Outcome 4: Value: This refers to finding value in your learning experience and understanding
that you can make a difference by studying and obtaining this qualification. For example, by
applying the knowledge and skills you learn during this module, you will be able to make a
difference in your work or other environments.
2.3 Criteria for the evaluation of learning
The outcomes and competencies mentioned above are applicable not only to your approach to your
studies (e.g. how you study and process your learning material), but also in terms of assessment
(by your lecturers and your assessment of yourself).
In the examination, you will be asked more theoretical questions (during which you will be required
to demonstrate your knowledge of the study content) and a number of applied questions (to assess
your understanding and ability to use your acquired knowledge practically). Both theoretical and
applied questions will assess how you use certain competencies, for example, your ability to
remember and analyse facts or compare ideas.
Since you are a Unisa student learning through distance education, you will also be required to
evaluate yourself; self-evaluation is an important tool for you to assess the extent to which you have
achieved the study outcomes in each study theme. Apart from the feedback on assignments, which
will give you specific guidance, you can and must use the outcomes above to assess whether or not
you have achieved the required knowledge outcomes and understanding or applied outcomes of the
study content. In this way, you will be able to identify areas in which you may need to improve your
knowledge and/or understanding.
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3 CURRICULUM TRANSFORMATION
Unisa has implemented a transformation charter, in terms of which the university has placed
curriculum transformation high on the teaching and learning agenda. Curriculum transformation
includes student-centred scholarship, the pedagogical renewal of teaching and assessment
practices, the scholarship of teaching and learning, and the infusion of African epistemologies and
philosophies. All of these will be phased in at both programme and module levels, and as a result of
this you will notice a marked change in the teaching and learning strategy implemented by Unisa,
together with the way in which the content is conceptualised in your modules. We encourage you to
embrace these changes during your studies at Unisa in a responsive way within the framework of
transformation.
4 CONTACTING THE UNIVERSITY VIA EMAIL

To assist Unisa to safeguard your personal information, please ensure that you only use your myLife
e-mail account when communicating with the university. We will not be responding to any emails
sent from private email addresses.
By using your myLife e-mail account, the university has a reasonable assurance that we are
communicating with you, as your e-mail address contains your student number and you use your
login credentials to access the account.
Unisa may only communicate with a student using a private e-mail address under the following
circumstances:
• New applicants who are enquiring about information for the purpose of applying for
admission.
• New applicants who do not yet have a myLife e-mail account, because they have been
admitted but not yet registered.
• Where a student requires assistance in resolving myLife e-mail account access

problems.
Please be aware that any personal information you publish on public platforms, such as social media
platforms and WhatsApp groups, is not covered by the provisions of Protection of Personal
Information Act 4 of 2013. Any personal information published in the public domain is not considered
private and can, therefore be accessed by external parties with access to such platforms.
4.2 Lecturer(s)
Lecturer’s name: Prof WG Schulze
Building and office number: Cas van Vuuren Building 6-59
E-mail address: schulwg@unisa.ac.za
Telephone number: 012 429-8454
Lecturer’s name: Adv MD Tuba
E-mail address: tubamd@unisa.ac.za
Lecturer’s name: Adv H de Ru
E-mail address: deruh@unisa.ac.za
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4.3 Department
Please have your tutorial material with you when you contact us by telephone.
The general contact and fax numbers for the Department of Mercantile Law are as follows:
Telephone number: +27 12 429 8460

Fax number: +27 12 429 3343
E-mail: merclaw@unisa.ac.za
4.4 College of Law Information Centre

For College-specific queries, please email lawdeanery@unisa.ac.za or
CLAWinquiries@unisa.ac.za. The college can also be contacted by phoning 012 429
4718/4860/6166/3253/4428.
Please send all emails from your mylife email account. If you send an e-mail directly to a Unisa
e-mail address, insert your student number in the subject line to effect the correct routing to an
advisor for processing.
4.5 University
To contact the university, please dial 080 000 1870. Remember to keep your student number at
hand when contacting the university. The Unisa Student Communication Service Centre will be open
weekdays from 08:00 – 16:00 (South African Standard Time).
Please check the list carefully and send an enquiry to one e-mail address only. This will ensure
that there is no confusion as to who must respond, thereby preventing unnecessary delays in the
response or the email portrayed as spam. Students should only forward enquiries to the Registrar
and Deputy Registrar in instances where those enquiries could not be resolved at other levels.
TYPE OF QUERY EMAIL ADDRESS TELEPHONE NUMBER
ICT
myUnisa myUnisaHelp@unisa.ac.za 012 429 3111 (Option 2)
myLife myLifeHelp@unisa.ac.za 012 429 3111 (Option 2)
STUDENT ADMISSIONS AND REGISTRATIONS
General applications and registration
study-info@unisa.ac.za
queries
College of Law jus@unisa.ac.za
International students international@unisa.ac.za
Exemptions adhoccredits@unisa.ac.za
Access and matriculation exemption ame@unisa.ac.za
Re-admissions study-info@unisa.ac.za
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STUDENT ASSESSMENT ADMINISTRATION
General assignment enquiries assign@unisa.ac.za
General exam queries exams@unisa.ac.za 012 429 8641
Aegrotat exams aegrotats@unisa.ac.za 012 429 8641
Exam arrangements for students with examdisabled@unisa.ac.za
012 429 8641
disabilities
Exam admission examadmission@unisa.ac.za 012 429 8641
International students examinternational@unisa.ac.za + 27 12 429 2268
Remarks remark@unisa.ac.za 012 429 8641
Purchase of an exam script purchasescript@unisa.ac.za 012 429 8641
FINANCE
Student account enquiries finan@unisa.ac.za 012 429 2441/4299
STUDENT FUNDING
General student funding enquiries letsomp@unisa.ac.za 012 441 5600
STUDY MATERIAL
Despatch enquiries despatch@unisa.ac.za
Contact addresses of the various administrative departments appear on the Unisa website:
http://www.unisa.ac.za/sites/corporate/default/Contact-us/Student-enquiries.
Please include the student number in all correspondence.

RESOURCES
5
5.1 Prescribed book(s)
There is no prescribed textbook for BAN5901. This means that you do not have to buy any additional
books for BAN5901. You need only study the tutorial letters and the material prescribed for each
topic.
5.2 Recommended book(s)

There are no recommended books for BAN5901.
5.3 Electronic reserves (e-reserves)

The reading list can be found in Addendum A below. It is COMPULSORY that you study the cases
and other prescribed material listed in Addendum A below. The list of prescribed materials supplied
below, therefore, contains material that you must read and summarise yourself. For the purposes of
assignments and examinations, a thorough knowledge of these cases and other material is
essential! Decisions by our courts are an important source of the law. You can view the tutorial letters
for the courses for which they are registered on the myUnisa facility and the prescribed material
under E-reserves on the Library’s website.
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To access the library’s website the following steps should be followed:

(1) Go to http://www.unisa.ac.za/default.html and click on Library.
(2) Click on Find e-reserves and recommended books.
(3) Enter the module code: BAN5901 and select: `BAN5901 Electronic Reserves 2023’
E-reserves can be downloaded from the library catalogue. More information is available at:
http://libguides.unisa.ac.za/request/request
5.4 Library services and resources information
The Unisa library offers a range of information services and resources:
• For brief information, go to https://www.unisa.ac.za/library/libatglance

• For more detailed library information, go to
http://www.unisa.ac.za/sites/corporate/default/Library
• For research support and services (e.g. the services offered by personal librarians and the
request a literature search service offered by the information search librarians), go to
http://www.unisa.ac.za/sites/corporate/default/Library/Library-services/Research-support
• For library training for undergraduate students, go to
https://www.unisa.ac.za/sites/corporate/default/Library/Library-services/Training
The library has created numerous library guides, available at http://libguides.unisa.ac.za
Recommended guides:
• Request and find library material/download recommended material:

http://libguides.unisa.ac.za/request/request
• Postgraduate information services: http://libguides.unisa.ac.za/request/postgrad
• Finding and using library resources and tools:
http://libguides.unisa.ac.za/Research_skills
• Frequently asked questions about the library:
http://libguides.unisa.ac.za/ask
• Services to students living with disabilities:
http://libguides.unisa.ac.za/disability
• A–Z of library databases:
https://libguides.unisa.ac.za/az.php
Important contact information:

• Ask a librarian: https://libguides.unisa.ac.za/ask
• Technical problems encountered in accessing library online services: Lib-help@unisa.ac.za
• General library-related queries: Library-enquiries@unisa.ac.za
• Queries related to library fines and payments: Library-fines@unisa.ac.za
• Social media channels: Facebook: UnisaLibrary and Twitter: @UnisaLibrary
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6 STUDENT SUPPORT SERVICES
The Study @ Unisa brochure is available on myUnisa: www.unisa.ac.za/brochures/studies
This brochure contains important information and guidelines for successful studies through Unisa.
If you need assistance with regard to the myModules system, you are welcome to use the following
contact details:
• Toll-free landline: 0800 00 1870 (Select option 07 for myModules)

• E-mail: mymodules22@unisa.ac.za or myUnisaHelp@unisa.ac.za
You can access and view short videos on topics such as how to view your calendar, how to access
module content, how to view announcements for modules, how to submit assessment and how to
participate in forum activities via the following link: https://dtls-
qa.unisa.ac.za/course/view.php?id=32130
Registered Unisa students get a free myLife e-mail account. Important information, notices and
updates are sent exclusively to this account. Please note that it can take up to 24 hours for your
account to be activated after you have claimed it. Please do this immediately after registering
at Unisa, by following this link: myLifeHelp@unisa.ac.za
Your myLife account is the only e-mail account recognised by Unisa for official correspondence
with the university, and will remain the official primary e-mail address on record at Unisa. You
remain responsible for the management of this e-mail account.
mailto:
6.1 The Unisa First-Year Experience Programme
Many students find the transition from school education to tertiary education stressful. This is also
true in the case of students enrolling at Unisa for the first time. Unisa is a dedicated open distance
and e-learning institution, and it is very different from face-to-face/contact institutions. It is a mega
university, and all our programmes are offered through either blended learning or fully online
learning. It is for this reason that we thought it necessary to offer first-time students
additional/extended support to help them seamlessly navigate the Unisa teaching and learning
journey with little difficulty and few barriers. We therefore offer a specialised student support
programme to students enrolling at Unisa for the first time – this is Unisa’s First-Year Experience
(FYE) Programme, designed to provide you with prompt and helpful information about services that
the institution offers and how you can access information.
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The following FYE services are currently offered:
• FYE website: All the guides and resources you need in order to navigate through your first
year at Unisa can be accessed using the following link: www.unisa.ac.za/FYE
• FYE e-mails: You will receive regular e-mails to help you stay focused and motivated.
• FYE broadcasts: You will receive e-mails with links to broadcasts on various topics related to
your first-year studies (e.g. videos on how to submit assessments online).
• FYE mailbox: For assistance with queries related to your first year of study, send an e-mail
to fye@unisa.ac.za .
6.2 Companies falsely advertising Unisa services

Some companies and social media pages have been falsely advertising Unisa online information
and various services to assist Unisa students. In the process, companies either solicit money
fraudulently from students or make money through online advertising with no benefit to students.
These companies are in no way associated or related to Unisa.
We request that students only use official Unisa sites and platforms as any other platforms will
provide you with incorrect information and/or act illegally which will be harmful to your studies.
Unisa will always use official communication channels (eg Unisa website, myUnisa, Unisa social
media platforms, myLife e-mail) to communicate with students.
Please use the following Unisa platforms for official Unisa information:
• www.unisa.ac.za
• https://my.unisa.ac.za
• https://www.facebook.com/UniversityOfSouthAfrica
• https://twitter.com/unisa
• https://www.linkedin.com/company/unisa
7 STUDY PLAN
It is difficult to suggest a study plan that would suit all students who are registered for this module.
However, it is necessary to work out a study plan for yourself and to keep to it stringently.
It is very important that you log in to myUnisa regularly. We recommend that you log in at least twice
a week to do the following:
• Check for new announcements. You can also set your myLife email account so that you
receive the announcement emails on your cell phone.
• View and take part in the Discussion Forum (if applicable).
• Online lectures (if applicable). You will receive communication during the study period
concerning the date, time and electronic platform where the lectures will take place.
13
We hope that giving you additional ways to study the material will assist you with your studies.
8 PRACTICAL WORK
There is no practical work for this module.
9 ASSESSMENT
9.1 Assessment criteria
Outcome 1 stated above: assessment criteria
• Complex, multifaceted issues relating to the law relating to banking and banking supervision,
banks and their customers, banks, financing, financial inclusion, financial technology, and
money-laundering control measures are identified in real or simulated fact scenarios.
• Daily occurrences of the law relating to banking supervision, banks and their customers, banks,
financing, financial inclusion, financial technology, and money-laundering control measures are
analysed, interpreted and critiqued at an advanced level within a legal framework.
• Theory is applied to practice (and vice versa) in the context of banking supervision, banks and
their customers, banks, financing, financial inclusion, financial technology, and money-
laundering control measures by means of relevant case law and literature studies.
• Advanced information retrieval and processing skills are applied.
• Students play a leading role in developing banking law within a national and global context to
cope with contemporary challenges and problems.
• Complex problems relating to the law relating to banking supervision, banks and their
customers, banks, financing, financial inclusion, financial technology, and money-laundering
control measures are interpreted, rigorously analysed, and explained within different contexts.
• Impartial and balanced perspectives are provided on complex, multidimensional problems
relating to the law relating to banking supervision, banks and their customers, banks, financing,
financial inclusion, financial technology, and money-laundering control measures.
• Scholarly and judicial debates are considered and critically evaluated in terms of students’
acquired knowledge base and advanced lawyering skills.
• Relevant sources and authorities are found to solve advanced problems relating to banking
supervision, banks and their customers, banks, financing, financial inclusion, financial
technology, and money-laundering control measures.
• The relevance and applicability of various legal sources and authorities to complex problems
relating to banking supervision, banks and their customers, banks, financing, financial
inclusion, financial technology, and money-laundering control measures are analysed and
critically evaluated.
• The most appropriate and authoritative legal materials are selected to solve problems relating
to banking supervision, banks and their customers, banks, financing, financial inclusion,
financial technology, and money-laundering control measures.
• Different solutions to a problem relating to the law specifically relating to banking supervision,
banks and their customers, banks, financing, financial inclusion, financial technology, and
money-laundering control measures are considered and rigorously critiqued, and the
consequences of each solution are contemplated for future legal development.
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• Substantiated responses are provided, based on students’ accumulated advanced knowledge

base and lawyering skills.
• Responsible and expert legal advice is provided on a suitable course of action.
• Technology, research, literature and authoritative sources of law are used independently to
produce a research report.
• The results of the research are communicated effectively by producing research reports which
meet the standards of scholarly and professional writing.
• Formative assessment of research reports is used to critically evaluate those reports and to
engage in critical self-evaluation.
• Students use advanced research and analytical skills to produce critical and well-founded legal
arguments relating to the legal aspects of the law relating to banking supervision, banks and
laundering control measures.
• Legal theory on and practice in the law relating to banking supervision, banks and their
customers, banks, financing, financial inclusion, financial technology, and money-laundering
control measures are reflected on and critically evaluated in national and global contexts.
• Areas in need of legal development or law reform in respect of banking supervision, banks and
laundering control measures are identified, described and addressed.
• Historical and/or comparative research methods are applied to develop answers to current
issues and complex problems relating to banking supervision, banks and their customers,
banks, financing, financial inclusion, financial technology, and money-laundering control
measures.
• The legal implications of South African circumstances relating to banking supervision, banks
and their customers, banks, financing, financial inclusion, financial technology, and money-
laundering control measures, are interpreted from national and international perspectives.
9.2 Assessment plan
• To complete this module, you will be required to submit two compulsory assignments and
to write an examination.
• All information about when and where to submit your assignments will be made available to
you via the myModules site for BAN5902.
• Due dates for assignments, as well as the actual assignments are available on the
myModules site for this module.
• To gain admission to the examination, you will be required to submit the first compulsory
assignment.
• The weighting of the assignments are as follows: The first assignment counts five per cent
towards the year mark. The second assignment is compulsory in the sense that it
contributes twenty per cent toward the year mark. In total the assignments count twenty-
five per cent towards the year mark.
15
• You will receive examination information via the myModules sites. Please watch out for
announcements on how examinations for the modules for which you are registered will be
conducted.
• The examination will count seventy-five per cent towards the final module mark.
Formative assessment: Learning and assessment are integrated. Formative assessment is a
continuous and personal process of interaction between the lecturer and the students. It includes
assignments based on the learning material and the advanced research skills the students must
demonstrate. Students are given feedback. The process is continuous and focuses on a limited
number of outcomes. There are two compulsory assignments. The first assignment counts five per
cent towards the year mark. The second assignment contributes twenty per cent towards the year
mark. In total, the assignments count twenty-five per cent towards the year mark.
Summative assessment: Students will write an examination in this module. Summative
assessment tests the student’s ability to manage and integrate a large body of knowledge to achieve
the stated outcomes of the module. It also assesses the advanced research skills that the student
has acquired. The summative assessment will contribute seventy-five per cent towards the year
mark.
Integrated assessment: All assessment integrates knowledge, skills, and attitudes and applied
competence. Students are required to use appropriate methods and skills to apply detailed
knowledge of banking law in the selected areas of the law in practical situations and to display
the skills required of legal practitioners specialising in Banking Law in a variety of contexts typical
of the demands set for postgraduate students.
You must log into the module site on myUnisa in order to access the following:
• the due dates for assignments;

• the actual assignments that must be completed;
• how to submit your assignments;
• the weighting of the different assessments;
• admission to the exam; and
• the examination.
9.3 Assessment due dates
• There are no assignment due dates included in this tutorial letter.
• Assignment due dates will be made available to you on the myUnisa landing page for this
module. We envisage that the due dates will be available to you upon registration.
• Please start working on your assessments as soon as you register for the module.
• Log on to the myUnisa site for this module to obtain more information on the due dates for
the submission of the assessments.
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9.4 Submission of assessments
• Unisa, as a comprehensive open distance e-learning institution (CODel), is moving towards

becoming an online institution. You will therefore see that all your study material,
assessments and engagements with your lecturer and fellow students have an online
element.
• The myUnisa virtual campus will offer students access to the myModules site, where learning
material will be available online and where assessments should be completed. This is an
online system that is used to administer, document, and deliver educational material to
students and support engagement between academics and students.
• The myUnisa platform can be accessed via https://my.unisa.ac.za. Click on the myModules
2023 button to access the online sites for the modules that you are registered for.
• The university undertakes to communicate clearly and as frequently as is necessary to ensure

that you obtain the greatest benefit from the use of the myModules learning management
system. Please access the announcements on your myModules site regularly, as this is
where your lecturer will post important information to be shared with you.
• When you access your myModules site for the module/s you are registered for, you will see
a welcome message posted by your lecturer. Below the welcome message you will see the
assessment shells for the assessments that you need to complete. Some assessments may
be multiple choice, some tests, others written assessments, some forum discussions, and so
on. All assessments must be completed on the assessment shells available on the respective
module platforms.
• To complete quiz assessments, please log on to the module site where you need to complete
the assessment. Click on the relevant assessment shell (Assessment 1, Assessment 2, etc.).
There will be a date on which the assessment will open for you. When the assessment is
open, access the quiz online and complete it within the time available to you. Quiz
assessment questions are not included in this tutorial letter (Tutorial Letter 101) and are only
made available online. You must therefore access the quiz online and complete it online
where the quiz has been created.
• It is not advisable to use a cell phone to complete the quiz. Please use a desktop computer,
tablet or laptop when completing the quiz. Students who use a cell phone find it difficult to
navigate the Online Assessment tool on the small screen and often struggle to navigate
between questions and successfully complete the quizzes. In addition, cell phones are more
vulnerable to dropped internet connections than other devices. If at all possible, please do
not use a cell phone for this assessment type.
17
• For written assessments, please note the due date by which the assessment must be
submitted. Ensure that you follow the guidelines given by your lecturer to complete the
assessment. Click on the submission button on the relevant assessment shell on myModules.
You will then be able to upload your written assessment on the myModules site of the modules
that you are registered for. Before you finalise the upload, double check that you have
selected the correct file for upload. Remember, no marks can be allocated for incorrectly
submitted assessments.
9.5 The assessments
As indicated in section 9.2 above, you need to complete two assessments for this module.
There are no assignments included in this tutorial letter.
Assignments and due dates will be made available to you on myModules for this module. We
envisage that the due dates will be available to you upon registration.
9.6 Other assessment methods
There are no other assessment methods for this module.
9.7 The examination
Examination information and details on the format of the examination will be made available to you
online via the myUnisa site. Look out for information that will be shared with you by your lecturer and
e-tutors (where relevant) and for communication from the university.
Examination information and details on the format of the examination will be made available to
you online via the myUnisa site. Look out for information that will be shared with you by your
lecturer and e-tutors (where relevant) and for communication from the university.
You must submit the first compulsory assignment to gain admission to the examination. The
first assignment counts five per cent towards your year mark. The second assignment is
compulsory in the sense that it contributes twenty per cent towards your year mark. The mark you
obtain in the examination counts seventy-five per cent towards your year mark. You must obtain a
sub-minimum of forty per cent in the exam paper and a final mark of fifty to pass this module.
This course is a year course. This means that you are likely to write the examination in
January/February 2024. However, the final examination information, dates and details on the
format of the examination will be made available to you online via the myUnisa site. Look out for
information that will be shared with you by your lecturer and for communication from the University.
The exam paper will comprise of a number of questions, covering all your topics, and will be an
open-book examination. The pass mark for the module is fifty per cent.
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9.7.1 Invigilating/Proctoring
Since 2020 Unisa conducts all its assessments online. Given stringent requirements from
professional bodies and increased solicitations of Unisa’s students by third parties to unlawfully
assist them with the completion of assignments and examinations, the University is obliged to assure
its assessment integrity through the utilisation of various proctoring tools: Turnitin, Moodle
Proctoring, the Invigilator App and IRIS. These tools will authenticate the student’s identity and flag
suspicious behaviour to assure credibility of students’ responses during assessments. The
description below is for your benefit as you may encounter any or all of these in your registered
modules:
Turnitin is a plagiarism software that facilitates checks for originality in students’ submissions
against internal and external sources. Turnitin assists in identifying academic fraud and ghost
writing. Students are expected to submit typed responses for utilisation of the Turnitin software.
The Moodle Proctoring tool is a facial recognition software that authenticates students’ identity
during their Quiz assessments. This tool requires access to a student’s mobile or laptop camera.
Students must ensure their camera is activated in their browser settings prior to their assessments.
The Invigilator “mobile application-based service does verification” of the identity of an

assessment participant. The Invigilator Mobile Application detects student dishonesty-by-proxy and
ensures that the assessment participant is the registered student. This invigilation tool requires
students to download the app from their Play Store (Google, Huawei and Apple) on their mobile
devices (camera enabled) prior to their assessment.
IRIS Invigilation software verifies the identity of a student during assessment and provides for both
manual and automated facial verification. It has the ability to record and review a student’s
assessment session. It flags suspicious behaviour by the students for review by an academic
administrator. IRIS software requires installation on students’ laptop devices that are enabled with
a webcam.
Students who are identified and flagged for suspicious dishonest behaviour arising from the
invigilation and proctoring reports are referred to the disciplinary office for formal proceeding.
Please note:
Students must refer to their module assessment information on their myModule sites to determine
which proctoring or invigilation tool will be utilised for their formative and summative assessments.
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10 ACADEMIC DISHONESTY
10.1 Plagiarism
Plagiarism is the act of taking the words, ideas and thoughts of others and presenting them as your
own. It is a form of theft. Plagiarism includes the following forms of academic dishonesty:
• Copying and pasting from any source without acknowledging the source.
• Not including references or deliberately inserting incorrect bibliographic information.
• Paraphrasing without acknowledging the original source of the information.
10.2 Cheating
Cheating includes, but is not limited to, the following:
• Completing assessments on behalf of another student, copying the work of another student
during an assessment, or allowing another student to copy your work.
• Using social media (e.g. WhatsApp, Telegram) or other platforms to disseminate assessment
information.
• Submitting corrupt or irrelevant files, this forms part of examination guidelines
• Buying completed answers from so-called “tutors” or internet sites (contract cheating).
For more information about plagiarism, follow the link below:
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-rules
10.3 Academic and Administrative matters
10.3.1 Academic Matters

All module content-related enquiries must first be addressed to the relevant module lecturers. As
already indicated above, all such enquiries must be made from your mylife@unisa.ac.za email
account. Where your module lecturer(s) is unable to assist, such enquiries can be escalated to the
Chair of the Department in which your module is located. The Chair of the Department is the one
with the power to resolve issues, is authorised to make such interventions, and has the final say in
matters relating to the administration of a module. Such escalation must be done via the
departmental administrative staff.
Contact information for all the departmental administrative matters for this module is captured below.
Name Contact number Email address
Administrative staff – Ms S 012 429 8579 merclaw@unisa.ac.za

Mothibedi
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10.3.2 Administrative Matters

The contact information for all administrative departments is included on pages 8 - 9 of this Tutorial
Letter. Please address any administrative issues (for example, registration issues, finance-related
issues, graduation issues, auditing of a qualification, etc) with the relevant support department and
not the college.
11 STUDENTS LIVING WITH DISABILITIES

The Advocacy and Resource Centre for Students with Disabilities (ARCSWiD) provides an
opportunity for staff to interact with first-time and returning students with disabilities.
If you are a student with a disability and would like additional support or need additional time for
assessments, you are invited to contact the university by sending an email to
examdisabled@unisa.ac.za, so that you can be assisted. In your email include the name of the
module(s) that you are currently registered for.
For content-related queries, please send an email to any of your lecturers:
Lecturer’s name: Prof WG Schulze
E-mail address: schulwg@unisa.ac.za
Lecturer’s name: Adv MD Tuba

E-mail address: tubamd@unisa.ac.za
Lecturer’s name: Adv H de Ru

E-mail address: deruh@unisa.ac.za
12 FREQUENTLY ASKED QUESTIONS

See Study @ Unisa brochure which contains an A-Z guide of the most relevant study information.
13 RESEARCH METHODOLOGY AND SHORT DISSERTATION

The following procedure applies if you have registered for the module Research Methodology for
Law (MPLLW91) and wish to register for a short dissertation in Banking Law.
Please start the process described below as soon as you receive confirmation of your
registration for the module Research Methodology for Law. Please note that we do not provide
students with a list of possible topics. You have to select a topic yourself, and you must provide
sufficient detail to enable us to evaluate the viability of the topic.
21
You are required to submit a preliminary research proposal of four or more pages together with a
bibliography and proof of registration to the Masters and Doctoral Coordinator for the Banking Law
Group who will assist to allocate a suitable supervisor based on the topic and the area of banking
law that you have chosen. Please submit your preliminary research proposal in May of the year of
your registration for the research module:
Upon receipt of the preliminary proposal, it will be considered by the Banking Law group. If the
preliminary research proposal is not suitable, you may be provided with suggestions to amend it and
given an opportunity to re-submit. Please note that you will only be permitted to submit a
maximum of three draft preliminary research proposals on a particular topic. If sufficient
progress has not been made by the third draft, it will be rejected. If the preliminary research proposal
is found to be acceptable by the supervisor, you will then continue with your final research proposal.
If the supervisor is satisfied with the proposal, he or she will assist you with the process of approval
and recommend you to register for the dissertation.
The preliminary research proposal must contain sufficient detail to enable us to evaluate the viability
of the topic. You are required to clearly:
• identify the proposed topic;
• list the aspects which will be researched in the dissertation;
• motivate why these aspects require further academic consideration (e.g. proof that the law is not
yet settled on these aspects); and
• a bibliography.
Your bibliography should reflect that you have at least consulted the most important sources relevant
to your topic. Please also consult tutorial letter MPLLW91/101/0/2023 for guidance and referencing
styles.
14 SOURCES CONSULTED
Please refer to Addendum A.
15 IN CLOSING
We wish you every success with your postgraduate study of Banking Law. We trust that you will find
the course enjoyable and fruitful. Please remember, we are there to help you in any way we can. Do
not hesitate to contact us.
Best wishes
The Lecturers
UNISA
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16 ADDENDUM A – LIST OF PRESCRIBED MATERIALS
ELECTRONIC RESERVES LIST
BAN5901 - 2023
The module in Banking Law I (BAN5901) concerns four main topics: Banking and banking
supervision; Banks and their customers; Banks, financing, financial inclusion, and financial
technology; and Money-laundering control measures.
It needs to be emphasised that both the range of topics and number of items listed under each topic,
merely scratch the surface of what is regarded as relevant in the broader field of banking law. The
allotted time and maximum number of prescribed items allowed per individual LLM module, do not
allow us to venture beyond what is listed below.
Topic 1: Banking and banking supervision
General
The South African Reserve Bank (SARB) has since the early part of the twentieth century served as
South Africa’s central bank. The SARB perform a number of functions and activities, some of which
are discussed in the materials below.
One of the SARB’s functions deserves special mention, namely that of bank supervision. The bulk
of the prescribed items below deals with the activity of banking supervision.
But first, we provide you with a list of materials on the SARB and the functions and activities it
performs.
Central banking – the Reserve Bank

De Jager J “The South African Reserve Bank: An Evaluation of the Origin, Evolution and
Status of a Central Bank: (Part I)” 2006 (18) SA Merc LJ 159 (9 pages)
De Jager J “The South African Reserve Bank: An Evaluation of the Origin, Evolution and
Status of a Central Bank: (Part II)” 2006 (18) SA Merc LJ 274 (9 pages)
The South African Reserve Bank Act 90 of 1989 (28 pages)
Sections 223, 224 & 225 of the Constitution of the Republic of South Africa 108 of 1996 (1
page)
Malan FR & Pretorius JT “The Reserve Bank, Banks and Clearing Houses in South African
Law: (Part 1)” 2001 (13) SA Merc LJ 35–51 (18 pages)
Malan FR & Pretorius JT “The Reserve Bank, Banks and Clearing Houses in South African
Law: (Part 2)” 2001 (13) SA Merc LJ 163–187 (12 pages)
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De Jager J “The South African Reserve Bank: Blowing Winds of Change” Part I)” 2013 (25)
SA Merc LJ 342-361 (19 pages)
De Jager J “The South African Reserve Bank: Blowing Winds of Change” (Part II) 2013 (25)
Van Niekerk G & Van Heerden C “Twin Peaks: The Role of the South African Central Bank
in Promoting Financial Stability” 2017 (80) THRHR 636-656 (20 pages)
Banking and banking supervision

The items listed immediately below introduce students to South African legislation that regulates the
banking industry and the activities that banks perform. The emphasis is on the activity of “banking
supervision”.
The Banks Act 20 of 2007 (31 pages) and the Banks Amendment Act 19 of 2003 (32 pages)
Banks Act Regulations Relating to Banks Government Notice 1 in Government Gazette 30629
(Regulation Gazette 8815) of 1 January 2008 (9 pages)
Financial Institutions (Protection of Funds) Act 28 of 2001 (9 pages)
Financial Services Board Act 97 of 1990 (especially the definition of “financial institution” as
contained in s 1) (2 pages)
Chapter I – Basis of Regulation (4 pages); and Chapter III – Corporate Governance (18
pages)
Banks Act – Regulations: Conditions for conducting the business of a bank by a foreign
institution by means of branches (amendment) Government Gazette 30627, Regulation
Gazette 8814 (Notice 1), 1 January 2008 (10 pages)
Itzikowitz A “The Deposit-taking Institutions Act 94 of 1990. Its History and an Overview of its
Main Provisions” 1992 (4) SA Merc LJ 170 (14 pages)
Malan FR “The Business of a Deposit-taking Institution” 1991 TSAR 561 (9 pages)
Definition of a business of a bank:

In Mwale v The Financial Services Tribunal & another Case no 92967/2020 of 24 May 2021 (GN)
the Pretoria High Court held that the Banks Act does not require the acceptance or obtaining of
money to be a regular feature of the business to constitute a contravention of the prohibition against
operating the “business of a bank” by persons and entities not registered as a bank. All that is
required is that the “activity” must be a regular feature of a business practice.
Van Jaarsveld IL “Domestic and International Banking Supervision and Regulation – Defying
the Challenges: (Part I)” 2002 (119) SALJ 71–100 (15 pages)
Swart L & Lawack-Davids VA “Understanding the South Africa Financial Markets: An

Overview of the Regulators” 2010 (31) Obiter 619–637 (18 pages)
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De Jager JJ “Three Rivers District Council v Governor & Company of the Bank of England: A Red
Flag or a Red Herring for Bank Supervisors in South Africa?” 2001 (13) SA Merc LJ 531–552
(11 pages)
De Jager JJ “Recognition of the Interest of Bank Depositors: The Corporate Governance

Dilemma: (Part 1)” 2002 TSAR 205–218 (8 pages)
Registrar of Banks v New Republic Bank Ltd [1999] 2 All SA 459 (D) (7 pages)
For a case note on the New Republic Bank case, see Schulze WG “The Institution of Curatorship of
a Bank in Terms of Section 69 of the Banks Act 94 of 1990 – A Rare Decision” 1999 (11) SA Merc
LJ 428 (5 pages)
Kawadza H “Rethinking the Definition of the ‘Business of Banking’ in South Africa Against the
Backdrop of Registrar of Banks v Net Income Solutions [2013] ZAWCHC 92” 2015 (1) Journal
of Corporate and Commercial Law & Practice 105-115 (11 pages)
Financial Sector Regulation Act 9 of 2017 (only the provisions of this Act discussed in the
material below need to be studied – the full Act has, however, been included in the e-reserves
so that you can access the latest version of the Act)
Godwin A, Howse T & Ramsay I “Twin Peaks: South Africa’s Financial Sector Regulatory
Framework” 2017 (134) South African Law Journal 665-702 (38 pages)
Godwin AJ & Schmulow A “The Financial Sector Regulation Bill in South Africa, Second Draft:
Lessons from Australia” 2015 (132) South African Law Journal 756-768 (13 pages)
Recently the South African financial sector has been overhauled extensively. A number of pieces of
primary legislation that are of considerable importance to financial institutions, were promulgated
and/or came into operation during 2016-2017. We will focus on one of these here: the Financial
Sector Regulation Act 9 of 2017 (the FSR Act). The prescribed item immediately below, deals with
selected aspects of the FSR Act. The FSR Act introduced the so-called Twin Peaks model of
regulation. These two “peaks” are the prudential peak, on the one hand, and a market conduct peak,
on the other hand.
WG Schulze “Financial Institutions” 2017 Annual Survey of South African Law (to be made
available under additional sources on myUnisa).
Van Niekerk G & Van Heerden C “The Importance of a Legislative Framework for Co-
operation and Collaboration in the Twin Peaks Model of Financial Regulation” 2020 (137)
South African Law Journal 108-144 (18 pages)
25
Alternative types of banking
Apart from “formal” or Western-style models of banking, you are also referred to two other systems
or concepts of banking. Although none of these two concepts is currently regulated by legislation,
they do form part of the broader South African banking law.
(a) Islamic banking
Islamic banking does not constitute a comprehensive and all-encompassing body in the conventional
or Western sense of the word. Islamic banking rather refers to a banking activity that is consistent
with the principles of sharia (Islamic law) and is a practical application through the development of
Islamic economics. Islamic banking is also often referred to as “sharia compliant finance”.
In terms of the concept of “sharia” the acceptance of specific interest or fees for loans of money is
prohibited. Instead, the lender of the money is “rewarded” or “compensated” for the use of the money
by structuring the transaction to be “sharia compliant”.
On Islamic banking in general, see:
Moorcroft J assisted by LR Raath Banking Law and Practice (2009) par 15.19 (loose-leaf)
Tuba M “Lodhi 5 Properties Investment CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA)
and the Enforcement of Islamic Banking in South Africa in South Africa” 2017 (20) PER/PELJ
1-22 (22 pages)
Qasaymeh K “Islamic Banking in South Africa: Between Accumulation of Wealth and the
Promotion of Social Prosperity” 2011 (44) Comparative and International Law Journal of
Southern Africa 275-292 (18 pages)
The prohibition on interest under Islamic banking was acknowledged and explained in the following
two cases:
Albaraka Bank Ltd v Halaal Royal Snacks (Pty) Ltd Unreported Case no: 08499/2010 of 8
February 2012 (GSJ) (10 pages)
Lodhi 5 Properties Investments CC and others v FirstRand Bank Ltd Case no: 170/2014 of
22 May 2015 (SCA) (15 pages)
(b) Indigenous banking: Stokvels
Certain financial and social concepts from the South African indigenous law overlap with financial
and legal concepts of the “formal” South African law, including banking law. By way of a broad
generalisation, these concepts are known as “stokvels”. For an introduction of the origin, nature and
different types of stokvels, as well as the possible overlap between certain types of stokvels, on the
one hand, and formal concepts of insurance and banking, on the other hand, you are referred to the
following two sources:
Schulze WG “The Origin and Legal Nature of the Stokvel: (Part I)” 1997 (9) SA Merc LJ 18-
29 (12 pages)
Schulze WG “The Origin and Legal Nature of the Stokvel: (Part II)” 1997 (9) SA Merc LJ 153-
170 (23 pages)
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Topic 2: Banks and their customers
The relationship between banks and their clients is one of contract. It has been described as a
contract sui generis (ie, one of a kind) because the bank-customer contracts is a multi-faceted one
which comprises various types of contract, including mandate, loan and deposit, to mention but three
types of contract that can form the basis of the bank-customer relationship.
The bank-customer relationship is governed by various legal sources, including legislation, the
common law, trade usages, principles derived from case law and “soft law”. The South African Code
of Banking practice is an important example of “soft law” in regulating the bank-customer
relationship.
The bank-customer relationship
Du Toit SF “Reflections on the South African Code of Banking Practice” 2014 TSAR 568-579
(12 pages)
Schulze WG “The Legal Nature and Validity of Bank Default Charges” 19(4) 2007 SA Merc
LJ 427–443 (9 pages)
Peterson NO and Another v Absa Bank Ltd 2011 (5) SA 484 (GNP) (11 pages)
The Bredenkamp trilogy of cases dealt with the controversial question whether a bank may
unilaterally terminate the relation between it and its customer.
Bredenkamp and Others v Standard Bank of South Africa Ltd 2009 (5) SA 304 (GSJ) (4
pages)
Bredenkamp and Others v Standard Bank of South Africa Ltd 2009 (6) SA 277 (GSJ) (31
pages)
Bredenkamp and Others v Standard Bank 2010 (4) SA 468 (SCA) (22 pages)
The principle that the relationship between banks and their clients is based on contract, was recently
confirmed in Minister of Finance v Oakbay Investments [2017] 4 All SA 150 (GP). In Oakbay
Investments the Gauteng North High Court confirmed the constitutional principle that State organs
or officials, in this case the Minister of Finance, are only empowered to act to the extent that their
powers are defined and conferred by the Constitution and/or by statute. There is no statute that
empowers the Minister to intervene in a private bank-client dispute.
Minister of Finance v Oakbay Investments [2017] 4 All SA 150 (GP) (23 pages)
The Oakbay Investments case is one of a number of South African High Court decisions handed
down during 2017 and, which dealt with the issue of state capture and the alleged role of the Gupta
family in the state capture. Although the following three cases, in which these issues were relevant,
don’t need to be studied for purposes of this topic, we provide them here for your information only:
South African Reserve Bank v Public Protector 2017 (6) SA 198 (GP); Annex Distributions v Bank
of Baroda 2018 (1) SA 562 (GP) (‘the first Annex Distributions case’); Absa & others v Public
Protector & others (case no 48123/2017) [2018] ZAGPPHC 2 (16 February 2018).
27
The decision in Annex Distributions turned on the right of a bank to terminate the relationship
between it and its client. In the first Annex Distributions case (see above for the citation), the
applicant (Annex Distributions, which was one of the Gupta-group of companies) applied for an
interim interdict to prevent Bank of Baroda from terminating the relationship between it and the
applicants, pending the determination of an application in which they will seek final relief for either
the setting aside of the bank’s notices of termination, or for the court-imposed time periods for such
termination
However, before the application for final relief could be heard by the court, Bank of Baroda decided
to terminate its South African-footprint and close its two South African branches, and thus also the
accounts of all its South African clients, including that of Annex Distributions. In a subsequent
decision involving Annex Distributions and the Bank of Baroda (‘the second Annex Distributions
case) the Gauteng North High Court held that a bank cannot be forced to keep on trading against it
wishes as it has a constitutional right to trade, including the right not to trade. The decision is
important also in the context of the right of banks to terminate their relationship with a client. You
need to study the decision in the second Annex Distributions case:
Annex Distributions (Pty) Ltd & others v Bank of Baroda (case no 52590/2017) [2017]
ZAGPPHC 639 (9 October 2017) (36 pages)
Survé & 42 others v Nedbank & another Case no 698/2022 of 14 February 2022 (WCC). In this case
(in paras 59-63) the Western Cape High Court made a number of obiter comments on the right of a
bank to unilaterally terminate the bank-customer agreement, including possible limitations on such
a right. Consider whether these obiter comments are in conflict with the guidelines laid down in
earlier case law, especially by the Supreme Court of Appeal in the Bredenkamp case. You only need
to study paras 59-63.
Money deposited in a bank account

The general rule is that money which is deposited in a bank account becomes the property of the
bank. In return the account holder obtains the right to claim a similar amount of money from the bank
at a later stage. The following materials deal with the question whether someone other than the
account holder may have a right to the money deposited in a bank account:
Joint Stock Varvarinskoye v Absa Bank Ltd 2008 (4) SA 287 (SCA) (8 pages)
De Jager J “Much ado about nothing? Legal principles on money, banks and their clients after
Joint Stock Varvarinskoye v Absa Bank” 2010 (22) SA Merc LJ 127 (7 pages)
Absa Bank Ltd v Intensive Air (Pty) Ltd and Others 2011 (2) SA 275 (SCA) (12 pages)
The Standard Bank of South Africa Ltd v Echo Petroleum CC 2012 (5) SA 283 (SCA) (10
pages)
Absa Bank Ltd v Lombard Insurance Co Ltd 2012 (6) 569 (SCA) (7 pages)
Pretorius C “The Use of Stolen Funds to Discharge a Debt and Enrichment: Absa Bank Ltd v
Lombard Insurance” 2013 (25) SA Merc LJ 589-605 (17 pages)
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Peterson NO and Another v Absa Bank Ltd 2011 (5) SA 484 (GNP) (7 pages) (Please note
that this case is also prescribed for the purposes of the “bank-customer relationship” above).
Spar Group Limited v Firstrand Bank Limited and another 2017 (1) SA 449 (GP) (18 pages)
For a discussion of the decision of the North Gauteng High Court Spar Group Ltd v Firstrand Bank,
see:
Nagel CJ & Pretorius, JT “Ownership and Appropriation of Funds Deposited in a Bank

Account” 2017 (80) THRHR 308 (7 pages).
The decision of the Gauteng High Court was taken on appeal. For the SCA’s decision, see:
FirstRand Bank v The Spar Group 2021 (5) SA 511 (SCA) (9 pages)
South African Reserve Bank v Leathern No and Others 2021 (5) SA 543 (SCA) (7 pages)
Reversal of a credit entry

The general rule is that once money is deposited into an account, the account holder (or in certain
cases, a third party (see again the materials immediately above) obtains a right to the credit on the
count. A vexed question is whether a credit entry can be reversed or countermanded, and if so, the
absolute latest moment at which such reversal can take place. In this regard, study the following
materials:
First National Bank of Southern Africa Ltd v Acufin Industries (Pty) Ltd 1995 Commercial Law
Digest 157 (W) (6 pages)
Nissan South Africa (Pty) Ltd v Marnitz and Others (Stand 186 Aeroport (Pty) Ltd Intervening)
2005 (1) SA 441 (SCA) (6 pages)
Pestana v Nedbank Ltd 2007 JDR 353 (W) (6 pages)
Pestana v Nedbank Ltd 2008 (3) SA 466 (W) (19 pages)
Nedbank Ltd v Pestana 2009 (2) SA 189 (SCA) (13 pages)
Schulze WG “Electronic Fund Transfers and the Bank’s Right to Reverse a Credit Transfer –
One Small Step for Banking Law, One Huge Leap for Banks” 2007 (19) SA Merc LJ 379-387
(9 pages)
Schulze WG “Electronic Fund Transfers and the Bank’s Right to Reverse a Credit Transfer:
One Big Step (Backwards) for Banking Law, One Huge Leap (Forward) for Potential Fraud:
Pestana v Nedbank (Act One, Scene Two)” 2008 (20) SA Merc LJ 290-297 (8 pages)
Schulze WG “A final curtain call, but perhaps not the last word on the reversal of credit
Transfers – Nedbank Ltd v Pestana” 2009 (21) SA Merc LJ 369-404 (35 pages)
29
In a recent decision in the Western Cape High Court, the court confirmed that a provisional credit
entry can be reversed where there is an allegation of fraud against the recipient of the credit entry:
Ixocure (Pty) Ltd v FirstRand Bank Ltd (case no 19619/2014) [2017] ZAWCHC 139 (30
November 2017) (10 pages)
Although we don’t question the correctness of the decision in Ixocure v FirstRand Bank, we would
nevertheless like to draw your attention to the following matters and advise you to keep these in
mind when reading the case:
First, Ixocure’s transfer of the money constituted an alleged fraud. Fraud requires intent. Intent in
the present case requires prior knowledge by Ixocure that its name was removed as signatory. From
the available facts it is not clear whether Ixocure had the required knowledge.
Secondly, the facts in Ixocure are unique in that both account holders were clients of the same bank.
One must assume that in the case where the account holder of the (provisional) credit entry is a
client of another bank, the terms of the interbank agreement will allow for a similar reversal of a
provisional entry. But because the terms of the interbank agreement are confidential this remains a
mere assumption.
The duty of confidentiality and bank secrecy

The duty of a bank to treat its customers’ affairs confidential was explained in the leading case of
Tournier (see below). In the Tournier case the court also acknowledged certain exceptions to the
general rule that banks may not disclose the financial affairs of their customers.
Tournier v National Provincial and Union Bank of England 1924 1 KB 461 (14 pages)
Schulze WG “Big Sister is Watching You: Banking Confidentiality and Secrecy under Siege”
2001 (13) SA Merc LJ 601–614 (8 pages)
Alqudah F “Banks' Duty of Confidentiality in the Wake of Computerised Banking” 1995 (2)
JIBL 50 (6 pages)
Walton C “The Drugs Trafficking Offences Act 1986: The Thin End of the Wedge for Bank
Secrecy” 1988 (1) JIBL 5 (3 pages)
FirstRand Bank Ltd v Chaucer Publications (Pty) 2008 (2) SA 592 (C) (6 pages)
Schulze H “Confidentiality and Secrecy in the Bank-client Relationship” 2007 (15) Juta
Business Law 122–126 (5 pages)
First National Bank of South Africa Ltd v Budree 1996 (1) SA 971 (N) (8 pages)
Wolmarans v Absa Bank Ltd and Another 2005 (6) SA 551 (C) (7 pages)
30
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Finally, for a discussion of the role of banks in providing bank references, including the possibility
that this activity may impact on the duty of confidentiality, see:
Ramdhin A “The Law Relating to Bankers’ References in the South African Law” 2013 (3)
TSAR 522-529 (8 pages)
The bank as borrower: the taking of deposits
Deposit-taking
Transitional Local Council of Randfontein v Absa Bank Ltd [2000] 2 All SA 134 (W) (11 pages)
Schulze WG “Depositum, Deposit and Deposit-taking Institutions. Birds of A Feather? Not

Quite” 2001 (13) SA Merc LJ 78 (9 pages)
Fixed deposits
Rennie NO v The Master; Glaum NO v The Master 1980 (2) SA 600 (C) (10 pages)
Although the decision of the court in the ground-breaking case of Botha v Fick was handed down in
Afrikaans, we do provide you with two case notes in which the facts and decision in Botha v Fick are
discussed and explained in English.
Botha v Fick 1995 (2) SA 750 (A) (16 pages)
Kritzinger M “Share Transfer by Mere Consensus?” 1995 112 SALJ 389 (7 pages)
Scott S “Delivery of Document as Validity Requirement for Cession” 1995 TSAR 760 (6
pages)
31
Collective investment schemes
Fedbond Mortgage Bond Managers (Pty) Ltd v Investec Employee Benefits Ltd and others
[2010] 4 All SA 467 (SCA) (23 pages)
Topic 3: Banking, financing, financial Inclusion and financial technology
Financial inclusion and policy and regulatory frameworks to prevent financial exclusion have been
on the international agenda for a number of years, due to lack of access to basic financial services
that include bank accounts and consumer credits, and for its important to alleviate poverty and for
economic growth. Banks are among other financial institutions that are required to promote financial
inclusion by providing access to financial services and products that are suitable for the low- and
middle-income communities. In topic 3 we introduce you to financial inclusion as an obligation that
banks must promote and the relevant regulatory framework to promote access to basic financial
services.
Financial inclusion and exclusion

Financial exclusion in South Africa
Chitimira H “Historical Aspects of the Statutory Regulation of Financial Inclusion for the Poor
and Low-Income Earners in South Africa” 2020 (16) Acta Universitatis Danubius 269-284 (15
pages)
Matsebula V & Yu D “An Analysis of Financial Inclusion in South Africa” 2020 (12) African
Review of Economics and Finance 171-202 (31 pages)
Regulatory frameworks to promote financial inclusion is South Africa
The regulatory framework to promote financial inclusion in South Africa is still fragmented and
comprises of policies and limited reference to this concept in newly introduced pieces of legislation.
Financial inclusion is referred to as the object of this Act, and as one of the functions of the Prudential
Authority and the Financial Sector Conduct Authority in terms of the Financial Sector Regulation Act
(9 of 2017). Financial inclusion is also one of the objectives that are introduced in the Conduct of
Financial Institutions Bill. When it is enacted into law, the Prudential Authority will consider how an
institution promotes financial inclusion and the transformation of the financial sector and how it fails
to advance this objectives when there is an application for the licensing of a financial institution and
when it considers the revocation of such licence. The following items introduce the regulatory
framework and challenges in South African law.
Louis L & Chartier F “Financial Inclusion in South Africa: An Integrated Framework for
Financial Inclusion of Vulnerable Communities in South Africa's Regulatory System Reform”
2017 (1) Journal of Comparative Urban Law and Policy 170-196 (26 pages).
Chitimira H & Ncube M “Legislative and Other Selected Challenges Affecting Financial
Inclusion for the Poor and Low-Income Earners in South Africa” 2020 (64) Journal of African
Law, 337-355 (18 pages).
32
BAN5902/101/0/2023
Basic savings account and financial inclusion in South Africa

Kostow P, Arun T, & Annim S “Access to Financial Services: The Case of the ‘Mzansi’
Account South Africa” 2015 (5) Review of Development Finance 34-42 (8 pages)
The National Credit Act and access to consumer credit.
The following items discusses how the NCA and its Affordability Assessment Regulations promote
access to consumer credits.
Wazvaremhaka T & Osode PC “The Implications of Truworths Limited v Minister of Trade
and Industry 2018 (3) SA 558 (WCC) for Access to Credit by Historically disadvantaged and
Low-income Consumers” 2019 (23) Law, Democracy & Development 1-17 (17 pages)
Truworths Limited v Minister of Trade and Industry 2018 (3) SA 558 (WCC) (13 pages)
Financial technology, and financial Inclusion
Financial technology (fintech) has grown in leaps and bounds and serves as a platform to provide
access to financial services. The following materials introduce the role of fintech to promote financial
inclusion. They discuss this topic in the contexts of other countries, but issues that they raise are
relevant to the South African context.
Arner DW, Buckley RP, Zetzsche DA, & Veidt R “Sustainability, FinTech and Financial
Inclusion” 2020 (21) European Business Organization Law Review 7-35 (29 pages)
Beck T “Fintech and Financial Inclusion: Opportunities and Pitfalls” (2020) Asian
Development Bank Institute Working Paper No. 1165 (25 pages)
Financial literacy and financial inclusion

Pearson G, Stoop PN, and Kelly-Louw M “Balancing Responsibilities – Financial Literacy”
2017 (20) PELJ 1-55 (55 pages).
Banks and financing

Banks perform a number of functions and services. Probably the two most important of these
functions and services are that of financing (ie, money-lending) and payment-intermediary services.
The latter function is dealt with in detail in the Banking Law II module (BAN5902). In topic 3 we
introduce you to a number of different ways in which banks perform the function of financing.
The first of these is financing by way of loans. Here we focus on the relevance and importance of
the National Credit Act 34 of 2005.
33
Financing by way of loans
The National Credit Act – moneylending transactions – finance charges
Background
National Credit Act 34 of 2005 as amended by the National Credit Amendment Act 19 of 2014
(on overview) (103 pages) (only the provisions of this Act discussed in the material below
need to be studied – the full Act has, however, been included in the e-reserves so that you
can access the latest version of the Act) (note should also be taken of the National Credit
Amendment Bill 30 of 2018).
Van Wyk JS “A Comparative Analysis of the ‘Regulatory Independence’ of the Financial

Sector Conduct Authority and the National Credit Regulator” 2019 (82) THRHR 392-415 (23
pages)
Field of application of the National Credit Act and the National Credit Amendment Act
Renke S, Roestoff M & Haupt F “The National Credit Act: New Parameters for the Granting
of Credit in South Africa” 2007 (28) Obiter 229-270 (21 pages)
Kelly-Louw M “National Credit Act 34 of 2005: An Overview of the Latest Developments” 2014
ABLU 88-148 (31 pages)
The in duplum rule

The in duplum rule is one of the prime examples of the continuing relevance of the common law for
modern South African banking law. It restricts the amount of interest that a money-lender can claim
from the borrower. The in duplum rule has now been entrenched and amplified in the National Credit
Act.
Schulze WG “Can a Borrower Waive the Benefits of the In Duplum rule?” 1999 (11) SA Merc
LJ 109 (5 pages)
Kelly-Louw M “The Statutory in duplum Rule as an Indirect Debt Relief Mechanism” 2011 (23)
Overdraft facilities on cheque accounts

McIntyre v The Robinson South African Banking Company 1903 (17) EDC 111 (4 pages)
Volkskas Bpk v Van Aswegen 1961 (1) SA 493 (A) (3 pages)
34
BAN5902/101/0/2023
Interest on overdraft facilities

Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A) (8 pages)
Premier Finance Corporation (Pty) Ltd v McKie 1979 (3) SA 1308 (T) (3 pages)
Bank certificates
Wollach v Barclays National Bank Ltd 1983 (2) SA 543 (A) (18 pages)
Donelly v Barclays National Bank Ltd 1990 (1) SA 375 (W) (6 pages)
Nedbank Ltd v Abstein Distributors (Pty) Ltd and Others 1989 (3) SA 750 (W) (3 pages)
Kerr AJ “Public Policy concerning Clauses in Contracts declaring certificates to be ‘Conclusive

Proof’ of their Contents” 1993 SALJ 668 (7 pages)
Tsaperas and Others v Boland Bank 1996 (1) SA 719 (A) (4 pages)
Letters of undertaking
AA Farm Sales (Pty) Ltd (t/a AA Farms) v Kirkaldy 1980 (1) SA 13 (A) (7 pages)
Röntgen v Reichenberg 1984 (2) SA 181 (W) (4 pages)
Friedman v Blumenthal 1981 (2) SA 398 (W) (3 pages)
Davis v Braatvedt 1989 (3) SA 327 (N) (4 pages)
Rosen v Ekon [2000] 3 All SA 24 (W) (10 pages)
Koumantarakis Group CC v Mystic River Investment 45 (Pty) Ltd and Another 2008 (5) SA
159 (SCA) (12 pages)
Guarantees
The role of the South African Reserve Bank in contractual disputes between parties regarding
guarantees:
Dölberg Asset Finance Ltd v Dölberg South Africa (Pty) Ltd Case no 25831/2020 of 20 September
2021 (GP). In this case the Pretoria High Court held that where a third party such as the South
African Reserve Bank had a discretion whether to grant approval for the cross-border flow of monies,
the creditor’s contention that the debtor was obliged to obtain approval at all costs, had no merit.
35
Topic 4: Money-laundering control measures
Jurisprudence of money-laundering
Williams P “Money Laundering” 1997 (5) South African Journal of International Affairs 71–96
(14 pages)
Munro N “Internet-based Financial Services: A New Laundry?” 2001 (9) Journal of Financial
Crime 134–152 (17 pages)
Albrecht C and Duffin KM “The Use of Cryptocurrencies in the Money Laundering Process”
2019 22 Journal of Money Laundering Control 210-216 (7 pages)
Statutory money-laundering control
Financial Intelligence Centre Act 38 of 2001 (as amended in 2017) (particularly section 1,
chapter 3 (including the new sections 20A - 21H on customer due diligence), chapter 4,
schedule 1 and 2)
Exemptions in terms of the Financial Intelligence Centre Act, 2001 (GN R1596 GG 24176 of
20 December 2002 amended by GN R1353 GG 27011 of 19 November 2004) (11 pages)
Van Jaarsveld IL “Mimicking Sysiphus? An Evaluation of the Know Your Customer Policy” 2006
(27) Obiter 228–244 (16 pages)
De Koker L “Client Identification and Money Laundering Control: Perspectives on the Financial
Intelligence Centre Act 38 of 2001” 2004 (4) Journal of South African Law 715–746 (16 pages)
De Koker L “Money Laundering in South Africa” (in Goredema C (ed) Profiling Money
Laundering in Eastern and Southern Africa ISS Monograph 90 (2003) 83–134) (51 pages)
De Koker L “The Money Laundering Risk Posed by Low-Risk Financial Products in South
Africa: Finding and Guidelines” 2009 12(4) Journal of Money Laundering Control 323-339
(16 pages)
Millard D & Vergano V “Hung out to dry? Attorney-client confidentiality and the reporting duties
imposed by the Financial Intelligence Centre Act 38 of 2001” 2013 (34) Obiter 389-427 (38
pages).
36

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BAN5901/101/0/2023

Tutorial Letter 101/0/2023

Department of Mercantile Law

This tutorial letter contains important information about your module.

10.3.2 Administrative Matters ................................................................................................................... 21

Unisa is a comprehensive ODeL higher education institution. The comprehensiveness of our

• Outcome 2: Application: This practical competency requires students to develop the

2.3 Criteria for the evaluation of learning

4 CONTACTING THE UNIVERSITY VIA EMAIL

• Where a student requires assistance in resolving myLife e-mail account access

Telephone number: +27 12 429 8460

4.4 College of Law Information Centre

Please include the student number in all correspondence.

5.2 Recommended book(s)

5.3 Electronic reserves (e-reserves)

To access the library’s website the following steps should be followed:

5.4 Library services and resources information

The Unisa library offers a range of information services and resources:

• For brief information, go to https://www.unisa.ac.za/library/libatglance

The library has created numerous library guides, available at http://libguides.unisa.ac.za

• Request and find library material/download recommended material:

Important contact information:

• Toll-free landline: 0800 00 1870 (Select option 07 for myModules)

6.1 The Unisa First-Year Experience Programme

The following FYE services are currently offered:

6.2 Companies falsely advertising Unisa services

Outcome 1 stated above: assessment criteria

Outcome 2 stated above: assessment criteria

Outcome 3 stated above: assessment criteria

• Substantiated responses are provided, based on students’ accumulated advanced knowledge

Outcome 4 stated above: assessment criteria

Outcome 5 stated above: assessment criteria

9.2 Assessment plan

• the due dates for assignments;

9.3 Assessment due dates

• There are no assignment due dates included in this tutorial letter.

9.4 Submission of assessments

• Unisa, as a comprehensive open distance e-learning institution (CODel), is moving towards

• The university undertakes to communicate clearly and as frequently as is necessary to ensure

9.5 The assessments

There are no assignments included in this tutorial letter.

9.6 Other assessment methods

There are no other assessment methods for this module.

9.7 The examination

The Invigilator “mobile application-based service does verification” of the identity of an

10.3 Academic and Administrative matters

10.3.1 Academic Matters

Name Contact number Email address

Administrative staff – Ms S 012 429 8579 merclaw@unisa.ac.za

10.3.2 Administrative Matters

11 STUDENTS LIVING WITH DISABILITIES

Lecturer’s name: Adv MD Tuba

Lecturer’s name: Adv H de Ru

12 FREQUENTLY ASKED QUESTIONS

13 RESEARCH METHODOLOGY AND SHORT DISSERTATION

• identify the proposed topic;

• list the aspects which will be researched in the dissertation;

16 ADDENDUM A – LIST OF PRESCRIBED MATERIALS

ELECTRONIC RESERVES LIST

Topic 1: Banking and banking supervision

Central banking – the Reserve Bank

The South African Reserve Bank Act 90 of 1989 (28 pages)