Browsing by Author "Adams, Yazeed"

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    A genealogy of the turn to ‘fairness' in the regulation of South Africa's financial sector
    (2026) Adams, Yazeed; Barnard-Naude, Alfred
    Governments and their financial sector regulators the world over have, since the onset of the new millennium, been facing growing consumer distrust in the mechanisms, policies and laws that govern financial products and services as well as profound doubt in terms of their effectiveness in dealing with wealth inequality, asymmetries of power and knowledge, and predatory business practice. In response, a new global trend and dispensation has been emerging since the 2008 global financial crisis. It involves changing the design of laws and regulatory bodies that oversee the financial sector, with the promise of placing the consumer first, embedding fair business practices and addressing power imbalances. Ultimately, the reforms aim to rebuild trust with society and maintain the stability of the financial sector and its markets with a view to substantially reduce the risk of future realisations of contagion and the possibility of a collapse of the interconnected financial system and sectors. In South Africa, the reform of laws regulating financial products and services is underway in an attempt to reimagine the contractual relationship between consumers and businesses as one that is foremost fair. Relaxing or tightening rules to improve public confidence and ensure fairness in the relationship between the financial sector, on the one hand, and consumers, on the other, has long been part of this trend. The reforms have also seen laws governing the financial sector move from rules to principle and outcome-based regulation. This thesis will critically examine the causes and effects of the shift from rules to alternative forms of regulation in South Africa's financial sector, with a focus on the laws governing financial services and the long-term insurance industry. This thesis will furthermore critically examine how the emergence of contemporary forms of regulation in the sector may not be based on novel concepts. Their aims of promoting fairness, as central to a new legal approach in the financial services and insurance sector in South Africa, presents, however, a unique opportunity to (re)introduce normative sociality into contracts concluded between individuals and the financial sector. The research undertaken in this dissertation will highlight the most prominent shifts in economic, legal and political discourse, as well as the sources of and impetus for the new trajectories in global and domestic policy and the regulation that has resulted. The research focuses on the regulatory reform of overarching laws in the sector, including the laws related to long-term insurance and financial services. I undertake a genealogical analysis, reaching back into the relevant periods in the historical archive, to contribute to the explanation of the occurrence of the contemporary juridical phenomena. The thesis also problematises the newly emergent juridical discourse, including its trajectory of new laws and regulatory design in relation to a fairer financial sector that is intended to serve South Africans. Excavating and understanding the historical conditions pertaining to the sector in South Africa (in contrast to dominions with similar regulatory reform) is, on the argument advanced here, key to acknowledging the country's uniqueness within the global discourse for a socially aware, fairer financial sector. I employ literary theory and criticism with a view to improve the understanding in relation to the contextual influences on the legal language and the literature that has been produced in the form of state-funded research and positioning papers, policies, outcomes-based laws and principle-based guidance and injunctions. The principal justification for this methodology lies in its capacity to function as the means to reckon and reason with the rhetoric attendant upon the shift in the relevant laws from a basis in rules to an alternative grounding that seeks specific outcomes from contractual relationships and commercial activity in the financial sector. An exegesis of the existing legal text in relation to its benefits and shortcomings is foundational to a critique of the rigid juridical framework that emerged, and which is set to be abolished as contemporary laws and their structures are implemented. Ultimately, the aim of the thesis is to expose an aperture in the laws of the South African financial sector, which aperture represents an ‘outside'1 in terms of the prevailing legal logic and the law of precedent. I suggest that this aperture gestures at a post-capitalist and more socially conscious, transformative juridical regime. The likelihood that the regulatory reform is merely the iteration of a reform in the economic and financial system that ultimately leaves the bottom line of the status quo intact, is an ever-present reality. As a result, scepticism in relation to such reforms, coupled with revivified consumer activism, is called for as the principle tenets of a critical legal orientation moved by the desire to approach that transformative regime of law.