Browsing by Author "Leach, James"

Now showing 1 - 4 of 4
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    The correct understanding of the Business Judgment Rule in Section 76(4) of the Companies Act 71 of 2008: avoiding the American mistakes
    (2014) Leach, James; Idensohn, Kathy
    The South African law concerning directors' duties is intricate under both the common law and the Companies Act. This is an area of corporate law which allows for a wealth of practical and theoretical difficulty. I aim to deconstruct the intricacy of the American experience of the business judgment rule, with particular reference to the rule in Delaware, so as to present what I perceive to be the correct practical application of the rule in South African corporate law. This dissertation does not address the wisdom of the decision to transplant and codify the American business judgment rule within the Companies Act.
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    Examining the adequacy of South African off-exchange equity securities trading regulation
    (2017) Bisagaya, Andrew; Leach, James; De la Harpe, Richard
    The recent years have seen the recognition of Multilateral Trading Facilities and Alternative Trading avenues in the American and European stock markets. This was required as the markets had grown and regulators were left perpetually behind their needs. This paper looks at whether South Africa has any such facilities/avenues and whether they are adequately regulated. These facilities/avenues allow investors to trade in equity securities away from the exchange on which they are listed. With their increased use however, there are policy concerns that arise that revolve around; price discovery, investor protection, market fragmentation, fair competition and access. It is these concerns that regulators aim to address. The law in South Africa is clear that there are no other legally recognised avenues to trade listed equity securities other than on the exchange on which they are listed. The equities market in South Africa is also comparatively smaller compared to its international counterparts, therefore it is difficult to assess whether there are persons in the business of providing an infrastructure for trading listed securities away from the exchange. Furthermore, they would be doing so illegally thus making monitoring it harder. This paper analyses the laws in the United States and the United Kingdom and uses the work of various authors to examine the policy concerns that arise with the increased use of these trading avenues and how these concerns were addressed. Finally, the paper proposes that the South African regulators should make changes in line with the international counterparts as the market grows.
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    Regulating a pseudonym: Namibia's regulatory response to cross-border Cryptocurrency transactions
    (2020) Ernstzen, Cedrine Veanca; Ncube, Caroline; Leach, James
    In 2008 the world witnessed a transformational shift in its financial services with the introduction and subsequent adoption of cryptocurrencies. The self-regulatory nature of cryptocurrencies is an attractive feature for its users. Unfortunately, this feature is equally as attractive for criminal use. It is for this reason that in 2018 the Financial Action Task Force amended its regulatory Recommendations to extend the obligations of anti-money laundering and combating the financing of terrorism to cryptocurrency service providers and users. In turn, jurisdictions such as the European Union have amended their anti-money laundering laws to give the Recommendations effect. However, cryptocurrency transactions are presently unregulated in Namibia, despite the country also being a member state of the Financial Action Task Force. Namibia's concerns surrounding cryptocurrencies are in no way limited to their ability to corrupt the integrity of its financial industry, but also their ability to evade Namibia's capital and exchange controls. These controls preserve Namibia's foreign reserves which can theoretically be under threat by pseudonymous cross-border cryptocurrency transactions. Consequently, the imminent threat which these transactions pose, in their current form void of regulation, can arguably be quantified by their lack of transparency, accountability, and their jurisdictional concerns. Notably, cryptocurrencies have the ability to lower the entry level for financial inclusion and have the potential to propel Namibia's economic growth if cultivated correctly. Therefore, this dissertation examines whether the licensing of cryptocurrency service providers within Namibia can remedy the ills that plague cross-border cryptocurrency transactions, in order to safeguard the integrity of Namibia's financial industry and ensure the preservation of its foreign reserves without stifling innovation.
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    The Legal Classification of Cryptocurrency in South African Law: An Argument for Classification as Currency.
    (2019) Harvey, Nicola Ann; Hattingh, Johann; Leach, James
    Cryptocurrency - and indeed the underlying blockchain technology in general - have the potential to become a dominant method of effecting the transfer of value in a manner that fundamentally shifts the way in which electronic transactions take place. South Africa is a strong emerging market with the potential to attract substantial investment in new technologies should its regulatory response to such innovation remain principled. The primary purpose of this dissertation is to investigate the most appropriate classification of cryptocurrency in South African law. The research is qualitative in nature. It considers selected aspects of the existing legislative framework and scholarly opinion in determining whether cryptocurrency is best classified as property or as currency. The necessary corollary of this research focus is to consider the fundamental importance of such a classification for legal policy design generally, and the practical effects thereof. This dissertation hypothesises that the value of the blockchain technology lies in its commercial viability and its potential scalability, particularly in the African context. Thus, the required objective of regulatory intervention should be to preserve the commercial viability of cryptocurrency and avoid stifling technological advancement, whilst simultaneously ensuring the protection of vulnerable users. The conclusion is that cryptocurrency is best classified as foreign currency. This dissertation acknowledges that although it is possible to fit such a classification into existing legislative frameworks, a more specialised structure is ultimately required. Additionally, it raises concern about the harm caused by reactive regulatory intervention and instead recommends a principled policy approach, cognisant of the need for maturation of the technology.