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Banking and Finance Law - South Africa

About this Practice Area
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Banking and Finance Law Definition

Banking and finance law addresses the organisation, operation, and regulatory compliance of banks, bank-holding companies, and other financial institutions. This includes the negotiation, documentation, and completion of the transactions they engage in as part of their core business.

Examples of typical banking and finance transactions include secured or unsecured lending transactions (such as asset finance, acquisition finance, and general corporate lending transactions); the issuance of debt instruments on the capital markets (including short- and medium-term note and bond issuances and securitisation transactions); the issuance of fixed or variable rate preference shares; unlisted derivative transactions (such as swaps and repurchase transactions); and securities lending. 

In addition, banking and finance lawyers advise on the terms of financial products and services (such as bank deposits, electronic banking, payment products, cash sweeping services, custody services, and asset management services). In addition, banking and finance lawyers advise banks and other financial institutions on compliance with regulatory matters (such as requirements relating to capital structure and prudential investment limits, and the protection of customer personal information.

Lawyers who practise in this area in South Africa require specific knowledge or the laws:

  • regulating the financial sector (such as the Banks Act, the JSE Debt Listing Requirements, the Financial Markets Act, the Long-term Insurance Act, and the Pension Funds Act)
  • protecting consumers (such as the National Credit Act and the Consumer Protection Act)
  • regulating companies, insolvency, and business rescue
  • affecting the validity and enforcement of contractual and security rights
  • affecting cross-border transactions
  • imposing taxes
  • imposing exchange control requirements

Lawyers may act for lenders, investors in debt instruments or preference shares, borrowers, issuers of debt instruments and preference shares, arrangers, underwriters, security providers, trustees, business rescue practitioners, or liquidators.

Depending on a client's requirements, the documents used for transactions are based on the bank's standard-form documents, the template documents suggested by the Loan Market Association, the master documents of the International Swaps and Derivatives Association, and the International Securities Lending Association or the law firm's preferred documentation.

Given the increasing importance of the "shadow banking sector", the banking and finance departments of corporate law firms in South Africa also typically include specialists who provide legal services to asset managers, collective investments schemes and the investment consultants to pension funds, insurers, and family offices.

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