The law relating to the supervision of banks : a comparison between the Federal Republic of Germany and the Republic of South Africa

[摘要] ENGLISH SUMMARY: Banks are one of the most important elements in the economic cycle of modem society. Asmoney replaced bartering banks have gradually moved into the pivotal point of the relationsbetween participants in the economic cycle. No project can be realized without money today.On the one hand, there are the investors who, irrespective of the amount, entrust their assets tothe banks. On the other hand, there are those whose financial needs require the granting ofsome form of credit. Banks operating in these contexts clearly bear important responsibilitiestowards the different parties. A third party, the state, is also interested in a well-functioningbanking establishment. Economic stability, without which there can be no political stability,cannot otherwise be ensured. The state is accordingly keenly interested in maintaining theoperability of this system. To this end, various laws are made in the respective countriesaimed at supervising the banking industry. This work deals with some of the legislationrelating to bank supervision in the Federal Republic of Germany and the Republic of SouthAfrica.In the various chapters certain aspects of bank supervision in the two countries are identified,juxtaposed and compared. The reasons for any differences are sought, discussed and wherepossible explained.From a historical point of view, the two countries developed differently. Nevertheless, theneed to regulate this sector through legislative means arose at an early stage in both.Unfortunately, the catalyst for legislative development was mostly some or other financialcrisis.Any measures for supervising banks must, to be binding, be constitutional. In this regardmuch must still be done in South Africa due to the fact that the New Constitution has onlybeen in force since 1996. Thus certain regulations stemming from the Banks Act 90 of 1994need to be reconsidered in the light of the constitution.Bank supervisory activity is performed by a national institution in both countries. Germanyavails itself of an independent authority. However, in South Africa it is one of the tasks of the central bank which has established a specific office for this purpose. Legal and natural personsalike are subject to such supervision. Diverse other government institutions provide supportfor such supervisory work in both countries.The scope of banking supervision, that is the persons and transactions affected, is broad andalso finely meshed. Both systems list a number of banking transactions that are subject to theirsupervision. This affects all domestic banks and all foreign banks that are domestically active.Access to the banking business is only permitted in both countries after an appropriate licensehas been granted. The license can be conditional. Moreover, both systems make provision forthe revocation of the license in appropriate circumstances. The conducting of bankingbusiness without the necessary permission is forbidden in both countries under the threat oflegal punishment.It is well recognized in modem society that legal subjects should be protected against thedecisions of those who wield state power. The possible remedies of those affected by thedecisions of the public authorities responsible for banking supervision in the differentcountries are investigated in conclusion.

[发布机构] Stellenbosch University