The horizon of the financial sector is one coloured by significant regulatory reform. Extensive reviews have been and are being conducted by the Prudential Authority (“PA“), the Financial Sector Conduct Authority (“FSCA“), the Financial Intelligence Centre (“FIC“) and the South African Reserve Bank (“SARB“) on various financial sector laws with a focus on encouraging innovation, competition, new market participants and fresh product offerings whist ensuring appropriate supervision in a market that requires customers to be informed by service providers and to be treated fairly. At the forefront of the slew of pending legislation are reforms to the Financial Markets Act No. 19 of 2012 (“FM Act“), the National Payment System Act 78 of 1998 (“NPS Act“) and banking legislation, with further reforms on the regulation of crypto assets and crypto asset service providers (“CASPs“) following closely behind. Remaining alert to the impending changes is essential in such a rapidly evolving regulatory landscape with far-reaching consequences.

FM Act

The financial sector has changed significantly since the FM Act was first promulgated with the entry of new market participants and innovative product offerings becoming more prolific over the past few years.[1] A review of the FM Act was therefore necessary to ensure that such developments were brought within the regulatory fold. The review of the FM Act was led by the Financial Markets Review Committee and involved input from the PA, FSCA and the SARB,[2] the outcome of which was published by National Treasury in the report “Building Competitive Financial Markets for Innovation and Growth” (“Report“) in 2020.[3] The Report sets out various proposals for regulatory reform, one of which is expected to result in significant amendments to the FM Act, such as –

• an increase in the scope of market structures governed by the FM Act, including new trading platforms such as multilateral trading facilities;[4]
• the classification of foreign currency as a financial asset to facilitate oversight on currency trading;[5]
• clarification on the roles assumed by different regulators in the financial markets sector;[6]
• clarification on competition-related issues and the treatment of digital assets;[7] and
• alignment to global best practices in governance, transparency and operational resilience.[8]

The FSCA, in recognising that certain of the proposed amendments require more urgent attention, has accordingly made use of joint standards and conduct standards under the Financial Sector Regulation Act 9 of 2017 (“FSR Act“), such as Joint Standard 1 of 2023[9] and Joint Standard 1 of 2025,[10] as interim measures while the amendment processes run their course.[11]

NPS Act

The review of the NPS Act, as with the FM Act, is driven by the modernisation of the regulatory framework to accommodate new products and market participants in a meaningful and transparent manner. In the past almost 30 years, the payment industry has been the subject of rapid evolution with the rise of new technology and swifter payment methods which are not recognised in the NPS Act.[12] Although South Africa was previously considered a pioneer in the payments industry, it has not unexpectedly fallen behind the prodigious pace of innovation both locally and globally.[13] The SARB, in recognition of the evolving payment landscape, undertook a review of the NPS Act to recognise technological advancements within the safety and security of the National Payment System (“NPS“).

In 2018, the SARB published “Vision 2025” in which it undertook to research and review the existing NPS regulatory framework and to develop new regulatory frameworks in line with domestic and international standards and principles.[14] In this regard, it undertook to draft the NPS Bill by the end of December 2020, however, with the advent of the global pandemic, and significant changes in payment systems which coincided, and sometimes stemmed from the pandemic, both domestically and globally, it has been a challenge for the SARB to keep abreast of the proliferation of new technologies and to bring them within the ambit of the legislation in a meaningful way. It has not been announced when the NPS Bill will be released for public comment but it is anticipated to be in the near future.

In “Positioning the South African Reserve Bank’s Payments Ecosystem Modernisation Programme: a strategic shift to a higher equilibrium” (“PEM Programme“), the SARB notes that the NPS Bill must, inter alia, enable non-banks to participate in the clearing and settling of payments within the National Payments System without requiring bank sponsorship[15] to improve competition, innovation and efficiency, and which would be achieved by adopting an activity-based, as opposed to an entity-based, regulatory approach that supports a fair environment for competition.[16] The PEM Programme will also promote modern payments architectures and systems like Payshap and a pre-funded settlement model[17] for fast payments.[18]

As an interim measure and to give effect to the PEM Programme, on 3 March 2025, the SARB published (i) a draft directive setting out the requirements for specific payment activities (“Directive“), and (ii) a draft exemption notice which designates specific payment activities as not forming part of the business of a bank as defined under the Banks Act 94 of 1990 (“Exemption Notice“), thereby indicating the removal of payment activities from bank exclusivity in National Payment System.

Banking legislation

In the “Regulatory Strategy 2025-2030” (“Strategy“) published by the PA in August 2025, the PA outlined its regulatory and supervisory priorities for the period 2025 to 2030. As part of the Strategy, the PA plans to implement a ‘revised mutual banks regulatory framework’ and a ‘comprehensive and updated regulatory framework’ for co-operative banks and co-operative financial institutions.[19] The above revisions indicate the inclusion of the principle of proportionality in the deposit-taking sector where regulatory requirements are scaled according to the nature, size, complexity and risk profile of the affected entities.[20] The PA is currently developing prudential standards to reflect the above principle and it remains to be seen if the Strategy will result in amendments to the Mutual Banks Act 124 of 1993 and/ or the Co-Operative Banks Act 40 of 2007.

Crypto regulation

In May 2025, the High Court of South Africa in Standard Bank of South Africa v South African Reserve Bank and Others,[21] declared that crypto assets do not fall within the ambit of currency or capital surveillance and regulation under the Exchange Control Regulations, 1961.[22] The ruling has, however, been suspended pending the outcome of the appeal launched by the SARB and National Treasury in the Supreme Court of Appeal. It is anticipated that interim measures will ensue to address the regulatory lacuna created by the judgment and long-term legislative reforms will be undertaken to bring crypto assets within the remit of the SARB.

The PA has identified the need to enhance the regulatory and supervisory frameworks relating to the crypto-asset exposures of financial institutions.[23] This follows the publication in 2022 by the Basel Committee on Banking Supervision of a standard dealing with the requirements for the prudential treatment of banks’ crypto-asset exposures and which is anticipated to be adopted and implemented by member jurisdictions by 1 January 2026.[24] Accordingly, the PA is currently drafting a prudential standard and related disclosure requirements to regulate banks’ crypto asset exposures. The prudential standard is likely to require banks to disclose crypto asset holdings and to hold regulatory capital against such exposure.[25] The PA has acknowledged that fintech will be the most disruptive force in its supervisory environment,[26] and that it will be focusing on developing the regulation of crypto-assets, stablecoins, open finance and artificial intelligence[27] to bring such technologies within its purview.

In September 2025, the Johannesburg Stock Exchange (“JSE“) released draft amendments to the JSE Debt and Specialist Listing Requirements (“Draft Listing Amendments“). The amendments were proposed (i) in response to a position paper regarding the regulation of crypto assets (“Position Paper“) published by the Intergovernmental Fintech Working Group (“IFWG“) in 2021, which was updated in 2025 and (ii) as a result of the JSE’s research regarding international regulation of crypto assets.[28] Recommendation 23 of the Position Paper required licensed exchanges to ensure that their rules and listing requirements cater for the listing of securities that reference crypto assets, in manner satisfactory to the FSCA.[29] The Draft Listing Amendments will, inter alia, allow issuers of exchange traded notes[30] and exchange traded funds[31] to reference spot crypto assets in a direct or indirect manner and on a whole or partial basis.[32]

Conclusion

The financial sector faces wide ranging regulatory reform in the very near future. With incoming amendments to the abovementioned legislation in addition to the Conduct of Financial Institutions Bill being finalised for submission to Parliament, and the draft General Laws (Anti‑Money Laundering and Combating Terrorism Financing) Amendment Bill, 2024 being published last year for comment,[33] the potential changes are vast and very far-reaching. It is therefore essential that market participants are aware of these impending changes to stay afloat in the sea of change.

————————————————————————————————————————————————————————

[1]       Keynote address by Kamlana U “Shaping market integrity through robust and adaptive regulation” (22 August 2025) https://www.fsca.co.za/News%20Documents/SAIFM%20Regulatory%20Summit%202025%20-%20Keynote%20address%20by%20Mr%20Unathi%20Kamlana.pdf [accessed 28 July 2025] page 3

[2]       Media Statement by National Treasury “New submission date: consultation on a discussion paper” (19 March 2020) https://www.treasury.gov.za/comm_media/press/2020/2020031901%20New%20Submission%20Date%20of%20Consultation%20on%20a%20Discussion%20Paper.pdf [accessed 9 September 2025] page 1

[3]       National Treasury “Building competitive financial markets for innovation and growth”  (2020) https://www.treasury.gov.za/comm_media/press/2020/FINANCIAL%20MARKETS%20ACT%20REVIEW.pdf [accessed on 9 September 2025]

[4]       Ibid. Multilateral trading facilities are electronic platforms that operate as an alternative to traditional exchanges. They connect buyers and sellers to trade financial instruments such as derivatives and those which lack an official market

[5]       Ibid

[6]       Kamlana U (2025) page 3

[7]       Ibid

[8]       Ibid

[9]       Titled “Amendments to Joint Standard 2 of 2020 – Margin Requirements for Non-Centrally Cleared Over-The-Counter Derivative Transactions”

[10]      Titled “Criteria for the exemption of an external central counterparty and external trade repository from the provisions of the FMA”

[11]      Kamlana U (2025) page 4

[12]      Page 1 of the SARB “Review of the National Payment System Act 78 of 1998” (September 2018) https://www.treasury.gov.za/publications/other/NPS%20Act%20Review%20Policy%20Paper%20-%20final%20version%20-%2013%20September%202018.pdf [accessed 2 September 2025]

[13]      SARB “Positioning the South African Reserve Bank’s Payments Ecosystem Modernisation Programme: a strategic shift to a higher equilibrium” (2025) https://www.resbank.co.za/content/dam/sarb/publications/other-publications/2025/pem-position-paper.pdf [accessed 10 September 2025] page 3

[14]      Page 5 of the “The national payment system framework and strategy, vision 2025: action plan” (2018) published by the SARB https://www.resbank.co.za/content/dam/sarb/what-we-do/payments-and-settlements/Vision%202025%20-%20Action%20Plan.pdf [accessed 4 September 2025]

[15]      PEM Programme page 8

[16]      PEM Programme page 7

[17]      Pre-funding occurs when settlement participants provide funding to a central point. Payments between settlement participants are then made using these pre-funded deposits to settle a payment before the actual settlement would take place, usually in a few days

[18]      https://www.rmb.co.za/news/how-upcoming-payments-regulation-changes-will-impact-companies-and-consumers [accessed on 4 September 2025]  and PEM Programme page 8

[19]      Page 12 of the Strategy https://www.resbank.co.za/content/dam/sarb/what-we-do/prudential-regulation/pa-regulatory-strategy/PA%20Regulatory%20Strategy%202025-2030.pdf [accessed 10 September 2025]

[20]      Page 11 of the Strategy

[21]      2025 (5) SA 289 (GP)

[22]      Published under the Currency and Exchanges Act No. 9 of 1933

[23]      Page iv of the Strategy

[24]      Page 12 of the Strategy

[25]      Page 42 of the Strategy

[26]      Page 10 of the Strategy

[27]      Page 20 of the Strategy

[28]      Page 2 of the JSE “Proposed Amendments to the JSE Debt and Specialist Listing Requirements” (September 2025)

[29]      Ibid

[30]      An exchange traded note is defined in the Draft Listing Amendments as an investment product, in the form of a note, that reflects the linear (on a one for one basis) performance of underlying securities or benchmarks, such as shares or bonds, an index, an exchange rate or a commodity and is backed by the creditworthiness of the issuer

[31]      An exchange traded fund is defined in the Draft Listing Amendments as a fully funded (unleveraged) fund, registered in terms of Collective Investment Schemes Control Act 45 of 2002, tracking the performance of a specified security, index or currency or a company tracking a commodity

[32]      Page 5 of the Draft Listing Amendments

[33]      The Bill will amend, inter alia, the FSR Act and the Financial Intelligence Centre Act 38 of 2001

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Blockchain technology became available to the public in 2009 when Bitcoin was released.[1] The technology used a vast amount of electricity,[2] the majority of which was consumed in the People’s Republic of China, a country which relies on fossil fuels to produce most of its electricity.[3] Blockchain technology, especially crypto asset[4] mining, soon became synonymous with generating extensive carbon emissions as a result of the high electricity consumption that is associated with using blockchain technology.[5] Despite the aforementioned, blockchain technology is characterised by its decentralised and immutable nature, which makes it secure and transparent as information stored on the blockchain cannot be altered by any single party.[6] By adopting energy-efficient consensus mechanisms, leveraging renewable energy and implementing carbon offset solutions, blockchain is a powerful tool that can be used to achieve global sustainability goals and is applied in sustainability initiatives such as the carbon credits trade, waste reduction, and various sustainable projects. As blockchain technology continues to improve, so does its ever increasing capacity to facilitate the global transition to a more sustainable future.

Integrating sustainability into blockchain technology

The integration of sustainability into blockchain technology, a historically carbon intensive technology, is a groundbreaking shift in how industries can approach environmental responsibility and resource management. The decentralised, transparent and immutable characteristics of blockchain technology promotes transparency as the information is available for all users to access,[7] and is secure as would take the majority of the users of a network acting in concert to change the information.[8] The process of adding information to the blockchain is also efficient as users are not dependant on inefficient central authority.[9]

These characteristics of the technology make it a powerful tool to improve sustainability. Businesses using blockchain technology to adhere to sustainability standards can ensure a higher level of accountability and efficiency as the information stored is transparent to users and cannot be easily altered or manipulated. These benefits can be harnessed to improve the integrity and reliability of information in corporate governance by making practices like back dating impossible.[10] The technology is also suitable for trading carbon credits to facilitate carbon offsetting, a practice which historically has been inconsistent with unreliable data and was susceptible to manipulation and fraud.[11] The use of blockchain technology has made the process more efficient, transparent and reliable.

Changes are also being made to the technology itself to combat its energy intensive nature. Many cryptocurrencies, such as Bitcoin, make use of a proof of work system to verify transactions which by nature requires users to expend a large amount of computing power and electricity.^[12]In an attempt to become more sustainable, the alternative proof of stake was implemented by platforms like Ethereum which has reduced its electricity consumption.^[13]

The developments in blockchain have continued to increase its potential to enhance sustainable development and has shown that it can play a pivotal role in fostering a greener, more resilient future where environmental stewardship and economic growth can co-exist.

Sustainability tokens

Sustainability tokens are crypto assets designed to incentivise and fund environmentally and socially responsible initiatives. Various sustainability tokens have been developed over the years for the aforementioned purpose, including –

1. the FishCoin token, a token issued by the FishCoin Project. The purpose of this project is to eliminate wastage in an industry where 89% of global wild fish stocks are overfished or fully exploited and approximately 60% of the seafood is discarded, lost or wasted in supply chains.^[14] In order to combat this inefficiency, FishCoin uses blockchain technology to enable fishermen to record data about the fish they have caught on blockchain in exchange for tokens.[15] Each person in the supply chain adds to this data in the blockchain until the fish are at the end consumer, being hotels and restaurants. The increased information allows wastages and inefficiencies in the supply chain to be discovered and mitigated. FishCoin, therefore, plays a pivotal role in reducing overfishing and promoting sustainable fishing practices;

• the HARA Agri tokens issued by HARA, a blockchain based technology company. The project aims to address a similar wastage problem which is present in the farming industry, with 30% of global food produce being wasted or lost.^[16] The project encourages farmers to record information on the blockchain regarding their operations in exchange for HARA Agri tokens, which can be exchanged for rewards such as discounts on agricultural supplies.^[17] Farmers can use the information, such as the supply and demand for a specific crop and more effectively manage stock and inventory to mitigate food wastage;[18]

• the Plastic Bank Tokens developed by the social enterprise Plastic Bank. The project aims to reduce plastic waste and provide economic benefits to communities.[19] The token is funded by donations in the form of a membership fees.^[20] It provides communities collecting plastic waste with tokens that can be converted into either (i) money or (ii) goods and services such as tuition and social benefits.^[21] The collected plastic is then recycled by the Plastic Bank partners and reintegrated into new products. This establishes a circular economy where plastic waste is continually recycled and reused. The use of blockchain technology allows the impact of the collections and recycling to be verifiable and traceable;

• the SolarCoin cryptocurrency issued by the SolarCoin Foundation. The foundation aims to promote solar electricity production by reducing the production cost of the electricity. This initiative uses blockchain technology to verify the amount of solar electricity generated by producers registered with the SolarCoin Foundation.[22] The producers are then rewarded with SolarCoins which can be used as a typical cryptocurrency that can be exchanged for other cryptocurrencies or fiat, or spent at a growing network of businesses.[23] This aims to incentivise the production of renewable energy; and

• the carbon credits issued by CarbonX, an organisation which has combined with the Zerofootprint program to use blockchain technology to lower carbon emissions. The Zerofootprint program measures and verifies the carbon impact of an organisation.[24] The organisation can then purchase carbon credits, which are generated through sustainable initiates, like reforestation, to offset carbon emissions.[25] CarbonX uses blockchain technology to store the recorded information and to provide the platform to trade carbon credits. The blockchain technology eliminates historical problems associated with carbon credits by increasing transparency, reliability and eliminating double counting.

The strides that blockchain technology has made in sustainability may also find application in the Republic of South Africa (“South Africa“), a country which has committed to reducing its greenhouse gas emissions as a signatory of the Paris Agreement in terms of which it aims to reach net zero emissions by 2050.[26] As part of this commitment, in July 2024, the Climate Change Act 22 of 2024 (“Act“) was assented to by the President of South Africa. Although the Act is not yet in force, it plans to impose a limit on the amount of greenhouse gases, inter alia, a company may emit by assigning a carbon budget to such company.[27] Blockchain has the potential to be a useful tool in facilitating the implementation of the Act, by incorporating the reliability and transparency of the technology into the reporting process. It can also be used to facilitate the purchase of carbon credits by companies seeking to minimise the amount of carbon tax payable in terms of the Carbon Tax Act 15 of 2019.[28]

In the meantime, companies should in any event consider how they can use blockchain technology in their sustainability efforts. Inspiration can be taken from renewable energy initiatives such as the SolarCoin project. These initiatives are especially important in the South African context where the energy supply is unstable and heavily dependant on fossil fuels and where many South Africans are seeking to become self sustainable.[29] The instability of the power supply should also warrant the selection of an energy efficient consensus mechanism, in the use of blockchain technology in any sustainability project.

Conclusion

At its inception, blockchain technology was energy intensive and relied on fossil fuels to generate the requisite electricity. As the technology developed, so did its capacity to contribute meaningfully to global sustainability initiatives. The decentralised nature of the technology promotes transparency and efficiency that supports sustainability initiatives and reporting. The integration of sustainability in blockchain technology represents an important step toward a more environmentally responsible digital future and its ever developing nature presents unlimited possibilities for future deployment for sustainability initiatives.

[1]       Sedlmeir J et al “The energy consumption of blockchain technology: beyond myth” (2020) https://link.springer.com/article/10.1007/s12599-020-00656-x  [accessed 4 March 2025] page 599 (“The energy consumption of blockchain technology“)

[2]       The energy consumption of blockchain technologypage 599

[3]       https://www.techinasia.com/inner-mongolia-bitcoin-mine [accessed 4 March 2025]

[4]       According to ‘Declaration of a Crypto Asset as a Financial Product Under the Financial Advisory and Intermediary Services Act, 2022’ published under General Notice 1350 in Government Gazette 47334 of 19 October 2022, a crypto asset is defined as a s a digital representation of value that –

                (a) is not issued by a central bank, but is capable of being traded, transferred or stored electronically by natural and legal persons for the purpose of payment, investment and other forms of utility;

                (b) applies cryptographic techniques; and

                (c) uses distributed ledger technology

[5]       Stoll C et al “The carbon footprint of Bitcoin” (2019) http://sciencedirect.com/science/article/pii/S2542435119302557#bib5 [accessed 4 March 2025]

[6]       The UNCTDAD secretariat “Harnessing blockchain technologies for sustainable development” (2024) https://unctad.org/system/files/official-document/ciid52_en.pdf [accessed 4 March 2025].

[7]       Investopedia – Blockchain

[8]       Investopedia – Blockchain

[9]       Investopedia – Blockchain

[10]      Akgiray V “The potential for blockchain technology in corporate governance (2019) https://www.oecd.org/content/dam/oecd/en/publications/reports/2019/06/the-potential-for-blockchain-technology-in-corporate-governance_3f26824e/ef4eba4c-en.pdf#page=20&zoom=100,82,186 [accessed 5 March 2025] page 20

[11]      Hoskin O et al ” Tokenized carbon credits: how blockchain is revolutionizing carbon markets” (2025) https://www.lexology.com/library/detail.aspx?g=2704d8a7-fa26-40ac-8366-9dea0dc4433e [accessed 5 March 2025]

[12]      Alvarez IA et al “Unsealing the secrets of blockchain consensus: A systematic comparison of the formal security of proof-of-work and proof-of-stake” (2024) https://dl.acm.org/doi/pdf/10.1145/3605098.3635970 [accessed 3 March 2025] page 280

[13]      Cambridge Blockchain Network Sustainability Index: CBECI [Accessed 26 February 2025]. Bitcoin used 121.13 TWh of electricity in 2023, while Ethereum used only 0.00585 TWh.

[14]      https://fishcoin.co/ [Accessed 26 February 2025]

[15]      https://fishcoin.co/ [Accessed 26 February 2025]

[16]      D Uzsoki et al “Impact tokens: a blockchain-based solution for impact investing” (2019)  https://www.iisd.org/system/files/publications/impact-tokens.pdf [Accessed 26 February 2025] (”Impact tokens“) page 20

[17]      Impact tokens page 21

[18]      Impact tokens page 21

[19]      https://plasticbank.com/about/ [Accessed 26 February 2025]

[20]      https://plasticbank.com/about/ [Accessed 26 February 2025]

[21]      https://plasticbank.com/about/ [Accessed 26 February 2025]

[22]      https://solarcoin.org/ [accessed 5 March 2025]

[23]      https://solarcoin.org/ [accessed 5 March 2025]

[24]      https://www.carbonx.ca/projects [accessed 5 March 2025]

[25]      https://www.carbonx.ca/projects [accessed 5 March 2025]

[26]      https://www.wri.org/news/statement-south-africas-climate-commitment-much-more-ambitious [access 6 March 2025]

[27]     The Act, section 27

[28]     Section 13.

[29]     https://ember-energy.org/countries-and-regions/south-africa/#:~:text=South%20Africa%20generated%2017%25%20of,the%20highest%20in%20the%20G20 [accessed 6 March 2025]

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Reviewed by Natalie Scott, Director and Head of Sustainability

On 24 December 2024, Cyril Ramaphosa, the President of the Republic of South Africa, signed the Taxation Laws Amendment Act No. 42 of 2024, which introduces a significant tax incentive aimed at promoting the production of battery electric and hydrogen-powered vehicles in South Africa. This incentive reflects the South African government’s commitment to transform the automotive manufacturing industry from the production of primarily internal combustion engine vehicles to include the production of battery electric and hydrogen‑powered vehicles as envisaged in the Electric Vehicles White Paper published in November 2023.[1] Various African countries, like the Togolese Republic, Republic of Ghana, Republic of Benin, Republic of Uganda, United Republic of Tanzania and the Republic of Zambia, have introduced tax incentives for battery electric vehicles, not only to lower to cost of such vehicles to the consumer, but to boost investments in the local manufacture of electric vehicles.[2] South Africa joins a laundry list of African countries that have adopted tax incentives, however, battery electric and hydrogen-powered vehicle manufacturers need to be aware of the manner in which the South African Revenue Service (“SARS“) will apply this tax incentive.

The incentive allows taxpayers to claim income tax allowances of 150% of the cost of –

• any buildings (and improvements);

• new and unused plant and machinery (including the cost of installation of any foundations or supporting structures designed for the plant and equipment); and

• any improvements to plant and machinery acquired by the taxpayer,

that are used mainly in the production of battery electric or hydrogen-powered vehicles in South Africa.

The incentive will apply for 10 years, to assets brought into use from 1 March 2026 and before 1 March 2036.

SARS has also introduced anti-abuse rules, which prevent taxpayers from inflating the cost of the asset or improvement and from claiming the allowance for assets that the taxpayer has sold in terms of an instalment credit agreement.

If the taxpayer sells an asset or ceases to use that asset mainly in the production of battery electric or hydrogen-powered vehicles within five years, there will be a 50% recoupment of the cost of the asset. If the asset has been sold, the recoupment will be in addition to the normal recoupments provided for in section 8(4)(a) of the Income Tax Act No. 58 of 1962, but not exceeding the allowances claimed in respect of that asset.

The extent to which multinationals benefit from the incentives remains to be seen following the enactment of the Global Minimum Tax Act No. 46 of 2024, which introduces a minimum tax rate of 15%, through a domestic minimum top-up tax (“DMTT“), for companies forming part of a multinational group with revenues exceeding EUR750 million. The rules involve complex calculations, which allow for a level of exclusion from the DMTT based on the taxpayer’s eligible payroll costs and tangible asset values. The effect of the section 12V allowance and the DMTT will have to be carefully modelled to ensure that taxpayers investing in the production of battery electric or hydrogen-powered vehicles obtain the full benefit of the section 12V allowance.

Even though this tax incentive is a leap in the right direction for battery electric and hydrogen‑powered vehicle manufacturers, the sustainability challenges that South Africa faces may dilute the benefits that the tax incentive aims to achieve. South Africa is heavily reliant on fossil fuel-based electricity, with approximately 80-85% of South Africa’s electricity being generated via coal-fired power stations,[3] which ranks South Africa as one of the most carbon intensive nations globally. While electric vehicles are marketed as having “zero tailpipe emissions” and are optically favoured, the reality is that charging these vehicles will add to the load already borne by the carbon-heavy and buckling electricity grid[4] and potentially offer only marginally less greenhouse gas emissions, when measured from a supply-chain perspective. Vehicle manufacturers’ should, therefore, consider a concurrent shift to renewable energy sources such as “off-grid solar‑powered battery charging infrastructure that can be made available to consumers[5] to reduce reliance on the national electricity grid.

The manufacturing process for electric and hydrogen-powered vehicles, particularly their batteries, is energy-intensive and involves the extraction of rare earth metals like lithium, cobalt, and nickel.[6] The mining of these materials often has significant environmental and social consequences, raising questions about the sustainability of scaling up electric and hydrogen-powered vehicles under this incentive. In addition, the disposal and recycling of electric vehicle batteries at the end of its life-cycle is frequently an overlooked issue. South Africa currently has limited infrastructure to handle the safe recycling of lithium-ion batteries, which pose environmental risks if not properly managed.[7]

South Africa’s 150% tax incentive for electric vehicle manufacturers is a bold move toward modernising the country’s automotive sector and aligning with global climate goals. However, the tax incentive is undermined by systemic challenges, including a coal-dependent national grid, the environmental impact of electric vehicle manufacturing, limited adoption and sustainable waste management processes. For this incentive to deliver tangible sustainability benefits, it must be paired with investments in renewable energy, equitable electric vehicle adoption strategies, sustainable manufacturing and recycling practices and emissions control throughout the supply chain process. Only then can South Africa truly drive towards a greener automotive future.

[1]        Electric Vehicle White Paper, November 2023, page I

[2]        “Government Removes Tax on Electric Vehicles“, 12 December 2024, available on https://zanis.gov.zm/index.php/2024/12/12/government-removes-tax-on-electric-vehicles/#:~:text=Government%20says%20it%20has%20removed,of%20EVs%20in%20the%20country. (accessed on 14 January 2025)

[3]        https://www.trade.gov/country-commercial-guides/south-africa-energy (accessed on 20 January 2025)

[4]        https://www.energy.vic.gov.au/renewable-energy/zero-emission-vehicles (accessed on 21 January 2025)

[5]        https://charge.co.za/media-statement-charge-welcomes-ev-tax-incentive-but-more-regulatory-action-needed-for-ev-charging/ (accessed 22 January 2025)

[6]        https://greenly.earth/en-us/blog/ecology-news/the-harmful-effects-of-our-lithium-batteries (accessed on 24 January 2025)

[7]        https://ewasa.org/new-battery-recycling-plant-opens-in-gauteng/#:~:text=Unfortunately%2C%20battery%20recycling%20is%20a,its%20facility%20in%20Germiston%2C%20Gauteng. (accessed on 24 January 2025)

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The 2021 decision of a Dutch district court in Milieudefensie v Royal Dutch Shell[1] was widely regarded as an inflection point in global climate litigation. In its judgment, the district court ordered Shell plc (“Shell“) to reduce its global CO₂ emissions by at least net 45% by 2030, relative to their 2019 level. The imposition of a concrete obligation on a corporate entity to reduce its emissions marked a decisive development in climate change jurisprudence, which up to that point had focused on the responsibilities of States to protect environmental rights. Shell appealed against the judgment and sought a reversal of the district court’s order. On 12 November 2024, the Dutch Court of Appeal handed down a decision[2] (“Appeal Decision“) which overturned the order binding Shell to the 45% reduction standard, but affirmed the obligation resting on corporations like Shell to limit their CO₂ emissions to counter the harmful effects of climate change.

The appeal court’s finding that failure by Shell to adhere to a particular reduction standard would not constitute an “unlawful act” under Dutch law was grounded in the concept of the “unwritten social standard of care” contemplated in the Dutch Civil Code. Much like the wrongfulness element in the South African law of delict, this standard of care is “interpreted as much as possible on the basis of objective starting points, such as legislation, general legal principles, fundamental rights, case law and/or expert reports”.[3] The appeal court considered these sources in turn.

Article 2 and Article 8 of the European Convention on Human Rights have been interpreted to impose positive obligations on States to take measures to protect the rights to life and private/ family life, respectively, including preventing the harmful effects of climate change. Additionally, several reports and resolutions of the United Nations affirm that protection from these harmful effects is a human right. The appeal court recognised that fundamental rights, and the values they embody, may have “horizontal effect” and impact private-law relationships by giving substance to open standards and general concepts such as the “social standard of care”. From a South African perspective, environmental rights are explicitly enshrined in section 24 of the Constitution of the Republic of South Africa, 1996 (“Constitution“), and the horizontal application of fundamental rights, particularly by way of their influence on the common law, has long been recognised as a hallmark of South Africa’s culture of transformative constitutionalism.

The court in the Appeal Decision found that no direct reduction obligations or commitments arise from the various pieces of European Union (“EU“) and Dutch legislation that regulate the climate-related obligations of corporations. Whilst not exhaustive, companies’ obligations under existing legislation must be taken into account when assessing the fulfilment of any duty of care owed by those companies to the public at large. The regulatory framework presently in place in the EU contemplates the use of price incentives to curb emissions and leaves companies free to adopt their own approaches to reducing emissions in line with the targets set by the Paris Agreement.[4]

South African climate legislation bears resemblance to EU law, whilst differing in certain respects. The Climate Change Act 22 of 2024 (“Climate Change Act“), the commencement date of which has yet to be proclaimed, contemplates the allocation of a “carbon budget” to any person conducting an activity which emits, or has the potential to emit, one or more of the greenhouse gases[5] that the minister responsible for environmental affairs (“Minister“) reasonably believes causes or is likely to cause or exacerbate climate change.[6]

A carbon budget must have a duration of at least three successive five-year periods and specify the maximum amount of greenhouse gas emissions that may be emitted during the first five-year period. A person to which a carbon budget has been allocated must prepare and submit to the Minister for approval a greenhouse gas mitigation plan which describes the measures that it proposes to implement to remain within its carbon budget. The approved plan must be implemented, and progress in this regard must be monitored, evaluated and reported on annually by that person. Should such reporting indicate that a person has failed, is failing or will fail to comply with its carbon budget, it must provide a description of measures that it will implement in order to remain within its carbon budget.

Alongside carbon budgets, the mitigation system envisaged in the Climate Change Act includes the determination of sectoral emissions targets (“SETs“) for certain sectors and sub‑sectors identified by the Minister.[7] These targets will include “quantitative and qualitative greenhouse gas emission reduction goals”.[8] The ministers responsible for the administration of the relevant sectors and sub-sectors will be tasked with developing and implementing policies and measures to ensure that the targets are not exceeded.

The implementation of SETs was initiated with the approval of the SET Framework by Cabinet in November 2021. This was followed by the publication of the Draft SET Report on 26 April 2024,[9] which sets out the proposed SETs to be adopted by sector departments, including the energy sector.[10] The oil and gas sector is not specifically mentioned, although it is recorded that the draft SETs will be refined following public consultation before being recommended to Cabinet for allocation to the relevant departments. Whilst Shell has announced its intention to divest from its downstream South African operations as part of its “commitment to simplification, performance, and discipline”,[11] those corporations which do operate in the oil and gas sector in South Africa are likely to be expected to comply with more stringent regulation and scrutiny from an emissions perspective in the near future.

It is clear from the aforegoing that the Climate Change Act, like EU law, provides for the allocation of emission allowances to designated emitters,[12] emissions “targets” and “goals” for designated sectors, and requirements for emitters to report on their emissions and implement mitigation plans, but stops short of imposing binding emissions standards. The approach adopted in the Climate Change Act thus, on its face, accords with the court’s finding in the Appeal Decision.

In the latter part of its judgment, the appeal court focused specifically on Shell’s obligation to reduce its scope-three emissions, being those indirect emissions generated in its value chain, including from the use or consumption of products it supplies to third parties, such as the combustion of Shell’s fossil fuel products by end users. The court recognised the consensus amongst climate scientists that, in order to limit global warming to 1.5°C, reduction pathways must be chosen in which CO₂ emissions are reduced by a net 45% by the end of 2030. These pathways, however, involve a global reduction representing an average for all sectors, places and greenhouse gases. Applying the 45% reduction standard to Shell is thus insufficiently case specific and ignores the details of Shell’s supply portfolio. Additionally, no unequivocal conclusion could be drawn from the sources presented to the court regarding the required reduction in emissions from the oil and gas sector in particular on which to base an order against any specific company. Finally, it was not firmly established by the respondents that limiting Shell’s resale of fossil fuels purchased from third parties would be effective in reducing its scope-three emissions.

Despite the appeal court’s finding that corporations could not be held to binding emissions reduction standards, the Appeal Decision is far from a death blow to climate litigation. The court (i) strongly suggested that corporations have an obligation to reduce their scope-three emissions, and (ii) recognised that foundations or associations have standing to bring claims for the protection of sufficiently similar environmental interests of other persons.

South Africa’s transformative Constitution, with its explicit protection of environmental rights and broad approach to standing, is ripe ground for climate change litigation, particularly in light of the impending coming into force of the Climate Change Act. Whether this litigation will track the trajectory of the Shell saga, or chart its own course, remains an open question.

[1] Case number C/09/571932/HA ZA 19-379.

[2] Under case number 200.302.332/01.

[3] Paragraph 7.2 of the Appeal Decision.

[4] Paragraph 7.56 of the Appeal Decision.

[5] “Greenhouse gases” are defined in section 1 of the Climate Change Act as “gaseous constituents of the atmosphere, both  natural and anthropogenic, that absorb and re-emit infrared radiation”, and include CO_2, methane and ozone.

[6] Section 27(1) of the Climate Change Act, read with sections 26(1) and 26(2), requires the Minister to publish, by notice in the Government Gazette, a list of (i) the gases which the Minister reasonably believes causes or is likely to cause or exacerbate climate change, and (ii) the activities that emit, or have the potential to emit, one or more of these gases. We note that as at the date of this article no such list has been published.

[7] Section 25(1) and 25(3) of the Climate Change Act.

[8] Section 25(4)(a) and (c) of the Climate Change Act.

[9] Accessible at https://www.gov.za/sites/default/files/gcis_document/202404/50571gon4763.pdf (accessed on 21 November 2024).

[10] The Draft 9^th National Greenhouse Gas Inventory Report, published by the Minister on 2 May 2024, identifies the energy sector as a sector that accounts for a substantial portion of South Africa’s total emissions. Furthermore, oil and natural gas is identified as a “key category” with a “significant influence” on the country’s total inventory of greenhouse gases. The vast majority of energy-sector emissions are generated by fuel combustion activities, although fugitive emissions from the fuels sector also have an impact. Fugitive emissions in the context of the oil and gas sector include emissions due to venting, flaring and all other sources associated with, inter alia, the exploration, production and transmission of oil and natural gas.

[11] Shell.co.za (10 May 2024) “Important Update for Our Loyal Customers!” (accessible at https://www.shell.co.za/media/2024-media-releases/important-update-for-our-loyal-customers.html), accessed on 20 November 2024.

[12] Section 27(1) of the Climate Change Act provides that the Minister must allocate a carbon budget to any person that conducts an activity listed in terms of section 26(2) and, inter alia, determine quantitative greenhouse gas emission thresholds to identify persons which are to be assigned a carbon budget and required to submit greenhouse gas mitigation plans.

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Following the COVID-19 pandemic, more people than ever are ordering goods online based on the variety of good and services available, convenience, quick delivery times and usually competitively prices, however, the risks associated with issuing an electronic funds transfer credit payment instruction (“EFT Payment Instruction“) to make payment for such online goods and services have been mostly understated.

The emergence of financial technology (fintech) companies that use technology to provide innovative tools, products and services has offered the e‑commerce environment various tools to “optimise” e-commerce transactions, with screen-scraping being one of such tools. Screen scraping refers to the process where computer techniques are deployed to solicit a payer (being a consumer)[1] to divulge his/ her online banking login credentials so that the “screen scraper” can use the payer’s online banking login credentials to issue an EFT Payment Instruction on behalf of the payer.[2] Unbeknownst to most payers at the time of the transaction, they are unwittingly authorising an independent third party to issue an EFT Payment Instruction on their behalf without having actually logged onto their online banking account (either via the website or mobile application versions). This transfer of personal information leaves the payer more susceptible to (i) cyberattacks, (ii) data breaches (including in relation to the payer’s personal information), (ii) fraud and (iv) financial losses.[3]

In response to growing number of ‘authorised’ independent third party payments taking place via EFT Payment Instructions and the increasing risks to consumers, on 15 November 2024, the South African Reserve Bank (“SARB“), in accordance with section 12 of the National Payment System Act No. 78 of 1998 (“NPS Act“), published the “Directive in respect of issuing of electronic funds transfer credit payment instructions on behalf of the payer in the national payment system” (“Directive 2“). The purpose of Directive 2 is to impose more stringent requirements on independent third parties issuing EFT Payment Instructions on behalf of payers, using screen scraping or any other technology tools, in the national payment system.

Directive 2 prohibits any person (including a juristic person) from issuing an EFT Payment Instruction on behalf of a payer unless that person –

• is registered with the SARB, in such manner and form that the SARB prescribes in Directive 2, which, inter alia, involves –

• supplying the SARB with the requisite supporting documents;

• employing or appointing a qualified person(s) with relevant experience who will ensure compliance with the relevant legislation, rules, regulatory frameworks and agreements;

• demonstrating the manner in which the informed consent of the payer will be obtained before issuing an EFT Payment Instruction on behalf of such payer; and

• demonstrating to the SARB that it has the necessary processes and systems in place to secure the payer’s data and online banking credentials;[4]

• has obtained the informed consent of the payer before issuing any EFT Payment Instructions on behalf of the payer; or

• is exempted by the SARB from registering in accordance with Directive 2.[5]

In addition to the registration requirements, Directive 2 imposes ongoing obligations on persons issuing EFT Payment Instructions on behalf of payers. In this regard, such persons must, inter alia, –

• ensure that the marketing practices of its products and services to payers are not fraudulent or likely to create false and misleading statements;

• inform the payer if it has entered into any contract with a clearing system participant[6] to issue EFT Payment Instructions on behalf of the payer and publicly disclose the terms and conditions for using its services;

• obtain the informed consent of the payer, in the manner prescribed in Directive 2, before using his/ her online banking credentials to access the transactional accounts of the payer to issue an EFT Payment Instruction on behalf of the payer;

• have sound and effective policies, systems and procedures in place to mitigate operational risks;

• comply with all requirements of the Protection of Personal Information Act No. 4 of 2013 to protect the personal information of the payers;

• have an insurance or guarantee mechanism against possible losses for payers and beneficiaries resulting from fraud or refunds; and

• submit monthly reports to the SARB by no later than the 15^th day of each month.[7]

Paragraph 6 of Directive 2 authorises the SARB and its representatives to monitor compliance with these directives and any person that contravenes Directive 2 may be liable to pay a fine not exceeding R1,000,000 or sentenced to a term of imprisonment not exceeding five years, or both a fine and a term of imprisonment.[8]

Directive 2 comes into effect 90 days after the publication thereof, or on such later date as may be communicated by the SARB. All persons who issue EFT Payment Instructions on behalf of payers are therefore encouraged to initiate discussions with the SARB to align its current and/ or future business practices with Directive 2.

[1]        “Payer” is defined in paragraph 1.18 of Directive 2 as “a person that holds a payment account and allows a payment instruction to be issued from that payment account”

[2]        Paragraph 1.23 of Directive 2

[3]        Paragraph 2.5 of Directive 2

[4]        Paragraphs 5.1.4 and 5.2.1 of Directive 2

[5]        Paragraphs 5.1.1 and 5.1.2 of Directive 2

[6]        “Clearing system participant” is defined in section 1 of the NPS Act as “a bank, a mutual bank, a co-operative bank, a branch of a foreign institution or designated clearing system participant that clears in the manner contemplated in section 4(2)(d)(i) [of the NPS Act]”

[7]        Paragraph 5.3 of Directive 2

[8]        Paragraph 7.3 of Directive 2, read with sections 12(8) and 14(a) of the NPS Act

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The Financial Intelligence Centre (“FIC“) on 15 November 2024 published “Directive 9 concerning the implementation of the ‘Travel Rule’ relating to crypto asset transfers in accordance with the Financial Action Task Force Recommendations” (“Directive 9“). The directive, which enters into force on 30 April 2025, seeks to ensure that crypto asset service providers (“CASPs“), in carrying out crypto asset transfers, implement the requirements of Recommendation 16 of the Financial Action Task Force (“FATF“).

Directive 9 applies to all accountable institutions listed in items 12 and 22 of Schedule 1 of the Financial Intelligence Centre Act 38 of 2001 (“FIC Act“) that are ordering, intermediary or recipient CASPs and “facilitate or enable the origination or receipt of domestic and cross-border transfers of crypto assets” or “act as an intermediary in receiving or transmitting the crypto assets for or on behalf of a client”.

Directive 9 sets out separate obligations in respect of –

• ordering CASPs, which initiate transfers of crypto assets upon receipt of a request from or on behalf of an originator;

• intermediary CASPs, which receive and transmit crypto assets on behalf of another CASP with which they do not have a business relationship; and

• recipient CASPs, which receive crypto assets and make them available to a beneficiary.

Prior to executing a transfer, an ordering CASP is required to transmit to the recipient CASP certain identifying information concerning both the originator and beneficiary of the transfer, including its distributed ledger address associated with the transfer and crypto asset account number, if applicable. Directive 9 places an obligation on ordering CASPs to conduct due diligence in respect of the originator (subject to certain exceptions), and any counterpart CASP to which it transmits information.

An intermediary CASP must ensure that all originator and beneficiary information pertaining to a transfer is transmitted to the next CASP in the transaction chain, whilst a recipient CASP is required to verify the identity of the beneficiary. In respect of cross-border transfers, intermediary and recipient CASPs must (i) take reasonable measures to identify transfers that lack the requisite information, and (ii) “develop, document, maintain and implement effective risk-based policies and procedures” for determining when to execute, suspend execution or return a transfer that lacks such information.

Ordering and intermediary CASPs must transmit the requisite information prior to or simultaneously with the crypto asset transfer itself, and must transmit and store this information in a secure manner. Ordering and recipient CASPs must “develop, document, maintain and implement effective risk-based policies and procedures” for the treatment of transfers involving “unhosted wallets”, being crypto wallets “where the user has exclusive control of the private keys”.

The relevant measures, policies and procedures which CASPs are required to implement in terms of Directive 9 must be included in the CASP’s risk management and compliance programme. Given that failure to comply with Directive 9 could lead to the imposition of administrative sanctions, CASPs would be well advised to seek legal advice in respect of their obligations under the FIC Act, and Directive 9 in particular, to ensure compliance.

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A recent study conducted by the Manchester Metropolitan University revealed that the processes intended to decontaminate noxious liquid landfill waste before it re-enters rivers and sewers lead to increased levels of some of the worst toxic chemicals, being per- and poly‑fluoroalkyl substances (“PFAS”).[1] PFAS is the umbrella term that refers to a group of thousands of synthetic chemicals (approximately 15,000) that are known for their indestructible and non-stick properties. PFAS are found in various domestic products, such as waterproof clothing, furniture, cookware, electronics, food, packaging, and firefighting foams.[2] Due to its persistence and resistance to natural degradation processes, PFAS do not break down for thousands of years, which means that these chemicals essentially exist forever, resulting in ever-increasing levels of these substances in the air, water, and soil.

The first PFAS were created in 1940, and studies over the years have linked PFAS to a wide range of diseases, including cancer and birth defects.[3] The hazardous nature of PFAS has led to various countries imposing restrictions and bans on the production, distribution, import, and export of PFAS and other hazardous substances. In South Africa, the Minister of Forestry, Fisheries and the Environment (“Minister of FFE”) published the “Regulations to Prohibit the Production, Distribution, Import, Export, Sale and Use of Persistent Organic Pollutants that are listed by the Stockholm Convention on Persistent Organic Pollutants” (“POP Regulations”).[4] In terms of the POP Regulations, no person may produce, distribute, import, export, sell or use, inter alia, per-fluorooctanoic acid (“PFOA”), which is a type of PFAS, its salts and PFOA-related compounds.[5] Any person who contravenes the POP Regulations may be liable to pay (i) a minimum fine of R5,000,000 or may be imprisoned for five years for a first offence, or receive both a fine and imprisonment or (ii) a maximum fine of R10,000,000 or may be imprisoned for 10 years in the case of a second or subsequent offence, or receive both a fine or imprisonment.[6] The POP Regulations contained transitional provisions, in terms of which the substances listed in Regulation 3 of the POP Regulations were phased out over a 12-month period.

In 2002, South Africa acceded to the “Convention on the Prior Informed Consent Procedures for Certain Hazardous Chemicals and Pesticides in International Trade” (“Rotterdam Convention”). The Minister of FFE, accordingly, enacted the “Regulations to Domesticate the Requirements of the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 2023 (“Rotterdam Regulations”).[7] Even though the Rotterdam Regulations will only come into effect on 12 December 2024 and are not yet in effect, as at the date of this article, it makes provision for, inter alia, –

• a general prohibition in terms of which no person may import chemicals into or from South Africa without prior consent, unless such chemicals are (i) an unintentional contaminant in products or (ii) to be used for laboratory-scale research or as a reference standard;

• the process to obtain prior consent from the Designated National Authority to import or export chemicals from South Africa;

• the record-keeping obligations imposed on persons who import or export chemicals from South Africa in accordance with the Rotterdam Regulations;

• the list of chemicals controlled under the Rotterdam Regulations; and

• the penalties for any contraventions of the Rotterdam Regulations.

The South African legislature has published Regulations and Norms and Standards to address the growing concerns around landfills and to mitigate against the potential contamination of groundwater sources. In this regard, the Minister of FFE enacted the “National Norms and Standards for Disposal of Waste to Landfill” (“Landfill Norms and Standards“),[8] which, inter alia, sets out the various landfill classifications and that regularises the standards for the containment barriers of landfills. In addition, the Department of Water and Sanitation published its “Guideline for Pollution Control Barrier System Design”,[9] which sets out cost-effective and environmentally acceptable waste disposal facility designs to prevent groundwater and surface water pollution.

Despite the legislative efforts of the South African legislature, illegal landfills and dumpsites remain a concern, especially considering the potential of PFAS and other hazardous chemicals to cause severe pollution that is detrimental to the environment and human health. It is estimated that 90% of the waste produced in South Africa ends up in landfills.[10] Globally, sanctions against multinational companies that contravene local and international laws pertaining to waste management are increasing, with one of the biggest recorded settlements being a $10.3 billion in terms of which a prominent multinational conglomerate agreed to pay this settlement following allegations that it had contaminated public water sources with, inter alia, PFAS.[11] South African companies are urged to familiarize themselves with the POP Regulations and the steps they are required to take to ensure compliance at all times with South Africa’s waste management legislation, and now specifically in relation to PFAS and other hazardous chemicals.

[1] https://www.theguardian.com/environment/2024/nov/04/decontamination-of-landfill-waste-leads-to-increase-in-toxic-chemicals-says-study#:~:text=Landfills%20are%20well%20known%20to,by%20as%20much%20as%201%2C335%25. (accessed on 5 November 2024)

[2]         https://www.theguardian.com/environment/2023/feb/23/what-are-pfas-forever-chemicals-how-toxic-are-they-and-how-do-you-become-exposed (accessed on 6 November 2024)

[3]         https://www.theguardian.com/environment/2024/oct/15/cost-dealing-pfas-problem-sites-frightening-environment-agency-england (accessed on 6 November 2024) 

[4]         Published in terms of section 25(3) of the National Environmental Management Act, in Government Gazette 44449, on 12 May 2021

[5]         Regulation 3 of the POP Regulations

[6]         Regulation 4 of the POP Regulations

[7]         Published in terms of section 25(3) of the National Environmental Management Act, in Government Gazette 48098, on 21 February 2023

[8]        Published in terms of section 7(1)(c) of the National Environmental Management: Waste Act No 59 of 2008

[9]        Guideline for Pollution Control Barrier System Design, published on 3 September 2021

[10]      https://www.regenize.co.za/landfill-crisis#:~:text=In%20South%20Africa%2C%20the%20landfill,at%20source%20can%20be%20recycled. (accessed on 6 November 2024)

[11]      https://smartwatermagazine.com/blogs/helen-hulett/3ms-big-water-payout-south-africas-industry-next-line (accessed on 5 November 2024

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Incidental credit attracts renewed interest in the context of the Financial Intelligence Centre Act 38 of 2001

Incidental credit agreements have, to a certain extent, traditionally been regarded as somewhat ancillary or peripheral – perhaps even incidental – to the overall scheme of consumer credit legislation. Several key provisions of the National Credit Act 34 of 2005 (“NC Act“) do not apply to incidental credit agreements, including those dealing with assessments of creditworthiness and reckless credit.

Notably, persons providing incidental credit are not required to register as credit providers in terms of section 40(1) of the NC Act. This stands to reason, given that incidental credit agreements, as defined in the NC Act, ordinarily arise during the course of any commercial transaction in which, inter alia, a fee, charge or interest becomes payable when payment of an amount charged in terms of an account rendered to a consumer is not made on or before a determined period or date. The definition of an incidental credit agreement is thus sufficiently broad to include any agreement that entitles a supplier to charge penalty or default interest on outstanding payments by the consumer.

Despite the limited application of the NC Act to incidental credit agreements, a person who supplies goods or services under such an agreement to which the NC Act applies is nonetheless a “credit provider” as defined in section 1 of the NC Act. Furthermore, an incidental credit agreement constitutes a “credit agreement” as contemplated in section 8 of the NC Act. The regulation of incidental credit thus falls squarely within the remit of that statute.

The terms “credit provider” and “credit agreement” have taken on new significance owing to their use in Schedule 1 of the Financial Intelligence Centre Act 38 of 2001 (“FIC Act“), which sets out those persons and organisations that are required to register as accountable institutions in terms of section 43B of the FIC Act. In this regard, Schedule 1 at item 11 refers to any person who –

• carries on the business of a credit provider as defined in the NC Act; or
• carries on the business of providing credit in terms of any credit agreement that is excluded from the application of the NC Act by virtue of the threshold provisions  contained in section 4 of the NC Act.[1]

The meaning of the phrase “to carry on business” for purposes of item 11 of Schedule 1 is unclear, as that term is not defined in the FIC Act. However, the Financial Intelligence Centre (“FIC“) in the Draft Public Compliance Communication No. 23A, dated 15 December 2022 (“Draft PCC“) adopts a wide interpretation of “credit provider”, stating that the provision of credit need not “form part of the core business” of an institution in order for that institution to be “deemed to be a credit provider specifically for purposes of the credit agreement”. This diverges from the FIC’s position in relation to high-value goods dealers, which requires that the trade of such goods must “form part of [the] ordinary course of business” of an entity for it to be regarded as an accountable institution.

It is important to note that item 11 of Schedule 1 is concerned solely with whether a person falls within the definition of a credit provider (or provides credit in terms of any credit agreement), and not with whether such person is required to be registered as a credit provider under the NC Act. In this regard, the courts have settled on the view that the inclusion of a clause entitling a supplier to claim interest if a debt is not paid on or before the expiry of a determined period brings an agreement within the ambit of an incidental credit agreement.[2] Accordingly, a supplier will be regarded as an accountable institution in terms of the FIC Act if it concludes agreements with its customers that provide for penalty interest, notwithstanding the fact that the agreements themselves may be excluded from the application of the NC Act entirely by virtue of the threshold provisions in section 4 of that statute.

In light of the above, it can be concluded that the FIC’s interpretation of item 11 in the Draft PCC, whilst arguably uncommercial and unbusinesslike, is one that is supported by the ordinary meaning of the FIC Act.[3] The implications of this approach are far-reaching, in so far as it imposes onerous obligations on entities beyond those that would ordinarily be expected to comply with the FIC Act.

Providers of incidental credit would, accordingly, be well advised to seek legal advice in respect of their obligations under the FIC Act so as to ensure compliance, particularly in light of the contents of the Draft PCC.

[1] Sections 4(1)(a) and 4(1)(b) of the NC Act exclude (i) credit agreements concluded with a consumer that is a juristic person having an asset value or annual turnover in excess of R1,000,000, and (ii) large agreements concluded with juristic persons, from the ambit of the NC Act.

[2] Independent Plumbing Suppliers (Pty) Ltd v Classen 2014 JDR 1311 (GP) at paragraph 40. See also Collotype Labels RSA (Pty) Ltd v Prinspark CC and Others (6722/2016) [2016] ZAWCHC 159 (9 November 2016). These judgments, whilst unreported, signal a shift away from the reasoning of the court in the earlier case of Voltex (Pty) Ltd v SWP Projects CC and Another 2012 (6) SA 60 (GSJ), which construed interest charged upon failure to pay timeously as being payable “as a consequence of the breach of the agreement, as damages”, and not “in terms of” the agreement, as contemplated in the definition of an incidental credit agreement in the NC Act.

[3] The Draft PCC, despite being in draft form and subject to change, provides an important indication of the strict approach adopted by the FIC in relation to the interpretation of item 11 of Schedule 1 of the FIC Act.

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On 2 October 2023, the Minister of Forestry, Fisheries and the Environment (“Minister“) published the Proposed Amendments to the Regulations Regarding the Control of the Import or Export of Waste under GN 3928 in GG 49390 (“Amendment Notice“). The Amendment Notice called for members of the public to submit comments on certain proposed changes to the Regulations Regarding the Control of the Import or Export of Waste, published under GN 22 in GG 42175 of 21 January 2019 (“Regulations“).

The Regulations aim, in accordance with the power granted to the Minister in terms of section 69(1)(j) of the National Environmental Management: Waste Act 59 of 2008 (“Waste Act“), to establish procedures and control measures for the import, export and transit of waste. The proposed amendments to the Regulations are intended to give effect to South Africa’s obligations under the “relevant international agreements on transboundary movements of waste“.[1] In this regard, South Africa is a party to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (“Basel Convention“). The Preamble to the Basel Convention recognises, inter alia, that –

“States should take necessary measures to ensure that the management of hazardous wastes and other wastes including their transboundary movement and disposal is consistent with the protection of human health and the environment whatever the place of disposal.” [2]

It is further acknowledged that transboundary movements of waste (i) should be permitted only when conducted under conditions that do not endanger human health and the environment, and conform with the provisions of the Basel Convention, and (ii) should be reduced to a minimum, especially in light of the limited capabilities of developing countries to manage waste. Accordingly, the Basel Convention establishes certain standards for the transboundary movement of waste, particularly, a requirement of prior notice of the import of certain forms of waste to the receiving country, and written consent to the import of such waste by that country.[3]

In light of the above, the Regulations, read together with the Amendment Notice, designate the Department of Forestry, Fisheries and the Environment (“Department“) as the “competent authority“[4] that will consider applications for the “transboundary movement“[5] of waste in South Africa. Regulation 4(1) of the Regulations provides that no person may (i) import any waste from a country, (ii) export any waste to a country, (iii) transmit any waste through South Africa, or (iv) re-import waste from a country without obtaining the “consent“[6] required for the transboundary movement of waste. Additionally, regulation 4 contains explicit prohibitions on the import of (i) “general waste“[7] for landfilling, (ii) “hazardous waste“[8] from a developed country, (iii) the infectious portion of medical waste, and (iv) “mixed waste“[9] streams.

The Regulations distinguish between applications for the import and export of hazardous and “non-hazardous waste“[10]. In this regard, all applications must include –

• a letter of request, either from the Department of the country of export (in the case of imports to South Africa), or the exporter (in the case of exports from South Africa);
• the waste management licence of the receiving waste treatment facility (or equivalent legal documentation in the country of import, in the case of exports from South Africa); and
• a contract between the exporter and importer, alternatively, in the case of imports to South Africa where the importer does not own the receiving waste treatment facility, the contract between the importer and the receiving waste treatment facility.

Additional requirements imposed in respect of hazardous waste include –

• in the case of imports to South Africa, a completed notification form (provided in Annexure 1 to the Regulations) stamped by the competent authority of the export country. The notification form makes provision for the disclosure of, inter alia, the quantity of waste, designation and composition of the waste, waste identification code (as per the Basel Convention, provided in Annexure 4 to the Regulations), and disposal/ recovery operations. In the case of exports, such a form is only necessary if required by the country of import;
• applicable insurance or other financial guarantee covering the movement of waste and environmental clean-up in the case of an incident; and
• a material safety data sheet for such hazardous waste.

A significant amendment to the Regulations contemplated in the Amendment Notice is the introduction of a requirement for the submission of a notification form for the import or export of certain categories of non-hazardous plastic waste. Category Y48 of “wastes requiring special consideration“[11] makes an exception for, inter alia, certain forms of plastic waste that are “destined for recycling in an environmentally sound manner and almost free from contamination and other types of wastes“. Furthermore, in the case of non-hazardous waste, the contract between the exporter and importer that is required to be submitted to the Department must include liability for environmental cleanup in the case of an incident. The proposed additions to the Regulations are pursuant to the amendment of the Basel Convention in 2019 to include plastic waste as a regulated material.

Following the submission of an application as contemplated above, the Department must issue a decision in the form of a consent with conditions, or refusal with reasons. Once a consent has been granted, the provisions of regulation 11 of the Regulations become relevant –

• at least seven days before the shipment of waste reaches the port, the importer or exporter, as the case may be, must submit a movement document to the Department, which document is provided in Annexure 2 to the Regulations;

• in the case of imports to South Africa, the importer must provide the Department with a “safe disposal certificate“[12] from the waste treatment facility within 30 days of reuse, recycling or recovery of the waste; and

• regulations 11(2) and 11(4) make provision for circumstances in which waste is not accepted by the waste treatment facility in the case of imports and exports, respectively.

Noncompliance with the obligations outlined above constitutes an offence in terms of regulation 13 of the Regulations, and a person convicted of such an offence is liable to (i) imprisonment for a period not exceeding 15 years, (ii) an appropriate fine,[13] or (iii) both a fine and imprisonment.

It should be noted that the Minister has yet to issue a proclamation in the Government Gazette to bring the Regulations into force. The import and export of certain forms of waste, accordingly, continues to be regulated under the International Trade Administration 71 of 2002 (“ITA Act“) and the relevant regulations promulgated thereunder. Notably, in terms of the Import Control Regulations, published under GN R91 in GG 35007 of 10 February 2012, no “waste and scrap of whatever nature“, with limited exceptions, shall be imported into South Africa except by virtue of an import permit issued in terms of section 6 of the ITA Act. The International Trade Administration Commission presently co-operates with the Department in considering applications for such permits.

The finalisation of the Regulations will constitute an import step in the consolidation and formalisation of the regulatory environment surrounding the import and export of waste and will ensure compliance with South Africa’s obligations under the Basel Convention.

[1] See item 3 of the Schedule to the Amendment Notice, which contemplates an amendment of the purposes clause in regulation 2 of the Regulations.

[2] Preamble to the Basel Convention.

[3] Item 1(c) of Article 4 of the Basel Convention.

[4] Defined at item 2(a) of the Schedule to the Amendment Notice as “the national department responsible for the environment for the consideration of applications for consent for the transboundary movement of waste in South Africa“.

[5] Defined at item 2(g) of the Schedule to the Amendment Notice as “any movement of waste from an area under the national jurisdiction of one state to or through an area under the national jurisdiction of another state or through an area not under the national jurisdiction of any state, provided at least two states are involved in the movement“.

[6] Defined at item 2(b) of the Schedule to the Amendment Notice as “written authorisation prior to import, transit or export of waste, issued by the competent authority“.

[7] Defined in section 1 of the Waste Act as “waste that does not pose an immediate hazard or threat to health or to the environment“, including domestic waste, building and demolition waste, business waste, inert waste, or “any waste classified as non-hazardous waste” in terms of the regulations made under section 69 of the Waste Act.

[8] Defined at item 2(d) of the Schedule to the Amendment Notice, read together with the Waste Act, as “any waste that contains organic or inorganic elements or compounds that may, owing to the inherent physical, chemical or toxicological characteristics of that waste, have a detrimental impact on health and the environment“, taking into account South Africa’s obligations in terms of international agreements.

[9] Defined at item 2(e) of the Schedule to the Amendment Notice as “waste that is unsorted“.

[10] Defined at item 2(f) of the Schedule to the Amendment Notice as general waste, as defined in the Waste Act, taking into account South Africa’s obligations in terms of international agreements.

[11] A list of Category Y48 plastic waste is set out in Annexure 4 of the Amendment Notice.

[12] Defined in regulation 1 of the Regulations as “a document which is issued by the waste treatment facility confirming the acceptance and management of the waste“. [1] No indication has to date been provided as to what would constitute an “appropriate fine” for purposes of the Regulations.

[13] No indication has to date been provided as to what would constitute an “appropriate fine” for purposes of the Regulations.

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Introduction

It has been over a year since the Financial Action Task Force (“FATF“) announced that South Africa had been added to the FATF’s greylist for failing to timeously implement the required remedial actions set out in the FAFT’s “Anti-money laundering and counter‑terrorist financing measures: South Africa – Mutual Evaluation Report” (“FATF ME Report“).[1] The FATF ME Report sets out the following: (i) the anti-money laundering and counter-terrorist financing (“AML/ CFT“) measures that South Africa had in place during the period of assessment (being 22 October 2019 to 12 November 2019) (“Period of Assessment“), (ii) the level of South Africa’s compliance with the FATF’s 40 Recommendations set out in FATF ME Report, (iii) the FATF’s analysis of South Africa’s AML/ CFT system and (iv) the FATF’s recommendations on the steps that South Africa should take to strengthen its AML/ CFT compliance and align same to the FATF’s global standards.

The FATF, in relation to South Africa’s AML/ CFT compliance status, noted that ‘virtual assets’ may be used to facilitate fraud, particularly cyber/ digital banking fraud in South Africa.[2] One of the main focuses of the FATF ME Report was therefore to ensure that South Africa, inter alia, assessed the risks related to the use of new technologies (such as ‘virtual assets’), and imposed a comprehensive set of legislative requirements in relation to the use of ‘virtual asset service providers’ and ‘virtual assets’ (“Recommendation 15“). The FATF, in the FATF ME Report, rated South Africa as non‑compliant with Recommendation 15 for the Period of Assessment due to South Africa’s deficiencies with its AML/ CFT compliance status.

South Africa’s response to the FATF ME Report

Following the FATF ME Report, the FATF published its guideline titled “Virtual Assets and Virtual Asset Service Providers – Updated Guidance for a Risk-Based Approach” (“Updated Guidance“),[3] which revised Recommendation 15 and now requires countries, such as South Africa, to (i) manage and mitigate the risks emerging from ‘virtual assets’, (ii) regulate ‘virtual asset service providers’ for AML/ CFT purposes, (iii) enact a regulatory framework to license, register and regulate ‘virtual asset service providers’ and (iv) establish effective systems to monitor all ‘virtual asset service providers’ compliance with the measures required under Recommendation 15.[4]

In response to the FATF greylisting and Updated Guidance, South Africa made several amendments to its regulatory framework relating to ‘crypto assets’[5] to strengthen South Africa’s AML/ CFT compliance. On 19 October 2022, the Financial Sector Conduct Authority (“FSCA“) published General Notice 1350 of 2022 (“Declaration Notice“), in which ‘crypto assets’ were declared a financial product under the Financial Advisory and Intermediary Services Act No. 37 of 2002 (“FAIS Act“). The FSCA published its “Policy Document Supporting the Declaration of a Crypto Asset as a Financial Product under the Financial Advisory and Intermediary Services Act” (“FSCA Policy Document“), which emphasised the FSCA’s view that crypto asset related activities may pose a significant risk to financial customers. The purpose of the FSCA Policy Document is to contextualise the Declaration Notice and provide clarity on the effect, scope and licensing of crypto asset service providers (“CASPs“). In terms of the FSCA Policy, CASPs must, inter alia, be authorised under section 8 of the FAIS Act as a financial service provider (“FSP“) or be appointed as a representative of an authorised FSP under section 13 of the FAIS Act and comply with the requirements of the FAIS Act and its subordinate legislation which regulates certain financial advisory and intermediary services.[6] The FSCA announced that the first FSP licenses to CASPs will likely be issued early in 2024.

Before the Declaration Notice and the FSCA Policy Document, neither CASPs nor crypto assets were specifically regulated by any financial sector legislation and regulations, which meant that financial transparency was limited and customer protection measures were frequently absent from interactions between the CASPs and their customers (i.e. usually being members of the public).

Legislative amendments in response to the Updated Guidance

The Minister of Finance, Enoch Godongwana, amended the FIC Act to include CASPs as ‘accountable institutions’.[7] Chapter 3 of the FIC Act specifically deals with money laundering, financing of terrorist and related activities and financial sanctions control measures and makes provision for (i) enhanced customer due diligence to prevent accountable institutions from engaging in transactions with anonymous clients, (ii) accountable institutions to keep a record of its customer due diligence records and a record of all its transactions, (iii) accountable institutions to report on its customer due diligence to the Financial Intelligence Centre (“FIC“), and (iv) the board of directors and/ or senior management of an accountable institution to ensure that its employees comply with anti-money laundering and counter‑terrorist financing compliance.

The FATF in its publication titled “Anti-money laundering and counter-terrorist financing measures: South Africa – Follow-up Report & Technical Compliance Re-Rating“, published in November 2023 (“FATF Follow-Up Report“) states that by undertaking the aforementioned actions, South Africa has demonstrated that it is willing to take action to identify unauthorised CASPs and has since re-rated South Africa as partially compliant with Recommendation 15.

Following the various amendments to the regulatory framework, CASPs and crypto assets are now regulated under the FAIS Act (pursuant to the Declaration Notice) and the FIC Act. On 11 May 2023, the FSCA published notice 25 of 2023 (“Exemption Notice“) in terms of which CASPs were, inter alia, temporarily exempt from certain requirements of the FAIS Act such as the Part 4 of Chapter 3 of the Determination of Fit and Proper Requirements for Financial Service Providers, 2017, meaning that, not all the provisions of the financial regulatory framework apply to CASPs.

The road to full compliance with Recommendation 15

Whilst South Africa has taken the legislative steps described above to regulate crypto assets and CASPs, the declaration of a ‘crypto asset’ as a ‘financial product’ under the FAIS Act by the FSCA was intended to be an “interim step to mitigate conduct and consumer protection risks in the crypto asset environment, pending the anticipated Conduct of Financial Institutions (COFI) Bill framework and the broader policy discussions taking place at the time through the [Crypto Assets Regulatory Working Group]”.[8] In order to improve South Africa’s current Recommendation 15 rating from ‘partially compliant’[9] to ‘compliant’, the South African Regulators could, inter alia, –

• update and finalise the Conduct of Financial Institutions Bill (the last draft of which was published on or about 29 September 2020) to (i) specifically provide for financial services that are related to crypto assets, and the licensing thereof and (ii) regulate new technologies that are currently emerging in the financial sector;[10]

• take steps to (i) identify CASPs to the South African public who do not hold a valid FSP license (“FSP License“) under section 8 of the FAIS Act and (ii) penalise all persons or entities who provide advice and/ or intermediary services in respect of crypto assets without a valid FSP License;

• take steps to (i) identify and institute administrative sanctions against all persons or entities who are listed as accountable institutions in Schedule 1 of the FIC Act and who do not comply with their statutory obligations under the FIC Act (by, for example, not developing, maintaining or implementing a programme for anti-money laundering, counterterrorist financing and proliferation financing risk management and compliance (known as a Risk Management and Compliance Programme) as prescribed by section 42 of the FIC Act), and (ii) supervise and monitor an accountable institution’s compliance with the provisions of the FIC Act;[11]

• update and finalise the draft Joint Standard published under the Financial Sector Regulation Act relating to the cybersecurity and cyber resilience requirements, published by the FSCA and Prudential Authority in December 2021 (“Draft Joint Standard“), which, sets out inter alia, the minimum requirements for financial institutions that make use of cryptography. The Draft Joint Standard requires ‘financial institutions’[12] to establish and adopt cryptographic key management policies, standards and procedures that comply with the Draft Joint Standard and well-established international standards; and

• issue licenses to CASPs.

The FSCA, in their presentation titled “Crypto Asset Market Study” dated 30 November 2023 and presented by Awelani Rahulani and Keith Sabilika (“FSCA Presentation“), confirmed that the FSCA (i) is of the view that “crypto asset related activities pose significant risks to financial customers” and (ii) acknowledges that whilst a legal framework is in place to regulate FSPs who provide advice and intermediary services on financial products such as crypto assets, the current legal framework is “not necessarily tailored around Crypto Assets Service Providers (CASPs), and the specific risks posed”. The FSCA has also expressed the view that South Africa must “develop bespoke and/or refine further the existing framework to ensure that it is fit for purpose and addresses Crypto Asset specific risk, without stifling innovation”.

During its Crypto Asset Market Study, the FSCA identified a number of risks. One of the risks identified relates to the outsourcing of certain services (such as’ Know your Client’ and ‘Anti-Money Laundering’ procedures, cyber security measures and protections and blockchain monitoring services) by CASPs to third parties. The FSCA is of the view that if a CASP outsources certain activities (such as those mentioned above) to third parties, then those third parties must also be licenced under and regulated by the FAIS Act in order to mitigate “the risk of regulatory arbitrage”.[13] The regulation of outsourcing arrangements entered into by CASPs with third parties by the FSCA (by developing the existing legal framework) is one of the ways in which South Africa can balance compliance of CASPs with local regulations and ensure that the CASPs clients’ information remains confidential.

Conclusion

Even though South Africa has been upgraded to a partially compliant rating in regard to Recommendation 15, the regulatory authorities in South Africa still have several necessary steps to take in order to align the regulatory framework relating to CASPs to comply with Recommendation 15. The manner in which this will be achieved and the speed at which the required steps will be taken by the regulatory authorities remains to be seen.

[1]        “Anti-money laundering and counter-terrorist financing Measures: South Africa – Mutual Evaluation Report” published by the FATF in October 2021

[2]        FATF ME Report p. 18

[3]        “Virtual Assets and Virtual Asset Service Providers – Updated Guidance for a Risk-Based Approach” published by the FATF in October 2021

[4]        “Virtual Assets and Virtual Asset Service Providers – Updated Guidance for a Risk-Based Approach” p. 55

[5]        General Notice 1350 of 2022, published by the Financial Sector Conduct Authority on 19 October 2022, defines a “crypto assets” as “a digital representation of value that (i) is not issued by a central bank, but is capable of being traded, transferred or stored electronically by natural and legal persons for the purpose of payment, investment and other forms of utility, (ii) applies to cryptographic techniques, and (iii) uses distributed ledger technology“

[6]        FSCA Policy Document p. 7

[7]        Government Notice 2800 of 20 November 2022 in Government Gazette 47596. “Accountable institutions” are defined in section 1 of the FIC Act as “a person referred to in Schedule 1 [of the FIC Act]“

[8]        The Financial Sector Conduct Authority’s publication titled “South Africa’s Crypto Assets Market Study” published on 30 November 2023 p.9

[9]        The Financial Action Task Force’s publication titled “Anti-money laundering and counter-terrorist financing measures: South Africa – Follow-up Report & Technical Compliance Re-Rating” dated November 2023 p.24, para. (l)

[10]      The Financial Sector Conduct Authority’s publication titled “South Africa’s Crypto Assets Market Study” published on 30 November 2023 p.9

[11]      The Financial Action Task Force’s publication titled “Anti-money laundering and counter-terrorist financing measures: South Africa – Follow-up Report & Technical Compliance Re-Rating” dated November 2023 p.23, paras (e) and (f)

[12]      “Financial Institution” is defined in the Draft Joint Standard as including certain categories of FSPs

[13]      The Financial Sector Conduct Authority’s publication titled “South Africa’s Crypto Assets Market Study” published on 30 November 2023 p.19

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