Retail banks and the code of banking practice under the market conduct regime in South Africa

Abstract: The Twin Peaks model of regulation brought about significant changes to South Africa’s financial sector landscape. The new regulatory regime sought to separate financial regulation into prudential regulation and market conduct regulation. One of the newly added responsibilities of the market conduct regulator is the regulation and supervision of banks. This effectively means that banks will be subjected to Treating Customers Fairly principles when interacting with the customers. Currently one of the key instruments influencing the bank-customer relationship is the Code of Banking Practice. The code applies to personal and small businesses customers. The new market conduct regulation makes it necessary to evaluate the future of the Code of Banking Practice. The dissertation makes an assessment of the code based on a few problematic areas which have been identified, namely set-off and the closing of bank accounts; in addition, the code will be measured against some of the findings made by the World Banking Group in the Retail Banks Diagnostic report. In light of the above-mentioned, this dissertation seeks to answer the question of whether the current Code of Banking Practice will still be relevant under the market conduct regime in South African. Case law and the position taken by the Ombudsman for Banking Services in some instances will be explored in order to answer the question posed above. Lastly, a comparative analysis is made between South Africa and Australia in order to assess what lessons could be learned from foreign jurisdiction.LL.M. (Banking Law