The impact of Section 34 of the constitution of the Republic of South Africa, 1996 on banking law

Abstract: The dissertation explores the impact of section 34 of the constitution of the Republic of South Africa, 1996 on certain aspects of banking law. During parliamentary sovereignty, the parliament and the executive could enact legislation ousting the jurisdiction of courts to adjudicate public-administration matters. However, the constitution in section 34 has brought changes to our banking law by compelling the alteration of established statutory or common law legal principles. The impact brought by section 34 of the constitution on banking law is explored by paying special focus to the law in potential conflict with section 34 of the constitution to see how the courts have addressed the issue of non-compliance with section 34 of the constitution. The law in potential conflict with section 34 of the constitution relates to mainly to manners in which courts could be by-passed by banks in the protection of their interests. Against this background this dissertation discusses and analyses case law in this regard which has contributed towards the development of both our common law and statutory law some of which was in conflict with section 34 of the constitution by limiting unfairly the right of access to court guaranteed by section 34 of the constitution. The following five topics are dealt with specifically: section 38(2) of the Northwest Agricultural Bank Act 14 of 1981; sections 34(3) (b) to (7), (9) and (10) and 55(2) (b) to (d) of the Land Bank Act 13 of 1944; Perfecting clauses in notarial bonds of movables without court intervention; Rule 8 of the Uniform Rules of the High Court; and section 2 of the Vexatious Proceedings Act 3 of 1956.LL.M. (Commercial Law