Reflections on the South African Code of Banking Practice : aantekeninge

Abstract

The Code of Banking Practice (hereafter the "code"), which in its current format applies from 1 January 2012, arguably forms one of the most important influences on the modern bank and customer relationship in South Africa. The influence of the code on banking law might, however, be slightly more subtle than that of legislation such as the National Credit Act (34 of 2005 - only if applicable in terms of s 4) and the Consumer Protection Act (68 of 2008 - only if applicable in terms of s 5). This note focuses on the nature and legal status of the code itself, highlights some interesting provisions contained in the code, and considers the influence of decisions and other documents emanating from the office of the Ombudsman for Banking Services (hereafter the "ombudsman"). (A comprehensive discussion of the ombudsman, and of the findings and decisions that can be made, falls outside the scope of this note - see the information and documents at www.obssa.co.za (28-04-2014), including the Terms of Reference (2006) of the ombudsman (hereafter "Terms of Reference"). On the origins and meaning of the word "ombudsman", see Melville "Has ombudsmania reached South Africa? The burgeoning role of ombudsmen in commercial dispute resolution" 2010 SA Merc LJ 50 and Schulze "The South African Banking Adjudicator - a brief overview" 2000 SA Merc LJ 38-39. For the first Banking Code in the United Kingdom, dating from 1992, and its subsequent development, see the rather critical appraisal by Ellinger, Lomnicka and Hare Ellinger's Modern Banking Law (2011) 65 ff. The office of the South African ombudsman was set up in 1997: see "History of the OBS" at www.obssa.co.za and Schulze 38.)