EVOLUCIÓN DE LA MATRÍCULA EN LAS UNIVERSIDADES DEL SUE

The majority of the complaints in the South African financial sector are for long-term and short-term insurance. Against this background, on-going efforts to strengthen the oversight of market conduct abuses in both sectors are of utmost importance. South Africa is committed to the highest standard for regulating the financial sector.assist the South African government in advocating and developing a regulatory regime for Islamic finance.330

Islamic financial products as compared to its conventional financial counterpart identified dissimilarities that exist between Islamic and conventional finance. The functions of both these institutions are similar in nature, the practice and methods of conveyance and the discharge of its

326 _{Accountable institutions are listed on schedule 1 of the FICA Act as amended by} Government Notice 1104 of 2011, published in Government Gazette 33781 of 26 (2010)

327 _{Reportable institutions are defined in s 1 of the FICA Act as those who are listed in} schedule 3 of FICA

328 _{Section 28 of FICA makes it obligatory for all accountable institutions and reporting} institutions to report cash transactions above the prescribed limit. Failure to comply with the provisions of this section is an offence and is punishable with imprisonment for a period not exceeding 15 years or to a fine not exceeding R10 000 000

329 _{Section 30 of FICA}

102 service are in stark contrast between the Islamic banking and that of the conventional banking institutions.

South Africa implements a form of secularism that does not depend on an inflexible disassociation between religion and state. Instead, it encourages collaboration between the two. In the next chapter I will explore ways in which a secular state can respect the South African minority Muslim community’s freedom of religion, acceptance of Islamic contracts and difficulties that may arise. The next chapter emphasizes on the various measures taken by regulators to develop and promote the Islamic Industry in South Africa.

103 CHAPTER FIVE: THE RECOGNITION, ACCOMMODATION AND

INCORPORATION OF ISLAMIC LAW IN SOUTH AFRICA

5.1 Introduction

South Africa has a culturally diverse society, in which different religious and cultural groups, such as Muslims and Hindus live according to their own tradition.331 _{The discussion of customary law is noteworthy in this chapter}

because it helps the reader to become familiar with the recognition of religious customs such as Islam into the South African legal system. This chapter presents the recognition of customary law in South Africa and the difficulties and challenges faced by the judiciary when applying customary law. The importance and adoption of customary law in South Africa has been made clear by the Constitutional Court Case law. In light of this, the purpose of the chapter is to assess the use of precedents and doctrines for the interpretation of international law.

The recognition of the cultural diversity of South Africa provided for the enactment of legislation recognising systems based on religion and culture. This legislative recognition must be consistent with the Bill of Rights and other provisions of the Constitution. The chapter places emphasis on the legal requirement of the right to freedom of religion and Islamic law in South Africa. This right is enshrined in the Constitution in terms of Section 9, the equality clause. This section prohibits unfair discrimination on various grounds including religion. The framework for the discussion in this chapter is South Africa's widely acclaimed Constitution, the centrepiece of which is a fully justiciable Bill of Rights protecting, inter alia, the freedom to pursue cultures and religions of choice. The leading cases of Christian Education, South Africa v Minister of Education332 _{and Prince V Cape Law Society}333 _are

331_{Rautenbach C “Deep Legal Pluralism in South Africa: Judicial accommodation of Non-State} law” No 60 (2010)

104 discussed in this chapter to illustrate that the rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill. Finally, what is regarded as a relevant provision of the Bill of Rights, which impacts on the law of contract and which will be considered in the section that follows is, to what degree foreign law influences the South African courts?

Section 39 of the Constitution provides that, when interpreting the Bill of Rights, courts may consider international law and foreign law. This is significant in finding answers to the focal point of this thesis. In some important case334 _{the Constitutional Court relied heavily on foreign law when}

interpreting the Bill of rights and developing the common law whilst some judges fear that when receiving foreign law, such law may come from different social background and environment.

The current legal framework for dispute resolution in the Islamic banking and finance industry in South Africa may not adequately serve the purpose for which the financial institutions were set up. This chapter considers some of the challenges associated with Islamic products and services, in relation to their impact on recognition, accommodation and conflict faced by the South African judiciary. In South Africa, there have been significant developments with Islamic financial services since the tax proposals were announced in the year 2010. The sector has been boosted by the government’s efforts to accommodate its products and services in financial regulation, with a view to South Africa becoming the Islamic finance hub for sub-Saharan Africa. 335_The

introduction of legislation dealing with Islamic finance has been inserted in the 333 _{2002 (2) SA 794; 2002 (3) BCLR 231}

334 _{Qozeleni v Minister of Law and Order and Another 1994 (2) SALR 340 at 348; Park-Ross} and Another v The Director, Office of Serious Economic Offences 1995 (2) BCLR 198 (C) 208-209; See especially, the remarks of Kriegler RJ in Bernstein v Bester 1996 4 BCLR 449 (CC); 1996 (2) SA (CC) Para 133

105 Taxation Laws Amendment Act, 2010. The amendments to the Income Tax Act will be examined in this chapter to illustrate the accommodation of tax neutrality between Islamic and conventional finance in South Africa.

The judgement in Lodhi 5 Properties Investments CC v FirstRand Bank Limited336 _{(hereinafter referred to as the Lodhi case) raises important issues}

regarding the enforceability of Islamic finance law and therefore merits discussion in this chapter, in the context of the continuing growth and expansion of Islamic banking and finance law in South Africa.