The Exclusion of Supervisory Liability and the Possible Constitutional Rights Issues: A Discussion of Section 65 of the Financial Services Laws General Amendment Act 45 of 2013
In a number of jurisdictions the issue of financial sector supervisory immunity has been associated with unending debate by scholars, the judiciary and policy makers. At the heart of that discussion is the conflict between such immunity and certain fundamental constitutional rights. In South Africa, such debate was spurred by the enactment of section 65 of the Financial Services Laws Amendment Act 45 of 2013 which protects the Financial Sector Conduct Authority from third-party suit. This article argues that in as far as this issue has not been extensively debated and for as long as the conceptual limits of section 65 of the Financial Services Laws Amendment Act have not been tested or constitutionally challenged, it can be concluded that there is a long way to go before congruence between that immunity and human rights can be attained. Further, this article contends that maintaining the status quo where the law seems to give preference to the concept of immunity seems to preserve economic considerations associated with the supervisory function at the expense of the universally accepted right to adjudication. In so far as that seems to be in conflict with issues of social justice, that state of affairs is indefensible. It avers that though noble, the regime ushered by section 65 is associated with unintended and yet far-reaching repercussions that warrant a thoughtful discussion. This debate is timely especially because of late there has been growing scholarship discussing the intersection between human rights, securities and business.
Keywords: FSCA, Human Rights, Financial Sector, Constitution, Immunity, Supervisory Immunity