Case Comments: The Institution of Curatorship of a Bank in Terms of Section 69 of the Banks Act 94 of 1990—A Rare Decision

• Jurisdiction: South Africa
• Published date: 25 May 2019
• Author: W G Schulze
• Date: 25 May 2019
• Pages: 428-437

428



(1999) 11 SA Merc LJ

The Institution of Curatorship of a Bank

in Terms of Section 69 of the Banks Act 94

of 1990—A Rare Decision

WG SCHULZE

University of South Africa

1 Introduction

Section 69 of the Banks Act 94 of 1990 provides for the institution of

curatorship of a bank.

The predecessor of s 69 was contained in s 40 of the Banks Act 23 of

1965. Section 40 of the Banks Act of 1965 provided for the institution

of curatorship by the Minister of Finance in circumstances where the

banking institution was in financial difficulties. In terms of s 40

the Minster had to be of the opinion that the curatorship was desirable

in the public interest, and he had to consult with the banking institution

concerned. Finally, the banking institution had to give written consent

for the appointment of the curator (for a discussion of the provisions

contained in s 40, see Nigel Willis

Banking in South African Law

(1981) at

94-96). From the wording of s 40 it was clear that the intention was to

vest the Minister with all the powers and duties of a court, except for the

power to direct that legal proceedings or execution be stayed in respect of

the bank under curatorship. This power was apparently reserved for a

court (see

Ex Parte Registrar of Banks

1968 (3) SA 300 (C) at 301H). The

original s 40 was fairly radically amended by s 1 of the Financial

Institutions Amendment Act 94 of 1977. The amended s 40(1) further

made reference to the appropriate provisions in the Companies Act 61 of

1973, and no longer referred to the provisions of the Companies Act 46

of 1926.

(1999) 11 SA Merc LJ 428

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