Unfortunately the President has published an amendment to the Exchange Control Regulations this month to provide for an expansive new definition of "capital" to include all forms of intellectual property. This means that Reserve Bank approval is again required before you can sell IP ownership to a foreign person or corporation.
However, for those interested in democracy and law, there is a question mark over the validity of the amendment to the regulation...
In terms of section 85 of the Constitution, the President and other members of the Cabinet have executive powers, essentially the power to implement legislation. In terms of section 44 of the Constitution, the power to make legislation sits with the National Assembly (i.e. parliament). The Courts, in turn, have the power to interpret legislation.
This is the “doctrine of separation of powers”.
Section 41 of the Constitution says that all spheres of government must exercise their powers in a manner that does not encroach on the integrity of another sphere.
The Currency and Exchanges Act of 1933 is the historical source of the President's present day power to make regulations bearing on “currency, banking or exchanges”. However, whether inserting a broad definition of “capital” into the Exchange Control regulations should be viewed as a new regulation for the purposes of implementing an existing law, or making new law, is a debatable point that the Constitutional Court could be called upon to decide. The very broad powers granted in 1933 might not stand up to modern constitutional scrutiny.
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