Primary briefing · Gazette
high impact 54520 · 2026-04-17
Crypto-assets under exchange control — Treasury publishes draft Capital Flow Management Regulations, COFI Bill, and AML/CFT Bill
Comment closes
17 May 2026
Government Gazette 54520 carries three major National Treasury items. The Draft Capital Flow Management Regulations 2026 bring crypto-assets within the exchange control framework for the first time, imposing compliance obligations on crypto-asset service providers and aligning South Africa with OECD/FATF recommendations. The Conduct of Financial Institutions (COFI) Bill 2026 introduces a consolidated, comprehensive regulatory framework for the conduct of licensed financial institutions, supervised entities, and representatives. The General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Bill 2026 expands FIC Act powers, strengthens Companies Act beneficial ownership obligations, and broadens NPO oversight. All three items were published or introduced on the same day, with the draft regulations carrying a 30-day public comment deadline.
Who is affected
Crypto-asset service providers and virtual asset platformsBanks, insurers, and other licensed financial institutionsFinancial services compliance and regulatory teamsNonprofit organisations subject to NPO Act oversightCompanies with beneficial ownership reporting obligationsExchange control and cross-border transaction practitioners What this means for practitioners
Submit written comments on the Draft Capital Flow Management Regulations to CommentDraftRegulations@treasury.gov.za by approximately 17 May 2026 (30 days from publication)
Assess whether crypto-asset operations or service offerings will fall within the new exchange control framework and begin gap analyses
Brief financial institution clients on the COFI Bill's consolidated conduct regulation model and track its parliamentary progress
Review the AML/CFT Amendment Bill for expanded beneficial ownership obligations under the Companies Act and enhanced FIC Act powers
NPO clients should be alerted to the broadened oversight provisions in the AML/CFT Bill
Primary briefing · Judgment
high impact Supreme Court of Appeal · 2026-04-17
Makofane William Mohlala v MEC for Transport, Limpopo and Others
Mr Mohlala was detained at Dennilton Police Station for approximately 48 hours following a lawful arrest. He was never informed of his right to apply for police bail under s 59 of the Criminal Procedure Act, and the police did not consider his release. He sued the Minister of Police for unlawful detention. Both the magistrate's court and the high court dismissed his claim, holding that he bore the onus of proving his detention was unlawful.
The court held: The majority held that every interference with physical liberty is prima facie unlawful, and once the claimant establishes deprivation of liberty the burden falls on the detaining authority to justify it. The police's failure to inform Mr Mohlala of his right to police bail and failure to consider his release rendered the continued detention unlawful. The lower courts erred in shifting the onus onto the detainee. The appeal was upheld, the Minister of Police was held liable, and R80,000 in general damages was awarded. A dissent by Unterhalter JA held that the failure to observe the duty of consideration was itself unlawful but did not render the detention unlawful, as the statutory right to request police bail does not equate to a right of release.
Legal impact: Develops the burden-of-proof framework in unlawful detention claims following lawful arrest, building on Syce and Zealand. Establishes that police non-compliance with s 59 bail obligations — specifically failing to inform detainees and failing to consider release — can render continued detention unlawful and shift the justification burden to the state. The dissent's competing analysis (that the infringement of the bail right does not make the detention itself unlawful) signals potential Constitutional Court consideration and creates doctrinal tension. The R80,000 quantum for approximately 48 hours in poor conditions provides useful damages guidance.
Who is affected
State liability and delict practitionersSAPS and police operational commandersState attorneys defending unlawful detention claimsCriminal justice and constitutional rights practitionersIndividuals detained following lawful arrest What this means for practitioners
State liability practitioners should update advice on burden of proof in unlawful detention claims to reflect the majority's framework
SAPS clients must ensure operational procedures require officers to inform detainees of s 59 bail rights as soon as reasonably possible after arrest and to actively consider release
Monitor for potential Constitutional Court application given the dissent's competing analysis
Use the R80,000 quantum as a benchmark when advising on or settling unlawful detention claims of similar duration and conditions
Note the SCA's warning against inflated damages claims — practitioners should make realistic quantum assessments