SOMETIMES subtleties matter, such as the detail of last week’s Supreme Court of Appeal judgment on Mark Shuttleworth’s case against exchange controls. Everyone has treated it as a victory for Shuttleworth, but in fact it contained within it a major defeat. Not only for him, but for every South African.

Shuttleworth was the model plaintiff for an attack on the constitutionality of exchange control. The attack worked in part in the High Court, which found that controls as they stand violate a number of rights, including freedom of expression (because controls prevent us from buying foreign media), and privacy (because they force you to disclose what you may be buying, including things online you probably do not want anyone knowing).

The court also found that certain elements of exchange control violate every citizen’s right "to choose their trade, occupation or profession freely". It instructed the government to amend exchange controls so as to not violate citizen’s rights.

But the president, minister of finance and Reserve Bank appealed against this finding, and the Supreme Court of Appeal ruled in their favour. The court seems to believe Shuttleworth had no genuine interest in challenging the constitutionality of exchange controls and was only after the R250m he had paid as a levy to the Reserve Bank when he took his money out of SA.

The Supreme Court of Appeal did not make any finding on whether exchange controls do violate rights. Rather, it said the High Court should not have made such a finding because the rights allegedly violated were beyond the facts of the Shuttleworth case. In other words, because Shuttleworth’s rights to privacy, freedom of expression, and so on, had not been violated, the court should not have made a finding on whether exchange controls violate rights.

The only factual matter that was germane was the levy imposed on Shuttleworth, and that the Supreme Court of Appeal found was indeed unconstitutional. The Reserve Bank has to give it back to Shuttleworth with interest. He has said he will put it into a trust to fund constitutional cases brought by ordinary citizens. It is unfortunate that he lost the rest of the case. Exchange controls violate the rights of thousands of South Africans every day, but each violation is too small to warrant expensive litigation.

Our rights are violated when we are unable to make online purchases or send money to family overseas because of the regulations. Our rights are violated when businesses are unable to efficiently buy and sell to foreign customers and suppliers. All our rights are violated when we are forced to deal with the banking oligopoly that the regulations have created. Shuttleworth was doing us all a favour.

As Shuttleworth has pointed out in an online blog, SA has the highest costs of cross-border transactions in the world. A World Bank study found up to 25% of the money being transferred in small remittances to Mozambique and Zambia — a common destination of transfers for migrant labour — is absorbed by fees.

Those costs are thanks to exchange controls. Vastly more costs are faced by businesses that try to manage international operations, given the countless forms that must be filled out and bank charges paid.

Shuttleworth has said he and his lawyers are considering a Constitutional Court challenge.

I hope his team can find good legal grounds to do so.

As Shuttleworth puts it, "I pursue this case in the hope that the next generation of South Africans who want to build small but global operations will be able to do so without leaving the country."

Perhaps the Constitutional Court justices will support his ambition where the Supreme Court of Appeal has failed to.

Our rights are violated when we are unable to make online purchases or send money to family overseas because of the regulations. Our rights are violated when businesses are unable to efficiently buy and sell to foreign customers and suppliers. All our rights are violated when we are forced to deal with the banking oligopoly that the regulations have created.

It must have been a difficult decision for Nedbank to exercise its option to subscribe for 20% of West African banking group Ecobank, which it had to do before the option expires next month. There are good reasons for caution — Ecobank was sucked into a governance scandal last year, pitching directors and management against each other.

Also, Ecobank undertook a risky deal three years ago in buying Nigeria’s Oceanic Bank, a fraud-plagued mess that had already burnt Nedbank parent Old Mutual. Nedbank is wisely cautious in delving into an operation with such red flags.

Nedbank must have calculated that the risk of letting the opportunity go was higher than the risk of buying in, so it has done the deal.

It now finds itself on the share register alongside the Public Investment Corporation (PIC), which bought 20% in 2012, and Qatar National Bank, which moved swiftly on the business last month to build up a 23.5% stake. Both of those will be diluted by the Nedbank subscription, which will, by my calculations, leave Nedbank the largest shareholder.

The future, though, will be interesting.

The Qataris clearly have ambitions of their own for Ecobank, which may clash with Nedbank’s, leaving the PIC as kingmaker.It must have been a difficult decision for Nedbank to exercise its option to subscribe for 20% of West African banking group Ecobank, which it had to do before the option expires next month. There are good reasons for caution — Ecobank was sucked into a governance scandal last year, pitching directors and management against each other.

Also, Ecobank undertook a risky deal three years ago in buying Nigeria’s Oceanic Bank, a fraud-plagued mess that had already burnt Nedbank parent Old Mutual. Nedbank is wisely cautious in delving into an operation with such red flags.

Nedbank must have calculated that the risk of letting the opportunity go was higher than the risk of buying in, so it has done the deal.

It now finds itself on the share register alongside the Public Investment Corporation (PIC), which bought 20% in 2012, and Qatar National Bank, which moved swiftly on the business last month to build up a 23.5% stake. Both of those will be diluted by the Nedbank subscription, which will, by my calculations, leave Nedbank the largest shareholder.

The future, though, will be interesting.

The Qataris clearly have ambitions of their own for Ecobank, which may clash with Nedbank’s, leaving the PIC as kingmaker.

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