Excerpt: Can the Minister of Finance lawfully repeal South Africa’s 1961 Exchange Control Regulations and replace them with an entirely new Capital Flow Management framework? LFN believes this is not merely a technical drafting issue, but a fundamental question of constitutional legality and the rule of law. In its formal submission to National Treasury, LFN raises concerns that section 9(1) of the Currency and Exchanges Act, read together with the Interpretation Act and confirmed by the Constitutional Court, vests the regulation-making power in the President, not the Minister. Before South Africa embarks on a new era of exchange control, the public deserves a clear answer: who really has the legal authority to rewrite the rules?
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Imagine buying a house.
You sign every document. The estate agent is happy. The bank is happy. The municipality is happy.
Then, months later, someone quietly points out that the person who signed the transfer documents never actually had the authority to do so.
Suddenly, the entire transaction is called into question.
Not because the paperwork looked untidy.
Not because someone forgot a date.
But because the wrong person exercised the power.
That, in simple terms, is the question Liberty Fighters Network (LFN) has placed before National Treasury regarding the proposed Capital Flow Management Regulations, 2026, intended to replace South Africa’s Exchange Control Regulations that have governed the movement of money across our borders for more than six decades.
It is not about whether exchange control is good or bad
Many people immediately assume that questioning these draft regulations means opposing exchange control altogether.
Not so.
Whether South Africa should have exchange control, relax it, tighten it, or modernise it is a policy debate.
Our concern is far more fundamental.
Who has the legal authority to make those rules in the first place?
Because if the wrong person makes them, every regulation that follows may rest upon unstable legal foundations.
A forgotten section of a ninety-three-year-old Act
The Currency and Exchanges Act dates back to 1933.
Section 9(1) authorises the Governor-General to make regulations concerning currency, banking and exchanges.
Modern South Africa no longer has a Governor-General.
The Interpretation Act, 1957 tells us exactly how to read those older statutes. The office of Governor-General became that of the State President and, under our constitutional order, the President of the Republic.
The existing Exchange Control Regulations of 1961 followed precisely that route.
They were made by the State President.
Not by the Minister of Finance.
Even Treasury has said so before
This is where matters become particularly interesting.
LFN is presently involved in litigation concerning the constitutional validity of aspects of the Exchange Control system.
In those proceedings, the Acting Director-General of National Treasury himself confirmed that the Exchange Control Regulations were made by the State President under section 9 of the Act.
The Constitutional Court has also dealt extensively with section 9(1) in the landmark Shuttleworth judgment.
Again, the Court recognised that it is the President who is entrusted with the regulation-making authority under the Act.
The Minister’s role comes afterwards.
The Minister may administer.
The Minister may implement.
The Minister may impose conditions authorised by the Regulations.
But that is not necessarily the same as possessing the original legislative authority to create or repeal the Regulations themselves.
Then came the draft Regulations…
The proposed Capital Flow Management Regulations contain an interesting statement.
They simply record that the Minister of Finance, in terms of section 9(1), has made the Regulations.
That sentence immediately caught our attention.
Because section 9(1) does not mention the Minister.
It refers to the Governor-General.
Or, interpreted today, the President.
So where did the Minister obtain that authority?
That is not a political question.
It is a legal one.
There may be another twist
During our research, we also identified Proclamation Notice 290 of 2025, which appears to transfer the administration of the Currency and Exchanges Act, together with certain presidential powers, to the Minister responsible for Finance.
Does that solve the problem?
Perhaps.
Perhaps not.
The point is this:
The draft Regulations never tell the public that this Proclamation is being relied upon.
Instead, they simply state that the Minister acts under section 9(1).
That omission matters.
Public participation is not meant to be a guessing game.
Citizens are entitled to know the complete legal chain upon which government relies before being asked to comment.
Why legality matters
The rule of law is not merely about reaching the right destination.
It is about travelling the correct road.
Imagine if Parliament passed legislation signed by a Cabinet Minister instead of the President.
Or if a municipal manager suddenly decided to issue Acts of Parliament.
Nobody would accept that simply because the outcome appeared sensible.
Authority matters.
The law gives powers to particular offices for a reason.
When government itself begins treating those distinctions casually, the rule of law slowly begins to unravel.
This affects every South African
Exchange control is often dismissed as something that only concerns wealthy investors.
It does not.
These regulations influence foreign investments, retirement savings, inheritances, business transactions, international trade, cryptocurrency, emigrants, exporters, importers and, ultimately, confidence in South Africa’s financial system.
If the legal foundation is uncertain, uncertainty spreads through the entire system.
What LFN has done
Yesterday, 30 June 2026, being the final day for public comments, LFN submitted detailed legal comments focusing on this threshold issue alone.
We deliberately avoided debating the policy merits.
Instead, we asked a simple question:
Who actually has the legal authority to repeal one of South Africa’s oldest regulatory systems and replace it with an entirely new one?
Until that question is answered transparently and convincingly, the legality of the draft Regulations remains open to serious scrutiny.
This is how constitutional democracy should work
Government does not become stronger by avoiding legal questions.
It becomes stronger by answering them.
Healthy democracies welcome robust public participation.
They encourage citizens to read legislation, ask difficult questions and insist that those entrusted with public power remain within the limits imposed by law.
That is exactly what Liberty Fighters Network intends to continue doing.
Not because we oppose government.
But because the rule of law applies equally to government itself.
Today it is exchange control.
Tomorrow it will be another regulation affecting every South African.
Liberty is seldom lost in one dramatic moment.
More often, it is surrendered quietly, one unchecked exercise of public power at a time.
LFN intends to ensure that does not happen.
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