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Mercantile Law

Prof Michelle Kelly-Louw

Professor in Banking Law

Qualifications:
BIuris LLB LLM LLD (Unisa), DIPLOMA: Insolvency Law and Practice (Aipsa) (UJ)

Contact Details:
Office: Cas van Vuuren Building 6-99
Phone 012 429 8477
e-Mail: kellym@unisa.ac.za

 

Courses taught:
Law of Negotiable Instruments, Intellectual Propery and Competition (MRL302N)
Advanced Bills of Exchange and Cheque Law (LML409W)

Fields of specialisation:
Negotiable Instruments, Banking Law, Insolvency Law, Consumer Credit and the Land Bank Act of 2002

Background: Degrees, Career, Bursaries and Awards

In 1994, at the age of 19, Michelle Kelly-Louw received a three-year bursary from the South African Department of Justice to obtain the BIURIS degree. The bursary entailed that she had to complete the degree through the University of South Africa (Unisa), while working full time at the State Attorney’s Office. After she obtained her BIURIS degree (cum laude) in 1996, she was transferred to the Johannesburg magistrate’s court to act as a district prosecutor. Thereafter, she worked for Nedcor Bank Ltd as a legal adviser. She obtained both her LLB degree and a Diploma in Insolvency Law and Practice in 1998. She joined Unisa in 1999, as a lecturer in the Department of Mercantile Law and in the same year she obtained the LLM degree (cum laude). She also obtained the H Bradlow merit bursary for completing the LLM degree with distinction and for being the best Unisa LLM student. In January 2009, at the age of 33, she obtained her LLD from Unisa. In 2003, at the age of 27, she was promoted to associate professor and on 1 January 2010, at the age of 34, she was promoted to full professor. She lectures the law of negotiable instruments, insolvency law and banking law.

In 2008 she received the Unisa Principal’s Prize for Excellence in Research and in 2009 she also received the Resilience in Research Award.

In August 2010 she received the Department of Science and Technology’s award for Distinguished Young Woman Scientist (Academic Excellence in Social Sciences or Humanities). The award was awarded to her by the Minister of Science and Technology, Mrs Naledi Pandor, at a Gala Dinner. The profiles of all the winners were published in a supplement in the Mail and Guardian Newspaper (20–26 August 2010).

Involvement with the drafting of South African Legislation

Throughout her career Prof Kelly-Louw has been extensively involved in the drafting of legislation. At the age of 26 she was already one of the drafters of the Land Bank Act of 2002. She was a member of the Business South Africa’s Task Group on Insolvency Law who investigated the proposed Unified Insolvency and Business Recovery Bill of 2003. She drafted the consequential amendments contained in the National Credit Act of 2005 and also assisted with the drafting of the regulations to this Act. She was appointed as one of the initial drafters of the new Deeds Registries Act and the Sectional Titles Act. She was also appointed to the panel of legal experts (legislative drafting) for the South African National Treasury as well as to the legal panel of the South African National Roads Agency Limited Property Portfolio. In April 2010 she was appointed by the National Treasury and the Department of Cooperative Governance and Traditional Affairs to be the drafter of the Financial Misconduct Regulations to be issued in terms of the Municipal Finance Management Act 56 of 2003 and the Disciplinary Regulations for Senior Managers to be issued in terms of the Municipal Systems Act 32 of 2000 later during 2010.

International projects and interviews with the media

Based on her involvement with the drafting of the National Credit Act 34 of 2005 she was also asked to take part in an international research project "The National Credit Act and its Regulations in the context of access to finance in South Africa" conducted by the international researcher R Goodwin-Groen. The research was instructed by FinMark Trust, South Africa.

She was interviewed during December 2009 by a reporter for the USA Today Newspaper regarding the National Credit Act 34 of 2005. During the same time she was also interviewed by a journalist for the Indwe, the South Africa Express Airways in-fight magazine in relation to the National Credit Act (see Maike Currie (2010) January Indwe "A Hard Act to Follow" 90–93).

Member of professional bodies, associations, journals

· She is a member of the Association of Insolvency Practitioners of South Africa.
· A board member of the International Association of Consumer Law.
· A member of the editorial advisory board of the International Journal of Law and Management (UK).
· An advisory member of the Journal for Estate Planning Law.

Appointment to the panel of legal experts

She has been appointed to:

· the panel of legal experts (legislative drafting) for the South African National Treasury; and
· the national database for legal professionals for the South African National Roads Agency Limited Property Portfolio.

Presiding Officer: Department of Labour (Compensation Fund)

Appointed as a part time Presiding Officer in terms of section 4(2)(a) of the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA) for the Department of Labour (Compensation Fund).

Published Research

Prof Kelly-Louw has various publications in the fields of insolvency law, banking law and consumer credit law. These include various legal articles (accredited and non-accredited), chapters in books, book reviews and technical research reports. Her accredited article "The apportionment of damages between a negligent collecting bank and a thief of cheques: Does the Apportionment of Damages Act apply?" (2001) 13 SA Merc LJ 509 was referred to with approval in the South African Law Reform Commission’s Report on the Apportionment of Damages Act 34 of 1956 (Project 96, July 2003) (see http://www.saflii.org/za/other/zalc/report/2003/2/). Some of her proposals made in this article were also accepted into the proposed Apportionment of Loss Bill of 2003. She is one of the co-authors of Mars: The Law of Insolvency in South Africa 9th ed (2008). She is also the editor of an international book (Kelly-Louw, M and Nehf, J and Rott, P (eds) The future of consumer credit regulation (2008) Ashgate Publishing Ltd), an author of 2 international books and has published two articles in American journals (both on invitation). In January 2009 she completed her doctoral degree in international banking law ("Selective Legal Aspects of Bank Demand Guarantees"). Her thesis has since been published by VDM Verlag: Germany. Recently she drafted the new chapter on "Consumer Credit Law" for the LexisNexis (Butterworths) series The Law of South Africa (‘LAWSA’). At present she is also working on a book dealing with consumer credit law in South Africa that will be published by Juta and Co Ltd in early 2011.

Books and Chapters in Books

  1. Joubert, WA et al The Law of South Africa (Chapter 3: Sport and Recreation, 111–161) Vol 25 (Part 1) (First Reissue) (2001) Butterworth Publishers Pty Ltd: Durban ISBN 0 409 00355 7.
  2. Bertelsmann, E et al Mars: The law of insolvency in South Africa (Chapter 20: Secured creditors, Chapter 21: Realisation of securities, Chapter 22: Application and distribution of assets, and Chapter 29: The Land Bank and agricultural credit, (94 pages)) 9 ed (2008) Juta & Co Ltd: Cape Town.
  3. Johan Scott (consulting editor) et al Law of commerce in South Africa (Chapter 4: Credit Agreements) (2009) Oxford University Press: Cape Town.
  4. Kelly-Louw, M and Nehf, J and Rott, P (eds) The future of consumer credit regulation, (Chapter 8: Better Consumer Protection Under the Statutory ‘In Duplum’ Rule) (2008) Ashgate Publishing Ltd: Hampshire, England.
  5. Niemi, J and Ramsay, I and Whitford, WC (eds) Consumer credit, debt and bankruptcy: comparative and international perspectives (Chapter 9: "Prevention of overindebtedness and mechanisms for resolving overindebtedness of South African consumers) (2009) Hart Publishing: United States of America.
  6. Kelly-Louw, M Selective legal aspects of bank demand guarantees: The main exceptions to the autonomy principle (Published LLD, University of South Africa) (2009) VDM Verlag: Germany (ISBN-10: 3639209184 ISBN-13: 978-3-639-20918-1).

Accredited Articles

  1. Kelly, M "The presumption protecting a collecting bank in exercising its rights as a holder" (2000) 12 South African Mercantile Law Journal 340.
  2. Kelly, M "Proceeding with transfer where an execution sale took place prior to sequestration or liquidation" (2000) 12 South African Mercantile Law Journal 369.
  3. Kelly, M "The apportionment of damages between a negligent collecting bank and a thief of cheques: Does the Apportionment of Damages Act apply?" (2001) 13 South African Mercantile Law Journal 509–530. (Article was referred to with approval in the SA Law Reform Commission’s Report on the Apportionment of Damages Act 34 of 1956 (Project 96, July 2003. A few of her proposals made in this article were accepted into the proposed Apportionment of Loss Bill of 2003.)
  4. Kelly, M "A transfer in terms of section 54 of the Banks Act as it applies to debtors: Similar to cession or sui generis?" (2001) 13 South African Mercantile Law Journal 552.
  5. Kelly-Louw, M "Investigating the statutory preferential rights the Land Bank requires to fulfil its developmental role (Part I)" (2004) 16 South African Mercantile Law Journal 211. (Prof Kelly-Louw was part of the drafting team of the Land Bank Act 15 of 2002. This article is based on the research report that she had done during the drafting of this Act.)
  6. Kelly-Louw, M "Investigating the statutory preferential rights the Land Bank requires to fulfil its developmental role (Part 2)" (2004) 16 South African Mercantile Law Journal 378. (Prof Kelly-Louw was part of the drafting team of the Land Bank Act 15 of 2002. This article is based on the research report that she had done during the drafting of this Act.)
  7. Kelly-Louw, M "The Land Bank’s decision whether or not to join in the insolvency proceedings" (2004) 18 Speculum Juris 281.
  8. Kelly-Louw, M "The preferential right of the local government or the body corporate above that of the mortgage bondholder during insolvency proceedings" (2004) 18 Speculum Juris 168.
  9. Kelly-Louw, M "Defending the constitutionality of the Land Bank’s exclusion from the insolvency legislation" (2005) 19 Speculum Juris 164.
  10. Kelly-Louw, M "Selling or leasing property? Beware of municipal debts! A note in two parts." (Part I) (2005) 122 South African Law Journal 557.
  11. Kelly-Louw, M "Selling or leasing property? Beware of municipal debts! A note in two parts." (Part II) (2005) 122 South African Law Journal 778.
  12. Kelly-Louw, M "Municipalities v bondholders – Who won?" (2006) 20 Speculum Juris 160.
  13. Kelly-Louw, M "Better consumer protection under the statutory in duplum rule" (2007) 19 South African Mercantile Law Journal 337.
  14. Kelly-Louw, M "The prevention and alleviation of consumer over-indebtedness" (2008) 20 South African Mercantile Law Journal 200.
  15. Kelly-Louw, M "Collection of an arrear advance made under the repealed Land Bank Act" (2008) 21 Speculum Juris 58.
  16. Kelly-Louw, M "The documentary nature of demand guarantees and the doctrine of strict compliance (Part 1)" (2009) 21(3) South African Mercantile Law Journal 306 (also republished in the international collection Byrne, JE & Byrnes, CS (eds) 2010 Annual Review of International Banking Law and Practice (2010)).
  17. Kelly-Louw, M "The documentary nature of demand guarantees and the doctrine of strict compliance (Part 2)" (2009) 21(4) South African Mercantile Law Journal 470 (also republished in the international collection Byrne, JE & Byrnes, CS (eds) 2010 Annual Review of International Banking Law and Practice (2010)).
  18. Kelly-Louw, M "Initiatives of the International Chamber of Commerce to prevent fraudulent calls on demand guarantees and standby letters of credit" (2009) 21(5) South African Mercantile Law Journal.
  19. Kelly-Louw, M "Illegality as an exception to the autonomy principle of bank demand guarantees" (2009) 42(3) Comparative and International Law Journal of Southern Africa 339 (also republished in the international collection Byrne, JE & Byrnes, CS (eds) 2010 Annual Review of International Banking Law and Practice (2010)).
  20. Kelly-Louw, M "Protection for homeowners against various interest rate hikes" (2010) 22(1) South African Mercantile Law Journal.

Other publications, reports, and contributions (non-accredited)

Articles published in international journals

  1. Kelly-Louw, M "Better consumer protection under the statutory ‘in duplum’ rule" Vol 11, Number 1 (Fall 2007) Journal of Consumer & Commercial Law at 20–24) (article published in this United States journal because of an invitation received from the editor of this journal after he heard Prof Kelly-Louw’s presentation at the International Association of Consumer Laws' 11th International Consumer Law Conference held during 11-13 April 2007 in Cape Town). 

  2. Kelly-Louw, M "International measures to prohibit fraudulent calls on demand guarantees and standby letters of credit" (2009) Journal of International Commercial Law (George Mason University (United States) (article submitted based on an invitation received from the editor of this journal, based on Ptof Kelly-Louw's doctora thesis).

  3. Kelly-Louw, M "The South African National Credit Act fails to protect homeowners against various interest rates hikes" (2009) 6(12) US-China Law Review 12.

International research reports
  1. Kelly-Louw, M and Goodwin-Groen, RP The National Credit Act and its Regulations in the context of access to finance in South Africa (November 2006) (Research done for FinMark Trust, South Africa) (available at http://www.finmarktrust.org.za (last visited on 14 May 2010)).

Non-accredited articles

  1. Kelly, M "Increased public protection results in high costs for banks" (2000) 8(3) Juta’s Business Law 121.
  2. Kelly, M "Constitutionality of executions by agricultural banks without debtors having recourse to a court" (2000) 8(4) Juta’s Business Law 167.
  3. Kelly, M "Onderhoud — eers, nou stiefkind" Codicillus XXXXI No 1 (May 2000) 53.
  4. Kelly, M "Who’s more to blame?" (2001) 9(2) Juta’s Business Law 56. 
  5. Kelly, M "May the directors throw in the towel themselves?" (2001) 9(4) Juta’s Business Law 163.
  6. Kelly, M "The new Land Bank Act" (2003) 11(2) Juta’s Business Law 99.
  7. Kelly, M "More about the new Land Bank Act" (2003) 11(3) Juta’s Business Law 182.
  8. Kelly-Louw, M "Owners liable for tenants’ arrear water and electricity consumption charges" (2004) 12(3) Juta’s Business Law 132.
  9. Kelly-Louw, M "Collection of levies by a body corporate" (2004) 12(2) Juta’s Business Law 94.
  10. Kelly-Louw, M "Municipal debts – are they killing mortgage bonds?" (2005) 13(3) Juta’s Business Law 121.
  11. Kelly-Louw, M "The Land Bank – Out with the old and in with the new!" (2006) 14(2) Juta’s Business Law 69.
  12. Kelly-Louw, M "The common-law versus the statutory in duplum rule" (2006) 14(2) Juta’s Business Law 141.
  13. Kelly-Louw, M "Levelling the playing field between the Land Bank and commercial banks" (2007) 15(1) Juta’s Business Law 11.
  14. Kelly-Louw, M "The right of access to adequate housing? Does it prevent an execution order?" (2007) 15(1) Juta’s Business Law 35.
  15. Kelly-Louw, M "Introduction to the National Credit Act" (2007) 15(4) Juta’s Business Law 147.
  16. Kelly-Louw, M "Sometimes bank guarantees need to be similar to cash" (2007) 15(4) Juta’s Business Law 177.

Additional Research Outputs: Technical/Policy Reports

  1. Kelly-Louw, M "Consequential amendments for the National Credit Act". (Prof Kelly-Louw was requested by the Department of Trade and Industry in 2005 to analyse the areas in the legislation that would be affected by the enactment of the National Credit Act 34 of 2005 and to draft the necessary consequential amendments. She also assisted with the drafting of the Regulations to this Act. Since then, she has had 2 American delegations visiting her regarding her involvement with this Act).
  2. Kelly-Louw, M and Krull, W and Mostert, W and Deloittes "Revision of the Deeds Registries Act (Act No. 47 of 1937) and other land registration legislation for the Chief Registrar of Deeds: Department of Land Affairs". (Acted as one of the initial drafters during 2005–06 (appointed by the Minister of Agriculture) of legislation that will in future replace the Deeds Registries Act 47 of 1936 and the Sectional Titles Act 95 of 1986. A detailed report was submitted to the Department of Agriculture containing proposed changes to both acts.)

Book reviews

  1. Hahlo’s South African Company Law through the Cases, 6th edition, by JT Pretorius et al.
  2. Business Transactions Law 5edition, 5th edition by R Sharrock.
  3. Commercial Law 2nd edition by CJ Nagel et al.
  4. The credit guide: manage your money with the National Credit Act. By Nicky Campbell and Stephan Logan. Juta & Co, Ltd: Cape Town.
  5. The law of international trade: cross-border commercial transactions By Jason C.T. Chuah. Sweet & Maxwell: London.

Papers presented at local and international conferences from 2005 to date

  1. "Apportionment of liability between a negligent collecting bank and a thief", paper presented at the 2001 Current Commercial Law Seminar organised by the Centre for Business Law, Unisa held in Midrand on 21 March 2001.
  2. "Cross-border insolvency", paper presented at the Insolvency Conference organised by the University of Pretoria and held at the University of Pretoria on 11 May 2001.
  3. "Sequestrations", Nedcor staff training presented at the Property Finance Division of Nedcor Bank Ltd in Sandton during July 2001. 
  4. "Liquidations", Nedcor staff training presented at the Property Finance Division of Nedcor Bank Ltd in Sandton during August 2001. 
  5. "The statutory preferential right of the local government or body corporate above that of the mortgage bondholder in terms of a mortgaged property during insolvency proceedings", paper presented at the Law Teachers’ Conference held at Rhodes University in Grahamstown during 21-24 January 2002. 
  6. "The statutory preferential right of the local government or body corporate above that of the mortgage bondholder during insolvency proceedings", keynote speaker at the Corporate Law Update 2002 organised by the Institute for International Research held at the Crown Plaza Hotel in Sandton during 12-13 February 2002. 
  7. "Is the preferential right of the local government or body corporate above that of the mortgage bondholder during insolvency proceedings justified?" Invited keynote speaker at the meeting of the Afrikaanse Handelsinstituut (AHI) in Pretoria on 28 February 2002
  8. "The statutory preferential rights of the Land Bank: Justified or not?" Keynote speaker at the 2nd Annual Banking Law Symposium organised by the Institute for International Research held at the Rosebank Hotel in Johannesburg during 10–11 April 2002.
  9. "The provisions of the Land and Agricultural Development Bank Act 15 of 2002", invited keynote speaker at the Land Bank’s Board Workshop organised by the Land Bank in conjunction with Village Management held in Cape Town on 20 June 2002. (During this workshop the previous Minister of Agriculture (T Didiza) appointed the new board of directors for the Land Bank.)
  10. "The Land and Agricultural Development Bank Act 15 of 2002", paper presented at the Law Teachers’ Conference held in Windhoek at the University of Namibia during 29 June–4 July 2003.
  11. "How safe is internet banking?" Paper presented at the E-Commerce and Current Commercial Law Workshop organised by the Centre for Business Law, Unisa in conjunction with Nedcor Bank held at Nedcor Bank, Sandton on 28 August 2003. 
  12. "The statutory preferential right of the local government or body corporate above that of the mortgage bondholder during insolvency proceedings", paper presented at the International Insolvency Law (INSOL) Conference held in Cape Town during 2–4 April 2004. 
  13. "The National Credit Bill, 2005: An information session", keynote speaker and presenter of a workshop (on invitation) held at the Land Bank in Pretoria on 10 March 2005.
  14. "Over-indebtedness, reckless credit and debt enforcement", keynote speaker (invited) at the Law Society of the Northern Provinces’ Seminar on the National Credit Bill, 2005 held at the offices of the Law Society of the Northern Provinces in Pretoria on 8 April 2005.
  15. "Implications of core components of the National Credit Bill of 2005", keynote speaker and presenter of a workshop (on invitation) for the top management of Land Bank held at the Burger’s Park Hotel in Pretoria on 3 August 2005. 
  16. Made an oral and written presentation on the National Credit Bill 18 of 2005 before the Portfolio Committee on Trade and Industry (National Assembly) at the public hearings held at Parliament in Cape Town on 17 August 2005.
  17. "Implications of core components of the National Credit Bill and credit provider compliancy", keynote presenter (on invitation) at the Compliance Institute of South Africa’s 6th Annual Conference held at the Indaba Hotel in Johannesburg on 4 August 2005.
  18. "Better consumer protection under the statutory in duplum rule", paper presented at the International Association of Consumer Law’s 11th International Consumer Law Conference held in Cape Town during 11–13 April 2007. (Prof Kelly-Louw was also the chair of the committee that organised this international conference and she also chaired 2 workshop sessions).
  19. "Prevention of over-indebtedness and mechanisms for resolving over-indebtedness of South African consumers", paper presented at the Law and Society Association and the research committee on sociology of law’s international conference held in Berlin, Germany on 25–28 July 2007.
  20. "The National Credit Act and access to finance", keynote speaker at the Centre for Financial Services Innovations’ (CFSI) United States’ Exchange Programme’s South African workshop, held in Johannesburg on 29 January 2008 (Invited by this prestigious American delegation to be a keynote speaker based on Prof Kelly-Louw’s involvement with the drafting of the National Credit Act 34 of 2005.
  21. "Consumer protection against various interest rate hikes", paper presented at the 12th International Conference on Consumer Law, Hyderabad, India on 25–27 February 2009 (also chaired two workshop sessions at the conference).
  22. "Various interest rate hikes – is government causing over-indebtedness?", paper presented on invitation at the International Meeting in Chemnitz, Germany in March 2009.
  23. "Homeowners require protection against various interest rate hikes", a paper presented at the 2009 Law Teachers’ Conference held in Pietermartizburg on 13-16 July 2009.
  24. "Initiatives of the ICC to prevent fraudulent calls on bank demand guarantees and standby letters of credit", a paper presented at the Banking Law Seminar (organised by the Black Lawyers Association) Cape Town on 24 July 2009.
  25. "International attempts made by the ICC to prevent fraudulent calls on demand guarantees and standby letters of credit", paper presented at the 1st International Workshop on Trans-Border Commercial Law (organised by the Centre for Business Law, Unisa and Nedbank) held in Sandton, Johannesburg on 19-20 October 2009.
  26. Two papers
    "A brief overview of the South African National Credit Act", and "Does the National Credit Act protect consumers against various interest rate hikes?", two papers presented at the International Conference: Consumer Finance Post-Apartheid: The South African Experience held in Hartford, United States of America on 20-21 November 2009.
  27. "Documentary Credits and Independent Guarantees" paper presented together with C Hugo at the Annual Banking Law Update (organised by the University of Johannesburg) held at the Indaba Hotel, Johannesburg on 21 April 2010.

Conferences organised

  • The Black Economic Empowerment and Commercial Law Workshop, A one-day Workshop, organised by the Centre for Business Law, Unisa and sponsored by Nedbank Professional Banking, held on 26 August 2004 in Sandton (chair of the organising committee).
  • The International Association of Consumer Law’s 11th International Consumer Law Conference held during 11-13 April 2007 in Cape Town. Chaired the organising committee and arranged that the international conference be presented by the Centre for Business Law, Unisa. There were more than 70 prominent local and international speakers representing various consumer protection organisations, governmental bodies, the private sector and academic institutions. It was a very successful conference with over 170 delegates attending the conference. The countries the speakers and delegates came from included: South Africa, Africa (in particular Nigeria), Canada, the United States of America, the United Kingdom, Colombia, Australia, Germany, Malta, India, Israel, New Zealand, Belgium, Finland, Netherlands, Italy, Romania, Brazil, and Taiwan.