Further to our newsflash of 2 June 2025 on the application for leave to appeal the Standard Bank v South African Reserve Bank judgment, the High Court has, on 17 September 2025, granted the South African Reserve Bank ("SARB") and Ms Nomfundo Tshazibana leave to appeal directly to the Supreme Court of Appeal. The High Court's order remains suspended pending the appeal, and the legal position on the exchange control treatment of crypto assets therefore remains unsettled.
In very brief summary, the parties' principal arguments on the status of crypto in their leave to appeal heads of argument were:
SARB/Ms Tshazibana
- Crypto assets should be regarded as "money," "foreign currency," "capital" or a "right to capital" under the Exchange Control Regulations. SARB argued that the court should have adopted a purposive, "always speaking" interpretation to ensure the regulations remain effective in light of rapid technological developments and the emergence of new financial instruments such as crypto. They contended that excluding crypto from the regulatory framework undermines the SARB's constitutional mandate to protect the value of the currency and prevent the illicit export of capital and creates a regulatory gap that could be exploited to circumvent exchange controls.
Standard Bank
- Standard Bank disagreed. They argued that the court correctly applied a restrictive interpretation, in line with established legal precedent and the definitions in the regulations, which do not encompass crypto assets. They submitted that crypto is not legal tender, nor is it recognised as foreign currency or capital under the current law. Any regulatory gap, they argued, is a matter for the legislature to address through amendment, rather than for the courts to fill by expanding the scope of the regulations beyond their clear wording and intent.
Next steps
SARB/Ms Tshazibana must now file a notice of appeal within one month, and then Standard Bank may file a cross-appeal within one month thereafter. The appeal record is due three months after the notice of appeal is due, and heads of argument six weeks after the record is filed. A hearing date will then be allocated. The matter will accordingly only be heard by the SCA next year.
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