My first statement on National Treasury and SARB's draft Crypto Asset Manual for Cross-Border Activities:
While I am encouraged by the media statement’s acknowledgement that the draft Regulations and Crypto Asset Manual remain subject to refinement following public comments and stakeholder engagement - and that the draft Manual now treats withdrawal from a CASP, rather than the purchase of a crypto asset, as the reportable transaction - there remain significant concerns that will need to be addressed.
First and foremost, as I have written previously, South Africa would be better served by abolishing exchange controls altogether while preserving appropriate reporting, transparency and regulatory surveillance, rather than attempting to retrofit a half-century-old regulatory regime onto modern technology and the digital economy.
If South Africa chooses to retain capital controls, it should at least apply them on a principled, fair and technology-neutral basis. Regulation should govern the movement of value and manage the associated risks; it should not dictate which technologies individuals and businesses can use.
The draft Crypto Asset Manual, in its current form, is prejudicial to crypto assets and licensed CASPs and risks severely damaging South Africa’s crypto industry. This is particularly concerning when stablecoins and other crypto assets can facilitate cross-border payments more quickly, cheaply and transparently than traditional channels, while remaining fully subject to appropriate reporting and oversight.
On what principled basis should corporations and institutions be prohibited from using this technology to move value legitimately between South Africa and the rest of the world?
By prohibiting legitimate corporate activity through regulated providers, the proposed framework is likely to drive transactions underground or offshore. This would reduce the very visibility and surveillance that National Treasury and the SARB seek to achieve, while undermining employment, tax revenue, investment, innovation and business formation. Regulation must, at the very least, provide a level playing field for new technologies rather than entrenching legacy systems and practices.
The treatment of self-custody wallets also requires substantial reconsideration. The draft treats transactions originating from such wallets as “non-permissible” from the perspective of a South African CASP. This is neither practical nor sensible. It would effectively push South Africans using self-custodial wallets to transact through exchanges outside South Africa rather than regulated local CASPs - a perverse outcome for a regulatory framework that seeks to do exactly the opposite (i.e., keep capital in the country).
We face a fundamental choice in South Africa: whether we are serious about overcoming our economic challenges, unlocking growth and becoming a globally competitive force, or whether our frameworks undermine those ambitions. I'm hopeful that through the public commentary process, we can land on a regulatory framework that will help the country rise above its challenges, not make that task more difficult.
(More thoughts to come on other aspects of the draft Manual soon.)