The objective of this thesis is to critically analyse synthetic securitisation schemes in South
African law as synthetic collateralised debt obligations using primarily credit default swaps
(CDSs). This transpires from the perspective of primarily company law, and secondarily
securities law and the law of contract. It includes a contextualised study of these schemes with
regards to their origins, their significance regarding the recent financial crisis, and their
rationales micro-economic influence and Basel capital requirements. Not only are the
participants, such as parties acting in a primary role and secondary role and special-purpose
institutions, studied, but also the obligations between these parties, such as the CDS contract,
and the meaning of commercial paper, the legal nature of credit-linked notes, the business of a
bank, and the influence of recent case law. It also includes a consideration of synthetic
securitisation schemes in terms of the Collective Investment Schemes Control Act 45 of 2002.
Furthermore, the role of systemic risk and moral hazard is explained, as well as the interaction
between synthetic securitisation schemes, credit rating agencies and the function of risk
management. The CDS is compared with insurance contracts, and a discussion of the 2014
International Swaps and Derivatives Association Credit Derivative Definitions is incorporated.
For legal comparison, the South African model is compared with Canadian law and its
unfunded credit derivatives in the light of recent regulation, and compared to German law and
its prevalence of funded credit derivatives. Finally, suggestions are made as to the future of
synthetic securitisation schemes.