A Historical Overview of the Regulation of Market Abuse in South Africa

In an early attempt to combat market abuse in the South African financial markets, legislation such as the Companies Act, the Financial Markets Control Act and the Stock Exchanges Control Act were enacted. However, these Acts failed to effectively curb market abuse activities that were allegedly rife in the financial markets. Consequently, the Insider Trading Act was enacted and came into effect on 17 January 1999. While the introduction of the Insider Trading Act brought some confidence in the financial markets, market abuse activities were still not extinguished. The provisions of the Insider Trading Act were to some extent inadequate and ineffectively implemented. Eventually, the Securities Services Act was enacted to repeal all the flawed provisions of the Insider Trading Act. Notwithstanding these efforts on the part of the legislature, more may still need to be done to increase the number of convictions and settlements in cases involving market abuse in South Africa. It is against this background that a historical overview analysis of the regulation of market abuse is carried out in this article to expose the flaws that were previously embedded in the South African market abuse laws prior to 2004. This is done to raise awareness of the situation on the part of the relevant stakeholders, as they consider whether such flaws were adequately resolved or subsequently re-introduced under the Securities Services Act and the Financial Markets Act. To this end, the article firstly discusses the historical development and regulation of market manipulation prior to 2004. Secondly, the regulation and enforcement of insider trading legislation prior to 2004 are examined. Moreover, where possible, certain flaws of the previous market abuse laws that were re-incorporated into the current South African market abuse legislation are isolated and recommendations are made in that regard.   

Editorial

The third issue of PER contains ten articles and one case note on a variety of themes. Shaun de Freitas shares his views on improper irreligious proselytism in religious rights and freedoms jurisprudence within a public school context and introduces an equitable and accommodative understanding of proselytism, which places the potentially harmful effects of both religious and irreligious beliefs on an equal footing with each other. Yvette Joubert and Juanitta Calitz analyse the role of the so-called private examinations in South African insolvency law and deal with the question of whether or not section 417 of the Insolvency Act 24 of 1936 is adequately and effectively framed in order to fulfil its intended purpose in South African law. Howard Chitimira gives a historical overview of the regulation of market abuse in South Africa. He concludes his contribution with a discussion by isolating certain flaws in the previous market abuse laws that were re-incorporated into the current South African market abuse legislation and makes recommendations in that regard. Juanita Jamneck discusses the contemporary meaning of the word "spouse" and the recognition of the family as an important social institution in the light of the provisions of the Intestate Succession Act 81 of 1987. Shannon Bosch reviews the scope and nature of "direct participation in hostilities" in international humanitarian law in the light of the Interpretive Guide on the Notion of Direct Participation in Hostilities issued by the International Committee for the Red Cross. The primary objective of the article by Vinesh Basdeo is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution. Eddie Hurter and Tana Pistorius examine the new .Africa Top Level Domain - an Africa initiative to ensure that Africa gets its rightful place in the global network. Geo Quinot tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. Thino Bekker discusses the scope and application of the integration rule in the South African law of contract and deals with the question if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. Yeukai Mupangavanhu discusses the case of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) in the light of the exemption clauses in the Consumer Protection Act 68 of 2008 (CPA). The case note, which is also the final contribution, by Martha Radebe evaluates the unconstitutional practices of the Judicial Service Commission under the guise of judicial transformation as they came to the fore in the case of the Cape Bar Council v Judicial Service Commission [2012] 2 ALL 143 (WCC).     &nbsp

Trading out of Poverty: WTO Agreements and the West African Agriculture. A Report of the Food Security II Cooperative Agreement

This report is a brief survey of WTO agreements and their implications for the West African economies (including Chad). The study reviews the positions of West African countries on various WTO issues and compares these positions with positions expressed by major trade partners, particularly the Cairns Group, the European Union, Japan, Sub-Sahara Africa, and the United States.food security, food policy, world trade organization, poverty, West Africa, international trade, market access, Food Security and Poverty, International Relations/Trade, Downloads July 2008-July 2009: 29, F0,

Civil Society Space in Africa

If there is an event or a series of events that demonstrate the need to protect democracy and reclaim the space for civil society; it is none other than the uprisings in North Africa and the Middle East. These have reaffirmed the crucial point in democratic and transitional studies; that is; that economic development without political and social progress is not sustainable. By all standards and indices, North Africa was always rated highly in terms of economic performance, yet simmering underneath was a revolution as a result of the closure of the public sphere. So when in 2011, popular uprisings spread like bushfire in that region, many in academia, media, civil society and governments were caught unprepared. Change came from unexpected circles, challenging assumed doctrines and theories associated with the functionality of organised formations

The Legislative Environment for Civil Society In Africa A Synthesis Report

This paper is therefore a discussion of the legislative environment under which civil society, in particular organized formations, operate in Africa. It is based on twelve African countries (Angola, DRC, Ethiopia, Liberia, Mauritius, Mozambique, Seychelles, Sierra Leone, South Africa, Uganda, Zambia and Zimbabwe). In all these countries we studied civil/state relations, existing NGO laws and NGO policies, including other laws that have an impact on NGOs, national constitutions, processes and the general political economy of the third sector. The merging findings point to some interesting conclusions. More studies are underway in Botswana, Cameroon, Ghana, Kenya, Lesotho, Madagascar, Malawi, Namibia, Nigeria, Senegal, and Swaziland. The findings from these will be integrated into the current paper. This paper is therefore work in progress -- nevertheless the countries studied already are significant to begin a discourse on state/civil society relations, public spaces, and the general legislative environment for citizens and their formations. One of the emerging findings is that the political context determined the emergence of these legal instruments

Corporate Social Responsibility and the Mining Sector in Southern Africa: A Focus on Mining in Malawi, South Africa and Zambia

The research conducted by the Bench Marks Foundation on mining in Southern provides SADC governments, mining companies and local mining community stakeholders with information and guidance on issues to consider in the process of empowerment and sustainable development through corporate social responsibility. At the same time it also alerts the global world of the human rights shortfalls that are being practised in the SADC mining communities

Global experience with electricity liberalisation

This paper examines global experiences with electricity liberalisation relevant to the new legislation on electricity passed by the Indonesian parliament in September 2009. It covers experiences in the UK, EU, USA and ten major developing economies. Finally, the paper comments on a number of the issues emerging from this survey, in particular the reliance on public finance for extensions to electricity networks, the advantages of public finance for cheaper capital and for developing renewables, and the comparative evidence on efficiency

Compulsory licensure as a cost-containment measure for essential medicines: a comparative study of South Africa, the Russian Federation and the People's Republic of China

This minor dissertation investigates alternative compulsory licencing (CL) policy approaches for the South African context. The purpose is to support the country's aspirations to reform certain components of its intellectual property (IP) regime, ensuring alignment with the country's development prerogatives. Homing in on technical barriers with the operationalisation of the existing CL mechanism; this paper investigates remedial recommendations to support South Africa's reform efforts. The paper also hopes to gauge whether it is feasible to leverage compulsory licensure as a cost-containment tool to circumvent price dominance in the sale of essential pharmaceutical commodities. The South African Patents Law provides for CL under three grounds. These are dealt with in chapter 2. The abuse of patents rights as a result of excessive pricing is one of these grounds. Yet, attempting to use this provision abuse of patents rights is procedurally and administratively cumbersome. This is notwithstanding the litigation costs. The 2018 national IP Policy aspires to reform the CL policy to ensure that it is a 'workable mechanism'. A comparative analysis of the CL policy landscapes in the People's Republic of China (PRC) and the Russian Federation will be taken to inform South Africa's discourse. These two countries are strategic because they have either reformed and/ or in the process of renovating their intellectual property rights (IPR) landscapes and both have interesting approaches to the way in which they have reformed their CL mechanisms. The findings of this paper reveal that Russia and China have undertaken extensive IPR reforms over the last three decades. They have both taken different policy approaches in adapting their CL instruments. Russia's CL reform proposals are underway and aim to advance a CL mechanism that can effectively regulate the abuse of patents, especially for essential pharmaceutical commodities. China has installed specific Implementing Measures which offer policy guidance on the applicability CLs. In the case study of China, the Measures imposed are not necessarily advanced as cost-containment tools. Rather they support the country's pharmaceutical agenda. The recommendations in this paper offer interesting insights to the feasibility exercises that will be advanced in South Africa's IPR reform process