.REPUBLIC OF SOUTH AFRICA

SECURITIES SERVICES BILL

(MINISTER OF FINANCE)

[B - 2004]

_____________________________________________________________________

020704se

B I L L

1. Definitions

2. Objects of Act

3. Application of Act

4. Prohibitions

5. Registrar and Deputy Registrar of Securities Services

6. Financial Markets Advisory Board

7. Definitions

8. Application for exchange licence

9. General requirements applicable to applicant for exchange licence

10. Licensing of exchange

12. Listing of securities

13. Removal of listing and suspension of trading

15. Disclosure of information by issuers of listed securities

16. Maintenance of insurance, guarantee, compensation fund or other warranty

17. Funds of exchange

18. Requirements with which exchange rules must comply

19. Buying and selling listed securities

20. Restriction on buying and selling unlisted securities

21. Reporting of transactions in listed securities

22. Undesirable advertising and canvassing relating to securities

23. Certain written matter to bear names of certain persons

25. Marking of or recording details of securities

26. Restriction on alienation of securities

27. Segregation of funds of authorised users and other persons

28. Use of designation "stockbroker" and related designations

29. Definitions

30. Application for central securities depository licence

32. Licensing of central securities depository

33. Functions of central securities depository

34. Acceptance of participant

35. Functions of participant

36. Approval of nominee

37. Uncertificated securities

38. Functions of issuer of uncertificated securities

39. Requirements with which depository rules must comply

40. Registration of securities

41. Ownership of securities

42. Transfer of securities

43. Pledge, or cession of securities to secure debt

44. Delivery of securities

45. Records

46. Warranty

47. Relationship of trust

48. Attachment

49. Expiry and renewal of licence of self-regulatory organisation

50. Refusal of renewal of licence

51. Cancellation or suspension of licence

53. Demutualisation of self-regulatory organisation

54. Amalgamation or transfer of self-regulatory organisation

55. Duty of members of controlling body of self-regulatory organisation

56. Appointment of members of controlling body of self-regulatory organisation

58. Delegation of functions

59. Report by self-regulatory organisation to registrar

60. Attendance of meetings by, and furnishing of documents to, registrar

62. Limitation of liability

63. Disclosure of information by self-regulatory organisation

64. Application for clearing house licence

65. General requirements applicable to applicant for clearing house licence

66. Licensing of clearing house

67. Renewal, cancellation or suspension of clearing house licence

68. Limitation of liability

69. Amalgamation or transfer of clearing house

70. Code of conduct for authorised users

71. Principles of code of conduct

72. Definitions

73. Insider trading

74. Publication

75. Prohibited trading practices

76. False, misleading or deceptive statements, promises and forecasts

77. Civil liability resulting from insider trading

78. Powers of directorate in civil proceedings

79. Jurisdiction

80. Assessment of fines and penalties

81. Attachments and interdicts

82. Powers and duties of Financial Services Board

83. Composition and functions of directorate

84. Financing of directorate

85. Protection of existing rights

86. Confidentiality and sharing of information

88. Auditor

89. Accounting records and audit

90. Functions of auditor

91. Furnishing of information in good faith by auditor

92. Power of registrar to request audit

93. Powers of registrar to investigate or conduct inspection

94. Powers of registrar after investigation or inspection

95. Power of registrar to impose penalties

96. Power of court to declare person disqualified

97. Establishment of enforcement committee

98. Composition of enforcement committee

99. Functions of enforcement committee

100. Enforcement committee proceedings

101. Referral of matter

102. Consideration of matter by enforcement committee

103. Admission by respondent

104. Imposition of administrative fine

105. Payment of compensatory amount

106. Confidentiality

107. Winding-up or sequestration by court

108. Judicial management

109. Appointment of curator

110. Appointment of liquidator and judicial manager

111. Right of appeal

112. Evidence

113. Regulations

114. Fees

115. Offences and penalties

116. Savings

117. Amendment and repeal of laws

118. Short title and commencement

1. In this Act, unless the context indicates otherwise—

"advice" means any recommendation, guidance or proposal of a financial nature furnished, by any means or medium, to a client or group of clients in respect of the buying and selling of listed securities and irrespective of whether or not such advice results in any such transaction being effected, but does not include—

(a) factual advice given merely—

"advisory board" means the Financial Markets Advisory Board referred to in section 6;

"auditor" means an auditor registered in terms of the Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of 1991);

"authorised user" means a person authorised by an exchange in terms of the exchange rules to perform such securities services as the exchange rules may permit;

"bank" means a bank as defined in the Banks Act, 1990 (Act No. 94 of 1990), and a mutual bank as defined in the Mutual Banks Act, 1993 (Act No. 124 of 1993);

"board" means the Financial Services Board established by section 2 of the Financial Services Board Act, 1990 (Act No. 97 of 1990);

"board of appeal" means the board of appeal established by section 26 of the Financial Services Board Act, 1990 (Act No. 97 of 1990);

"central securities depository" means a person who is licensed as a central securities depository under section 32;

"clear", in relation to a transaction or group of transactions in listed securities, means—

(a) to calculate and determine, before each settlement process—

(b) where applicable, the process by means of which—

"clearing house" means a person licensed in terms of section 66 as a clearing house and appointed by an exchange to provide clearing house services to such exchange;

"clearing house services" means either clearing services or settlement services or both clearing and settlement services provided to an exchange by a clearing house;

"client" means any person who uses the services of an authorised user or a participant, as the case may be;

"Companies Act" means the Companies Act, 1973 (Act No. 61 of 1973);

"depository rules" means the rules made by a central securities depository in accordance with this Act;

"derivative instrument" means any—

(a) financial instrument; or

(b) contract,

that creates rights and obligations and that derives its value from the price or value, or the value of which may vary depending on a change in the price or value, of some other particular product or thing;

"directive" means a directive issued by a self-regulatory organisation in accordance with its rules;

"directorate" means the Directorate of Market Abuse referred to in section 83;

"electronic" includes created, recorded, transmitted or stored in digital or other intangible but visible form by electronic, magnetic, optical or any similar means;

"enforcement committee" means the enforcement committee established by section 97;

"exchange" means a person who constitutes, maintains and provides an infrastructure—

(a) for bringing together buyers and sellers of securities;

(b) for matching the orders for securities of multiple buyers and sellers; and

(c) whereby a matched order for securities constitutes a transaction;

"exchange rules" means the rules made by an exchange in accordance with this Act;

"external exchange" means a person authorised to function as an exchange in terms of the laws of a country other than the Republic;

"financial institution" means—

(f) a bank;

"Financial Institutions (Protection of Funds) Act" means the Financial Institutions (Protection of Funds) Act, 2001 (Act No. 28 of 2001);

"Financial Services Board Act" means the Financial Services Board Act, 1990 (Act No. 97 of 1990);

"foreign collective investment scheme" means a scheme, in whatever form, carried on in a country other than the Republic, in pursuance of which members of the public—

"index" means an indicator that reflects changes in the value of a group of securities on one or more exchange or external exchange;

"Insider Trading Act" means the Insider Trading Act, 1998 (Act No. 135 of 1998);

"issuer" means an issuer of securities and, in Chapter IV, includes an issuer of money market instruments;

"in writing", in relation to anything which, in terms of this Act, must be done in writing, includes any such thing done in electronic form;

"listed securities" means securities included in the list of securities kept by an exchange in terms of section 12;

"management of securities" means—

(c) an agreement to buy or sell securities on behalf of another person;

"Minister" means the Minister of Finance;

"nominee" means a person that acts as the registered holder of securities or an interest in securities on behalf of other persons;

"participant" means a person who holds in custody and administers securities or an interest in securities and who has been accepted in terms of section 34 by a central securities depository as a participant in that central securities depository;

"prescribed by the Minister" means prescribed by the Minister by regulation;

"prescribed by the registrar" means prescribed by the registrar by notice in the Gazette;

"Public Accounts' and Auditor's Act" means the Public Accounts' and Auditor's Act, 1991 (Act No. 80 of 1991);

"registrar" means the Registrar or Deputy Registrar of Securities Services referred to in section 5;

"regulated person" means a self-regulatory organisation or any other person who provides or who previously provided securities services;

"regulation" means a regulation made under section 113;

(a) means—

(b) excludes—

"securities services" means services provided in terms of this Act in respect of—

(a) the buying and selling of securities;

(b) the custody and administration of securities;

(c) the management of securities by an authorised user;

(d) the clearing of transactions in listed securities; and

(e) the settlement of transactions in listed securities;

"self-regulatory organisation" means an exchange or a central securities depository;

"settle" means to discharge the obligations arising from a transaction in listed securities;

"settling party" means a buyer or seller of listed securities who settles a transaction or any person appointed in terms of exchange rules by such buyer or seller to settle a transaction on such buyer or seller’s behalf;

"stockbroker" means a natural person who is a member of the South African Institute of Stockbrokers;

"systemic risk" means the danger of a failure or disruption of the Republic’s financial system as a whole;

"this Act" includes any measure prescribed by the Minister or by the registrar;

"transaction" means a contract of purchase and sale of securities.

2. This Act aims to—

(b) promote the protection of regulated persons and clients;

(c) reduce systemic risk; and

(d) promote the international competitiveness of securities services in the Republic.

3. (1) This Act applies to—

(b) issuers;

(c) clients;

(d) market abuse; and

(e) matters incidental to the matters referred to in paragraphs (a) to (d).

(2) This Act does not apply to—

(3) Any law or the common law relating to gambling or wagering does not apply to any activity regulated by or under this Act.

4. (1) No person may—

(a) operate as an exchange unless that person is licensed under section 10;

(c) operate as a clearing house unless that person is licensed under section 66;

(2) Subject to any contrary provision in any other law, a person who is not—

(a) licensed as an exchange, a central securities depository, or a clearing house;

(c) an authorised user,

may not purport to be an exchange, central securities depository, clearing house, participant, or authorised user, as the case may be, or behave in a manner or use a name or description which suggests, signifies or implies that there is some connection between that person and an exchange, a central securities depository, clearing house, participant or authorised user, as the case may be.

5. (1) The executive officer and a deputy executive officer referred to in section 1 of the Financial Services Board Act are the Registrar and the Deputy Registrar of Securities Services, respectively.

(2) The registrar must perform the functions assigned to the registrar by or under this Act and must supervise compliance with this Act by every regulated person.

(3) In performing those functions the registrar—

(a) must act in a manner which—

(b) must have regard to—

6. (1) The Financial Markets Advisory Board established by section 3 of the Financial Markets Control Act, 1989 (Act No. 55 of 1989), continues to exist, despite the repeal of that Act by section 117.

(2) The advisory board consists of—

(a) a chairperson; and

appointed by the Minister after consultation with the board.

(3) The registrar is a member of the advisory board by virtue of the registrar’s office but may not vote on matters on which the registrar is to be advised by the advisory board.

(4) A member of the advisory board holds office for the period determined by the Minister when the appointment is made.

(5) The board pays to a member of the advisory board who is not in the full-time employment of the State—

(a) the remuneration or allowances determined by the board; and

(6) (a) (i) The chairperson of the advisory board must convene the first meeting of the advisory board after the commencement of this Act and thereafter the advisory board meets at a time and place determined by the advisory board.

(ii) The chairperson convenes a meeting following upon a meeting at which there was no quorum.

(b) The quorum for a meeting of the advisory board is a majority of its members.

(7) The advisory board may on its own initiative, and must, at the request of the Minister or the registrar, investigate and report or advise on, administrative and technical matters concerning regulated persons or the provision of securities services.

(8) The advisory board may—

(9) The registrar may submit to the advisory board any information that is relevant to any matter investigated by the advisory board.

(10) The registrar is responsible for the administrative work incidental to the functions of the advisory board and a subcommittee of the advisory board.

(11) (a) The board must pay the expenses connected with the functions of the advisory board.

(b) The advisory board must obtain the approval of the board before expenses are incurred.

(12) The provisions of the Commissions Act, 1947 (Act No. 8 of 1947), regarding the summoning and examination of persons and the administering of oaths and affirmations to them, the calling for the production of books, documents and objects, and offences by witnesses, apply with the changes required by the context to an investigation by the advisory board or a subcommittee thereof.

7. In this Chapter, unless the context indicates otherwise—

"list" means the list of securities referred to in section 12;

"listing requirements" means the requirements, determined by an exchange, that must be met before a security may be traded, or may continue to be traded, on that exchange.

8. (1) A person may apply to the registrar for an exchange licence in respect of one or more types of securities referred to in the definition of securities in section 1.

(2) Despite section 30 of the Companies Act an association consisting of 10 or more persons may apply for an exchange licence.

(3) An application for an exchange licence must—

(a) be made in the manner and contain the information prescribed by the registrar;

(b) show that the applicant complies with the requirements listed in section 9;

(c) be accompanied by—

(4) The registrar must give notice of an application for an exchange licence in two national newspapers at the expense of the applicant. The notice must state—

(a) the name of the applicant;

9. (1) Subject to subsection (2), an applicant for an exchange licence must—

(2) The registrar may, with reference to the nature of an exchange, determine to what extent an applicant must comply with the requirements referred to in subsection (1).

(3) The registrar may prescribe any of the requirements referred to in subsection (1) in greater detail.

10. (1) The registrar may, after consideration of any objection received as a result of the notice referred to in section 8 (4) and subject to any conditions which the registrar may consider appropriate, grant an exchange licence if—

(a) the applicant complies with the relevant requirements of this Act; and

(2) The exchange licence must specify the services that the exchange may provide, the main office of the exchange in the Republic and the places where the exchange may be operated, and stipulate that the exchange may not be operated at any other place without the prior written approval of the registrar.

(3) An exchange may at any time apply to the registrar for an amendment of the terms of the licence and the conditions subject to which its licence was granted.

11. (1) An exchange—

(a) must enforce the exchange rules and listing requirements;

(c) may issue directives;

(2) (a) The registrar may assume responsibility for one or more of the functions referred to in subsection (1) if the registrar considers it necessary in order to achieve the objects of this Act referred to in section 2.

(b) The registrar must, before assuming responsibility as contemplated in paragraph (a)—

(i) inform the exchange of the registrar’s intention to assume responsibility;

(ii) give the exchange the reasons for the intended assumption; and

12. (1) An exchange must, to the extent applicable to the exchange in question, make listing requirements which prescribe—

(e) such details relating to the listed securities as may be necessary;

(2) The listing requirements may prescribe that—

(3) If a person fails to pay a fine or compensation referred to in subsection (1)(g) the exchange may file with the clerk or registrar of any competent court a statement certified by it as correct, stating the amount of the fine imposed or compensation payable, and such statement thereupon has all the effects of a civil judgment lawfully given in that court against that person in favour of the exchange for a liquid debt in the amount specified in the statement.

(4) The listing requirements must prescribe the purpose for which a fine referred to in subsection (1)(g) must be appropriated.

(5) Listing requirements and any other conditions of listing are binding on an issuer and an authorised user and their directors, officers, employees and agents.

(6) An exchange—

(a) must keep a list of the securities which may be traded on the exchange;

(7) An exchange must, before refusing an application to include securities in the list—

(a) inform the issuer of its intention to refuse the application;

(b) give the issuer the reasons for the intended refusal; and

13. (1) An exchange may, subject to this section, the exchange rules and the listing requirements, remove securities from the list, even to the extent that a removal may have the effect that an entire board or substantial portion of the board on the exchange is closed or suspend the trading in listed securities, if it will further one or more of the objects of this Act referred to in section 2.

(2) An exchange must, subject to subsection (3) and before a removal or suspension referred to in subsection (1)—

(a) inform the issuer of its intention to remove or suspend;

(b) give the issuer the reasons for the intended removal or suspension; and

(3) If the listing requirements, the conditions determined by an exchange in respect of the listing of securities or the exchange rules are not complied with or if a circumstance arises which the exchange rules or the listing requirements envisage as a circumstance justifying the immediate suspension of trading, an exchange may, subject to subsection (1), order an immediate suspension referred to in that subsection, for a period not exceeding 30 days, which period may be extended for further periods of 30 days.

(4) If the trading of listed securities has been suspended in terms of this section, an exchange may, despite subsections (1) and (3), permit authorised users to buy and sell those securities for the sole purpose of fulfilling their obligations entered into in relation to those securities before the suspension.

(5) (a) If an issuer requests an exchange to remove its securities from the list but the exchange considers the securities to be eligible for continued inclusion in the list, the removal must be approved by the holders of those securities in a manner specified by the exchange and the exchange must be satisfied on reasonable grounds that the interests of minority holders of the securities have been considered.

(b) An issuer must provide reasons for the request contemplated in paragraph (a).

(6) (a) If an exchange refuses an application for the inclusion of securities in the list under section 12(6)(b), or under subsection (1) removes securities from the list or suspends the trading of listed securities, the exchange concerned must immediately notify every other exchange in the Republic on which such securities are listed of the reasons for and the date of the refusal, removal or suspension.

(b) If the refusal to list securities or the removal of securities referred to in paragraph (a) was due to a failure to comply with the exchange's listing requirements, no other exchange in the Republic may, for a period of six months from the date referred to in paragraph (a), grant an application for the inclusion of the securities concerned in the list kept by it, or allow trading in such securities, unless the refusal, removal or suspension has been withdrawn by the first exchange or set aside on appeal by the board of appeal in terms of section 111.

(c) If an exchange withdraws a refusal, removal or suspension before the expiry of the period of six months, it must notify every other exchange in the Republic on which the securities are or were listed.

14. (1) Listing requirements or conditions determined by an exchange in respect of the listing of securities, may be applied by the exchange to securities listed before the determination of the listing requirements or conditions, by notice in writing to the issuer of such listed securities.

(2) Listing requirements or conditions so applied take effect from a date determined by the exchange, which date must not be earlier, except when special circumstances justify an earlier date, than one month after the date on which the exchange so notifies the issuer, but the exchange may postpone the former date on written request by the issuer.

(3) If an exchange refuses a request for a postponement in terms of subsection (2) the issuer concerned may make representations in writing to the registrar, and if the request for a postponement is reasonable, the registrar may, after consultation with the exchange, postpone the date on which the listing requirements or conditions take effect by not more than three months and must inform the exchange accordingly in writing.

15. (1) (a) An exchange may require an issuer of listed securities to disclose to it any information at the issuer’s disposal about those securities, or about the affairs of that issuer, if such disclosure is necessary to achieve one or more of the objects of this Act referred to in section 2.

(b) An exchange may require the issuer to disclose that information to the registered holders of the securities within a period specified by the exchange.

(c) If the issuer refuses to disclose the information to the exchange or the registered holders of the securities the exchange may, unless the issuer obtains a court order excusing it from such disclosure, suspend trading in those securities until such time as the required disclosure has been made to the satisfaction of the exchange.

(2) When an issuer discloses information in terms of this section to the registered holders of securities that may influence the price of those securities, the issuer must at the same time make the information available to the public.

16. An exchange may impose a levy on any person involved in a transaction in listed securities effected through the exchange for the purpose of maintaining the insurance, guarantee or compensation fund or other warranty contemplated in section 9(1)(e).

17. (1) An exchange may require its authorised users and their clients to contribute towards the funds of the exchange for the purpose of carrying on the business of the exchange.

(2) If an exchange has assets which are surplus to its requirements it may distribute such assets to any person—

(a) after providing for any liabilities of the exchange;

(b) in accordance with its founding documents; and

(c) with the written consent of the registrar.

(3) If an exchange is a non-proprietary exchange, the distribution referred to in subsection (2) may be made despite contrary provisions of any law or the common law and without affecting the non-proprietary status of the exchange.

18. (1) The exchange rules must be consistent with this Act.

(2) The exchange rules must provide –

(b) (i) for the capital adequacy, guarantee and risk management requirements

(r) for the—

(y) that authorised users must disclose to clients the fees for their services;

(aa) for the purposes for which an exchange may issue directives;

(3) An exchange may, with the approval of the registrar, make exchange rules on matters additional to those listed in subsection (2).

(4) An exchange rule made under this section is binding on an exchange, an authorised user, an issuer and their officers and employees, and on clients.

19. A person may carry on the business of buying or selling listed securities if that person—

(a) is an authorised user;

(b) effects such buying or selling through an authorised user;

20. (1) The registrar may—

(b) impose conditions for the carrying on of such business;

(2) A person who buys unlisted securities from or sells unlisted securities to a person who contravenes or fails to comply with a prohibition or condition referred to in subsection (1), may cancel the transaction.

21. (1) A financial institution, whether it carries on the business of buying or selling listed securities or not, must report to the registrar any transaction in listed securities resulting in a change of beneficial ownership of those securities and concluded by it outside of an exchange.

(2) The registrar may prescribe—

(a) the information required in respect of any transaction; and

(b) the manner in and time within which reports are to be rendered.

(3) The registrar must disclose information about a transaction reported in terms of subsection (1) to—

(a) the exchange on which the securities are listed; and

(4) The exchange referred to in subsection (3) may publish any information disclosed to it in terms of that subsection.

22. (1) No person, other than an authorised user or an officer or employee of an authorised user who is so permitted in terms of exchange rules, may in any manner, directly or indirectly, advertise or canvass for the business of an authorised user.

(2) Despite any contrary law, the registrar may, if an advertisement, brochure or other document relating to securities is misleading or for any reason objectionable, direct that the advertisement, brochure or other document not be published or the publication thereof be stopped or that such amendments as the registrar considers necessary be effected.

23. No person may publish or circulate any written comment which relates to the trading results of a public company or which may influence the value of the listed securities of a company unless such comment is accompanied by—

(b) disclosure of the source from which it was obtained.

24. No authorised user may—

(b) repledge listed securities without the written consent of the pledgor.

25. When a document of title relating to listed securities comes into the possession of an authorised user, the authorised user must, as soon as possible—

(a) mark it; or

(b) record and store the necessary details,

in a manner which will render it possible at any time thereafter readily to establish the identity of the owner of those securities.

26. Subject to the exchange rules, an authorised user may only alienate listed securities deposited with the authorised user if the person who deposited them has authorised such alienation in writing.

27. (1) (a) Every authorised user must open and maintain a trust account at a bank designated for client funds, or may use such an account opened and maintained by an exchange, into which any instruments of payment or cash received from a client must be deposited on the day of receipt: Provided that any deposit that is made by a client directly into an authorised user’s own account, or any deposit that is received after banking hours, must be transferred into such trust account by the start of business on the next day.

(b) A trust account referred to in this subsection may contain only funds of clients and not those of an exchange or authorised user.

(2) Funds received from a client need not be deposited into a trust account if payment—

(a) is made to the authorised user by a buyer of listed securities—

(3) Funds held in a trust account and any funds which have not been deposited into a trust account as envisaged in subsection (1) but which are identifiable as belonging to a specific person, are considered to be "trust property" as defined in the Financial Institutions (Protection of Funds) Act and that Act applies to those funds, subject to this section.

(4) Funds deposited into a trust account may only be withdrawn by an authorised user for the purpose of making payment—

(a) to the person entitled to the payment; or

(b) in terms of any other law or the exchange rules:

Provided that if, after the withdrawal, any deposited cheque, draft or other instrument against which the withdrawal was made, is not subsequently honoured, the authorised user must pay the shortfall arising from the default into the trust account immediately.

(5) All bank charges accruing in respect of a trust account are for the account of the authorised user except that bank charges specifically relating to a deposit or withdrawal of the funds of a client are for that client’s own account.

(6) Any interest accruing to the funds in a trust account is payable to the owner of the funds after any fees owing to the authorised user or exchange have been deducted.

(7) Any excess remaining in a trust account after payment of or provision for all claims of persons whose funds have or should have been deposited in the trust account, is not trust property as contemplated in subsection (3).

(8) The division of the High Court of South Africa having jurisdiction over an authorised user may, on the application of an exchange, the registrar or any other person having a claim against a trust account of the authorised user, on good cause shown, prohibit the authorised user from operating the trust account, and may appoint a curator to control and administer the trust account with such rights, powers and duties in relation thereto as the court may consider necessary.

28. (1) A stockbroker may use the designation "stockbroker", "stockbroker (South Africa)" or "stockbroker (SA)".

(2) A person who is not a stockbroker may not –

(a) purport to be a stockbroker; or

(3) A person to whom the rules of an external exchange apply, and whose business is substantially similar to that of a stockbroker, may use the designation "stockbroker", if the country in which the use of the designation is authorised, is indicated after the designation.

29. In this Chapter, unless the context indicates otherwise—

"central securities account" means an account kept by a central securities depository for a participant and reflecting the number or nominal value of securities of each kind deposited and all entries made in respect of such securities;

"central securities repository" means a collection of securities of the same kind held by a central securities depository;

"certificated securities" means securities evidenced by a certificate or written instrument;

"deposit" means a deposit of securities and includes a deposit by means of an entry in a securities account or a central securities account;

"entry" includes an electronic recording of any deposit, withdrawal, transfer, attachment, pledge, cession to secure a debt or other transaction in respect of securities;

"securities" includes certificated securities and uncertificated securities and money market instruments;

"securities account" means an account kept by or on behalf of a participant for a client and reflecting the number or nominal value of securities of each kind deposited and all entries made in respect of such securities;

"securities of the same kind" means securities of the same class and issued by the same issuer;

"securities repository" means a collection of securities of the same kind held by a participant;

"subregister" means a subregister as defined in section 91A of the Companies Act;

"uncertificated securities" means securities that are not evidenced by a certificate or written instrument and are transferable by entry without a written instrument.

30. (1) A person may apply to the registrar for a central securities depository licence.

(2) Such an application must—

(a) be made in the manner and contain the information prescribed by the registrar;

(b) show that the applicant complies with the requirements referred to in section 31;

(c) be accompanied by—

(3) The registrar must give notice of an application for a central securities depository licence in two national newspapers at the expense of the applicant. The notice must state—

(a) the name of the applicant ;

31. (1) An applicant for a central securities depository licence must—

(c) maintain security and back-up procedures to ensure the integrity of its records.

(2) The registrar may prescribe any of the requirements referred to in subsection (1) in greater detail.

32. (1) The registrar may, after consideration of any objection received as a result of the notice referred to in section 30(3) and subject to the conditions which the registrar may consider appropriate, grant a central securities depository licence if—

(a) the applicant complies with the relevant requirements of this Act; and

(2) The licence must specify the securities services that may be provided by the central securities depository, the main office of the central securities depository in the Republic and the places where the central securities depository may be operated, and that the central securities depository may not be operated at any other place without the prior written approval of the registrar.

(3) A central securities depository may at any time apply to the registrar for an amendment of the terms of its licence and the conditions subject to which its licence was granted.

33. A central securities depository—

(a) must enforce the depository rules;

(b) may amend or suspend the depository rules in terms of section 61;

(c) must supervise compliance by participants with this Act and the depository rules;

(d) may issue directives;

(m) must on request disclose to—

34. A central securities depository may accept, in terms of the depository rules, a person that holds securities or an interest in securities, as a participant in that central securities depository.

35. A participant—

(b) must maintain a securities account for a client in respect of securities deposited;

(h) must on request disclose to—

36. (1) A nominee of—

(2) A nominee which is not approved as a nominee in terms of subsection (1) must be approved by the registrar and must comply with the requirements which the registrar may prescribe for nominees before it can function as a nominee in terms of this Act.

(3) The registrar must maintain a list of all nominees approved in terms of exchange rules or depository rules.

37. (1) Certificated securities may be converted to uncertificated securities and an issuer may issue uncertificated securities despite any contrary provision in—

(a) any other law;

(b) the common law;

(c) an agreement;

(d) articles of association of an issuer;

(e) a prospectus; or

(f) any other conditions applicable to the issuing of securities.

(2) An issuer and a central securities depository and its participants must make arrangements in accordance with depository rules for uncertificated securities to be evidenced by way of entry.

(3) An issuer has the same obligations in respect of uncertificated securities as it has in respect of certificated securities except that no certificate or written instrument is issued in respect of uncertificated securities.

38. An issuer of uncertificated securities must—

(e) if applicable, comply with section 91A of the Companies Act.

39. (1) The depository rules must be consistent with this Act.

(2) The depository rules—

(d) must provide for the manner in which a participant who is believed to—

(f) must require that—

(g) must require that where a participant agrees, or is otherwise required, to—

(k) must provide for—

(3) A central securities depository may, with the approval of the registrar, make depository rules on matters additional to those listed in

subsection (2).

(4) A depository rule made under this section is binding on the central securities depository, a participant, an issuer of securities deposited with the central securities depository and their officers and employees, and clients.

40. (1) All securities held by a central securities depository must, unless they are bearer instruments, money market instruments or recorded in a subregister in accordance with section 91A of the Companies Act and the depository rules, be registered in the name of that central securities depository or its wholly owned subsidiary, as defined in section 1 of the Companies Act and approved by the registrar.

(2) (a) No central securities depository or participant may become the owner, co-owner, holder, pledgee or cessionary for the purpose of securing a debt, of securities merely because of—

(i) a deposit of securities; or

(ii) the registration in its name of—

(b) Paragraph (a) also applies to a wholly owned subsidiary as defined in section 1 of the Companies Act of a central securities depository or participant.

41. (1) Where securities of any kind are deposited with a participant or with a central securities depository, or accrue to the owner of securities held by a participant in a securities repository or by a central securities depository in a central securities repository, the person who was the owner of the securities at the time of deposit or accrual becomes entitled to an interest as co-owner of all the securities of the same kind comprised in the securities repository or central securities repository, as the case may be.

(2) In so far as any limited right exists in respect of any securities at the time of such deposit or accrual, such limited right extends to the interest of such co-owner and to any securities delivered to that co-owner.

(3) The interest of a co-owner, client or participant in all the securities in a securities repository or central securities repository, as the case may be, must be calculated by reference to the proportion that the number or nominal value of securities deposited by or on behalf of that co-owner, client or participant and accruing to such securities, bears from time to time to the total number or nominal value of all securities of that kind held in the securities repository or central securities repository, as the case may be.

(4) A written statement issued by or on behalf of a participant in respect of an owner of securities or of a client, or by or on behalf of a central securities depository in respect of a participant, as the case may be, and specifying the interest of that owner, client or participant, is prima facie evidence of the title or interest of that person in such securities.

42. Transfer of an interest in securities held by a central securities depository or participant must be effected by entry in the central securities account or securities account of the transferor and the transferee kept by the central securities depository or the participant, as the case may be.

43. (1) A pledge or cession to secure a debt, in respect of an interest in securities held by a central securities depository or participant, must be effected by entry in the central securities account or the securities account of—

as the case may be.

(2) Such interest in securities may not be transferred except with the written consent of the pledgee or cessionary.

(3) The pledgee or cessionary of such interest in securities is entitled to all the rights of a pledgee of movable property or cessionary of a right in movable property pledged or ceded to secure a debt.

(4) Subsections (1), (2) and (3) also apply, with the changes required by the context, to the pledge and cession to secure a debt by one participant to another of an interest in securities held by a central securities depository in a central securities account.

44. Subject to sections 41 and 43, the owner of an interest in securities held by a participant in a securities repository or a participant holding an interest in securities in a central securities repository, as the case may be, is at all times entitled, on written request for withdrawal, to delivery, within a reasonable time, by the participant or central securities depository concerned, of a certificate or written instrument evidencing the same number of securities, or securities of the same nominal value and of the same kind as the interest in securities held on such owner or participant’s behalf, as long as such owner or participant has a sufficient unencumbered credit balance of those securities in that owner’s securities account or in that participant’s central securities account, as the case may be.

45. If the records of a central securities depository are inconsistent with those of a participant regarding securities deposited with the central securities depository by the participant, the records of the central securities depository are deemed to be correct until the contrary is proved.

46. (1) Every person, whether a client or participant, who deposits securities with a participant or central securities depository, as the case may be, is deemed to warrant that such person is entitled to deposit the securities deposited by that person and that any document or instruction relating to such securities and lodged or given by that person is genuine and correct in all respects and that person is deemed to have agreed to indemnify the participant or the central securities depository against any claim made upon the participant or central securities depository and against any loss suffered by the participant or central securities depository arising out of such deposit or breach of warranty.

(2) A central securities depository is not deemed to have given a warranty or indemnity referred to in subsection (1).

47. A central securities depository is not obliged to recognise any relationship of trust or agency of its participants in respect of securities.

48. (1) The attachment of an interest in securities deposited with a participant and held in a securities repository or central securities repository is only complete when—

(a) notice of the attachment has been given in writing by the sheriff to the participant;

(2) The sheriff may upon exhibiting the original of the warrant of execution to the participant enter upon the premises where such account is kept and make an inventory and valuation of the interest attached.

49. (1) The licence of a self-regulatory organisation (in this Chapter referred to as "a licence") expires on 31 December of the year for which it is issued but may be renewed on application to the registrar.

(2) An application for renewal of a licence must be—

(a) made in the manner and contain the information prescribed by the registrar;

(b) accompanied by the application fee prescribed by the Minister; and

50. (1) The registrar may refuse to renew a licence if during the year preceding the date of the application for renewal the applicant failed to—

(a) comply with this Act or the rules of the self-regulatory organisation;

(c) give effect to a decision of the board of appeal in terms of section 111,

and such failure has defeated the objects of this Act referred to in section 2 or is likely to defeat them.

(2) The registrar must, before refusing to renew a licence—

(a) inform the applicant of the registrar’s intention to refuse renewal;

(b) give the applicant the reasons for the intended refusal; and

(3) If the registrar refuses to renew a licence the registrar must take such steps as are necessary to achieve the objects of this Act referred to in section 2, which steps may include—

(b) the winding-up of the self-regulatory organisation in terms of section 107.

51. (1) The registrar may, on conditions determined by the registrar,

cancel or suspend a licence if—

(a) the self-regulatory organisation has failed to—

(2) The registrar must, before cancelling or suspending a licence—

(3) If the registrar cancels or suspends a licence the registrar must take such steps as are necessary to achieve the objects of this Act referred to in section 2, which steps may include—

(b) the winding-up of the self-regulatory organisation in terms of section 107.

52. (1) A self-regulatory organisation that is not a juristic person is, from the date on which it is licensed by the registrar, a juristic person capable of acquiring rights and duties and of acquiring, owning, burdening, hiring, letting and alienating property, and, subject to this Act, of doing such things as may be necessary for or incidental to the performance of its functions in terms of its rules.

(2) If a self-regulatory organisation carries on business in addition to that regulated by or under this Act the registrar may, for the purpose of minimising systemic risk, lay down requirements in respect of the carrying on of such business.

53. (1) A self-regulatory organisation which is not incorporated as a company having a share capital in terms of the Companies Act may convert to such a company with the approval of the registrar and subject to the conditions that the registrar may prescribe.

(2) If a conversion referred to in subsection (1) takes place—

54. (1) Two or more exchanges, or two or more central securities depositories, may amalgamate or merge, or any of the assets and liabilities of an exchange or central securities depository may be transferred to or taken over by any other exchange or central securities depository, as the case may be, with the approval of the registrar and subject to the conditions that the registrar may prescribe.

(2) If an amalgamation or transfer referred to in subsection (1) takes place—

55. Each member of the controlling body of a self-regulatory organisation owes a fiduciary duty and a duty of care and skill to the self-regulatory organisation.

56. (1) No person who—

may be appointed as a member of the controlling body of a self-regulatory organisation.

(2) A person who accepts an appointment in contravention of subsection (1) commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding 2 years, or to both a fine and such imprisonment.

(3) If a self-regulatory organisation makes an appointment in contravention of subsection (1)—

(b) knowing that the appointed member is so disqualified,

the registrar may impose a fine not exceeding R50 000 upon the self-regulatory organisation.

(4) A self-regulatory organisation must, within 14 days of the appointment of a new member to its controlling body, inform the registrar of the appointment and furnish the registrar with such information on the matter as the registrar may reasonably require.

(5) The provisions of subsection (4) may not be construed so as to render the appointment of a member of the controlling body of a self-regulatory organisation subject to the approval of the registrar.

(6) If it appears to the registrar that a member is disqualified in terms of subsection (1), the registrar may, subject to subsection (7), instruct the self-regulatory organisation to remove that member from its controlling body.

(7) The registrar must, before giving an instruction in terms of subsection (6)—

(8) If the registrar instructs the self-regulatory organisation to remove a member from its controlling body, the self-regulatory organisation must so remove the member within a period of 14 days and must ensure that the person in question does not in any way, whether directly or indirectly, concern him- or herself with or take part in the management of the self-regulatory organisation.

(9) If a self-regulatory organisation fails to comply with subsection (8), the registrar may, in respect of such failure, impose a fine not exceeding R5000 for every day during which such failure continues.

(10) Section 95(2), (3) and (4) is, with the changes required by the context, applicable to the imposition of a fine under subsections (3) and (9).

57. (1) For the purposes of this section "associate", in relation to—

(a) a natural person, means—

(b) a juristic person—

(2) For the purposes of this section a person is deemed to exercise control over a self-regulatory organisation, which is a company or close corporation, if that person, alone or with associates—

(3) No person may, subject to this section, without the approval of the registrar acquire or hold shares or any other interest in a self-regulatory organisation, which is a company or close corporation, if the acquisition or holding results in that person, directly or indirectly, alone or with an associate, exercising control over the self-regulatory organisation.

(4) No person may acquire or control shares in a self-regulatory organisation, which is a company or close corporation, if the aggregate nominal value of those shares, by itself or together with the aggregate nominal value of the shares already owned by that person or by that person and his or her associates, will amount to more than 15 per cent of the total nominal value of all the issued shares of the self-regulatory organisation concerned, without the prior approval of the registrar.

(5) The approval referred to in subsection (3)—

(a) may be given—

(6) If the registrar is satisfied on reasonable grounds that the retention of a particular shareholding by a particular shareholder will be prejudicial to the self-regulatory organisation, the registrar may apply to the Court in whose area of jurisdiction the main office of the self-regulatory organisation is situated for an order—

58. (1) A self-regulatory organisation may delegate or assign any function entrusted to it by this Act or its rules, to a person or group of persons, or a committee approved by the controlling body of the self-regulatory organisation, or a division or department of the self-regulatory organisation, subject to the conditions that the self-regulatory organisation may determine.

(2) The registrar may delegate or assign any function entrusted to the registrar by or under this Act subject to the conditions that the registrar may determine.

(3) A self-regulatory organisation or the registrar, as the case may be, is not divested or relieved of a function delegated or assigned under subsection (1) or (2) and may, if necessary, withdraw the delegation or assignment at any time on reasonable notice.

59. Within four months after the financial year-end of a self-regulatory organisation, it must submit to the registrar an annual report containing the details prescribed by the registrar and audited annual financial statements that fairly present the financial affairs and status of the self-regulatory organisation.

60. (1) The registrar or a person nominated by the registrar may attend any meeting of the controlling body of a self-regulatory organisation or a committee of the controlling body and may take part, but may not vote, in all the proceedings at such meeting.

(2) A self-regulatory organisation must furnish the registrar with all notices, minutes and documents which are furnished to members of the controlling body of the self-regulatory organisation or a committee of the controlling body, as if the registrar were a member of that body or committee.

61. (1) In this section "rules" means exchange rules and depository rules.

(2) The registrar must as soon as possible after issuing a licence to a self-regulatory organisation, cause the rules, made by that organisation, to be published in the Gazette at the expense of the organisation concerned.

(3) (a) A self-regulatory organisation may, subject to this section, amend or suspend its rules.

(b) The registrar may, subject to this section, amend the rules or issue an interim rule.

(4) A proposed amendment (other than a suspension) of the rules must be submitted to the registrar for approval and must be accompanied by an explanation of the reasons for the proposed amendment.

(5) The registrar must as soon as possible after the receipt of a proposed amendment cause to be published in the Gazette, at the expense of the self-regulatory organisation, a notice of the proposed amendment calling upon all interested persons who have any objections to the proposed amendment, to lodge their objections with the registrar within a period of 14 days from the date of publication of the notice.

(6) If there are no such objections or if the registrar has considered the objections after consultation with the self-regulatory organisation and has decided to approve the proposed amendment in the form published in the Gazette in terms of subsection (5), the amendment comes into operation on a date determined by the registrar by notice in the Gazette.

(7) If the registrar decides, after consultation with the self-regulatory organisation and as a result of the objections, to amend the proposed rules as published in the Gazette in terms of subsection (5), the proposed rules thus amended must be published by the registrar in the Gazette and come into operation on a date determined by the registrar by notice in the Gazette.

(8) The registrar may—

(a) if it is necessary to achieve the objects of this Act referred to in section 2;

(b) after consultation with the self-regulatory organisation concerned; and

(c) with the consent of the Minister,

by notice in the Gazette amend the rules of that self-regulatory organisation.

(9) (a) Subject to the prior approval of the registrar, a self-regulatory organisation may suspend any of the rules of that organisation for a period not exceeding 30 days at a time after reasonable notice of the proposed suspension has been advertised in the Gazette.

(b) The registrar may, for the period of such suspension, issue an interim rule by notice in the Gazette to regulate the matter in question.

(c) Any contravention of or failure to comply with an interim rule has the same legal effect as a contravention of or failure to comply with a rule.

(10) (a) The rules may prescribe that a self-regulatory organisation, or a person to whom the self-regulatory organisation has delegated its disciplinary functions, may impose any one or more of the following penalties for any contravention thereof or failure to comply therewith:

(i) A reprimand;

(ii) censure;

(iii) a fine not exceeding R5 million;

(iv) suspension or cancellation of the right to be an authorised user or participant;

(vi) the payment of compensation to clients prejudiced by the contravention or failure.

(b) The rules may prescribe that—

(11) If a person fails to pay a fine or compensation referred to in subsection (10)(a) the self-regulatory organisation may file with the clerk or registrar of any competent court a statement certified by it as correct, stating the amount of the fine imposed or compensation payable, and such statement thereupon has all the effects of a civil judgment lawfully given in that court against that person in favour of the self-regulatory organisation for a liquid debt in the amount specified in the statement.

(12) This section does not prejudice the common law rights of a person aggrieved by a contravention or failure to comply with a rule to claim any amount except to the extent that any portion of such amount has been recovered under subsection (10).

(13) The rules must prescribe the purpose for which a fine referred to in subsection (10) must be appropriated.

62. No self-regulatory organisation, chief executive officer, other officer, employee or representative of a self-regulatory organisation, or any member of a controlling body or committee of a controlling body of a self-regulatory organisation, is liable for any loss sustained by or damage caused to any person as a result of anything done or omitted by—

(b) an authorised user or participant,

in the bona fide or negligent performance of any function under or in terms of this Act, the listing requirements of an exchange or the rules or directives of a self-regulatory organisation.

63. Despite any contrary provisions in any other law, a self-regulatory organisation may disclose information relating to or arising from its functions to any other self-regulatory organisation or supervisory authority, whether domestic or foreign, if such disclosure will further one or more of the objects of this Act referred to in section 2.

64. (1) A person may apply to the registrar for a licence to provide clearing house services to an exchange.

(2) An application for such a licence must be—

(a) made in the manner and contain the information prescribed by the registrar;

(b) accompanied by—

(3) The registrar must give notice of an application for a clearing house licence in two national newspapers at the expense of the applicant. The notice must state—

(a) the name of the applicant;

65. (1) An applicant for a clearing house licence must—

(c) maintain infrastructure for the sustained provision of clearing house services; and

(2) The registrar may prescribe any of the requirements referred to in subsection (1)(a), (c), and (d) in greater detail.

66. (1) The registrar may, after consideration of any objection received as a result of the notice referred to in section 64(3) and subject to the conditions which the registrar may consider appropriate, grant a clearing house licence if—

(a) the applicant complies with the relevant requirements of this Act; and

(2) The clearing house licence must specify whether the clearing house may provide both clearing and settlement services, or either clearing or settlement services, the main office of the clearing house in the Republic and the places where the clearing house may be operated, and that the clearing house may not be operated at any other place without the prior written approval of the registrar.

(3) A clearing house may at any time apply to the registrar for an amendment of the terms of the licence and the conditions subject to which the licence was granted.

67. Sections 49, 50 and 51 apply, with the changes required by the context, to the expiry, renewal, refusal of renewal, cancellation or suspension of a clearing house licence.

68. Section 62 applies with the changes required by the context to a clearing house.

69. (1) Two or more clearing houses may amalgamate or merge with one another or with any self-regulatory organisation, or any of the assets and liabilities of a clearing house may be transferred to or taken over by any other clearing house or self-regulatory organisation with the approval of the registrar and subject to the conditions that he or she may prescribe.

(2) Section 54 is applicable with the changes required by the context to an amalgamation or transfer referred to in subsection (1).

70. (1) The registrar must prescribe a code of conduct for authorised users.

(2) The code of conduct is binding on authorised users, their officers and employees and clients.

71. (1) The code of conduct must be based on the principle that an authorised user must—

(b) uphold the integrity of the securities services industry;

(e) act fairly in a situation of conflicting interests.

(2) The code of conduct must in particular provide for—

(b) proper record-keeping;

(c) avoidance of fraudulent and misleading advertising, canvassing and marketing;

72. In this Chapter, unless the context indicates otherwise—

"claims officer" means the person appointed by the board to be responsible for considering and determining claims in terms of section 77(8) and (9);

"deal" includes conveying or giving an instruction to deal;

"document" includes a book, record, security or account, and any information stored or recorded electronically, photographically, magnetically, mechanically, electro-mechanically or optically or in any other form;

"executive director" means a person appointed as such in terms of section 83(12);

"inside information" means specific or precise information, which has not been made public and which—

(a) is obtained or learned as an insider; and

"insider" means a person who has inside information—

(a) through—

"market abuse rules" means the rules made under section 82(2)(g);

"market corner" means any arrangement, agreement, commitment or understanding involving the purchasing, selling or issuing of securities listed on a regulated market—

"person" includes a partnership and any trust;

"public sector body" means—

(a) all spheres of the government of the Republic or of any other country or territory;

(b) the South African Reserve Bank; or

(c) the central bank of any country or territory outside the Republic,

but does not include the Public Investment Commissioners established by section 2 of the Public Investment Commissioners Act, 1984 (Act No. 45 of 1984);

"regional court" means a court established for a regional division under the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944);

"regulated market" means any market, whether domestic or foreign, which is regulated in terms of the laws of the country in which the market conducts business as a market for dealing in securities listed on that market.

73. (1) (a) An insider who knows that he or she has inside information and who deals directly or indirectly or through an agent, for his or her own account in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it, commits an offence.

(b) An insider is, despite paragraph (a), not guilty of any offence contemplated in that paragraph if such insider proves on a balance of probabilities that he or she—

(2) (a) An insider who knows that he or she has inside information and who deals, directly or indirectly, for any other person in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it, commits an offence.

(b) An insider is, despite paragraph (a), not guilty of any offence contemplated in that paragraph if such insider proves on a balance of probabilities that he or she—

(3) (a) An insider who knows that he or she has inside information and who discloses the inside information to another person, commits an offence.

(b) An insider is, despite paragraph (a), not guilty of the offence contemplated in that paragraph if such insider proves on a balance of probabilities that he or she disclosed the inside information because it was necessary to do so for the purpose of the proper performance of the functions of his or her employment, office or profession in circumstances unrelated to dealing in any security listed on a regulated market and that he or she at the same time disclosed that the information was inside information.

(4) An insider who knows that he or she has inside information and who encourages or causes another person to deal or discourages or stops another person from dealing in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it, commits an offence.

74. (1) For the purposes of the definition of "inside information", information is regarded as having been made public in circumstances, which include, but are not limited to, the following:

(d) when the information is derived from information which has been made public.

(2) Inside information which would otherwise be regarded as having been made public must still be so regarded even though—

(b) it is communicated only on payment of a fee; or

(c) it is only published outside the Republic.

75. (1) No person may—

(2) A person who contravenes subsection (1) commits an offence.

(3) Without limiting the generality of subsection (1), the following are deemed to be manipulative, improper, false or deceptive trading practices:

(f) effecting or assisting in effecting a market corner;

Provided that the employment of price stabilising mechanisms that are regulated in terms of the rules or listing requirements of an exchange does not constitute a manipulative, improper, false or deceptive trading practice for the purposes of this section or insider trading for the purposes of section 73 and 77.

(4) A purchase or sale of securities listed on a regulated market does not, for the purposes of subsection (3)(a), involve a change in the beneficial ownership if a person who has a beneficial interest in those securities before the purchase or sale, or a person associated with that person in relation to those securities, directly or indirectly holds a beneficial interest in those securities after the purchase or sale.

76. (1) No person may, directly or indirectly, make or publish in respect of listed securities, or in respect of the past or future performance of a public company—

(2) A person who contravenes subsection (1) commits an offence.

77. (1) An insider who knows that he or she has inside information and who—

is liable, at the suit of the board in any court of competent jurisdiction, to pay to the board—

(i) the equivalent of the profit or loss referred to in paragraph (b);

(iii) interest; and

(iv) costs of suit on such scale as may be determined by the court.

(2) An insider who knows that he or she has inside information and who—

is, subject to subsection (5), liable, at the suit of the board in any court of competent jurisdiction, to pay to the board—

(i) the equivalent of the profit or loss referred to in paragraph (b);

(iii) interest;

(iv) the commission or consideration received for such dealing; and

(v) cost of suit on such scale as may be determined by the court.

(3) An insider who knows that he or she has inside information and who—

(a) discloses the inside information to any other person; and

(b) fails to prove on a balance of probabilities the defence set out in section 73(3)(b),

is, subject to subsection (5), liable, at the suit of the board in any court of competent jurisdiction, to pay to the board—

(iii) interest;

(iv) the commission or consideration received for such disclosure; and

(v) cost of suit on such scale as may be determined by the court.

(4) An insider who knows that he or she has inside information and who encourages or causes any other person to deal in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it, is, subject to subsection (5), liable, at the suit of the board in any court of competent jurisdiction, to pay to the board—

(c) interest;

(d) the commission or consideration received for such encouragement; and

(e) cost of suit on such scale as may be determined by the court.

(5) If the other person referred to in subsections (2), (3) and (4) is liable as an insider in terms of subsection (1), the insider referred to in subsections (2), (3) and (4) is jointly and severally liable together with that other person to pay the amounts set out in subsection (2)(i), (iii) and (v), (3)(i), (iii) and (v), or (4)(a), (c) and (d), as the case may be.

(6) The profit made, or the profit that would have been made if the listed securities had been sold at any stage, or the loss avoided, is determined in the discretion of the court which must have regard to factors such as the consideration for the dealing referred to in subsections (2), (3) and (4), the time between the relevant dealing and the publication of the inside information and any other relevant factors.

(7) Any amount recovered by the board as a result of the proceedings contemplated in this section or as a result of an agreement of settlement must be deposited by the board directly into a specially designated trust account and—

(c) any amount not paid out in terms of paragraph (b) accrues to the board.

(8) The balance referred to in subsection (7)(b) must be distributed to all claimants who—

(b) prove to the reasonable satisfaction of the claims officer that—

(9) Subject to subsection (10), a claimant must receive an amount—

whichever is the lesser, unless the claims officer in his or her discretion determines that the claimant should receive a lesser or no amount.

(10) An amount awarded in proceedings contemplated in section 85 must be deducted from any amount claimed in terms of this section.

(11) The common law principles of vicarious liability apply to the civil liability established by this section.

78. (1) The directorate may withdraw, abandon or compromise any civil proceedings instituted in terms of section 77 but any agreement of compromise must be made an order of court and the amount of any payment made in terms of such compromise must be made public.

(2) Where civil proceedings have not been instituted, any agreement of compromise may, on application to the court by the board after due notice to the other party or parties, be made an order of court and the parties to the agreement and the amount of any payment made in terms of such agreement must be made public.

79. (1) Only a High Court or a regional court has jurisdiction to try any offence referred to in sections 73, 75 and 76 and to impose a penalty up to the maximum set out in section 115(a).

(2) For the purposes of subsection (1) and sections 77 and 81 a court of competent jurisdiction includes the court within whose jurisdiction the regulated market has its principal place of business or head office or in which any element of the dealing or offence occurred and it is not necessary to make any attachment to found or confirm jurisdiction.

80. (1) In the assessment of any penalty in terms of section 115(a), the court must take into account any award previously made under section 77 which arises from the same cause.

(2) In the assessment of any award under section 77, the court must take into account any penalty, which arises from the same cause, previously imposed in terms of section 115(a).

81. (1) On application by the board, a court may order the attachment of assets or evidence to prevent their concealment, removal, dissipation or destruction.

(2) The board may institute any interdict or interlocutory proceedings against a person who made a profit or avoided a loss or whom the board reasonably believes may have made a profit or avoided a loss as contemplated in section 77.

(3) Such proceedings may include proceedings to obtain an interdict to prevent the disposal of assets or of evidence.

82. (1) The board is responsible for the supervision of compliance with this Chapter.

(2) In addition to its powers in terms of the Financial Services Board Act the board may, subject to section 83—

(b) institute such proceedings as are contemplated in this Chapter;

(c) administer the proof of claims and distribution of payments in terms of section 77;

(g) make market abuse rules after consultation with the directorate—

(3) (a) A warrant contemplated in subsection (2)(f) may be issued, on application by the board, by a judge or magistrate who has jurisdiction in the area where the premises in question are located.

(b) Such a warrant may only be issued if it appears from information under oath that there is reason to believe that a document relating to the matter being investigated in terms of subsection (2)(a), is kept at the premises in question.

(c) Any person from whom a document has been seized under subsection (2)(f), or such person’s authorised representative, may examine such document and make extracts therefrom under the supervision of the board during normal office hours.

(d) Any person who has been duly summoned under subsection (2)(d) and who, without sufficient cause—

(i) fails to appear at the time and place specified in the summons;

(ii) fails to remain in attendance until excused by the board from further attendance;

commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

(4) The board may, subject to the conditions it may determine, delegate the power to investigate an alleged contravention of this Chapter to any fit person and such person has the powers set out in subsection (2)(d), (e) and (f).

(5) The board must cause the publication in the Gazette of a notice of any proposed market abuse rule or amendment of such a rule, calling upon all interested persons who have any objections to the proposed rule or amendment, to lodge their objections with the board within a period of 14 days from the date of publication of the notice.

(6) If there are no such objections or if the board has, after consultation with the directorate, considered the objections and has decided to introduce the proposed rule or amendment in the form published in the Gazette in terms of subsection (5), the rule or amendment comes into operation on a date determined by the board by notice in the Gazette.

(7) If the board has, after considering such objections, decided after consultation with the directorate to amend the proposed rule or amendment as published in the Gazette in terms of subsection (5), the proposed rule or amendment thus amended must be published by the board in the Gazette and comes into operation on a date determined by the board by notice in the Gazette.

(8) A rule made under subsection (2) is binding on regulated persons and members of the public.

(9) If the Director of Public Prosecutions declines to prosecute for an alleged offence in terms of this Chapter, the board may prosecute in respect of such offence in any court competent to try that offence and section 8(2) and (3) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), does not apply to such a prosecution.

(10) The board must, at the request of the directorate, investigate any matter and summon and interrogate any person in respect of the matters referred to in subsection (2)(a), (d) and (e).

83. (1) (a) The Insider Trading Directorate established by section 12 of the Insider Trading Act continues to exist, despite the repeal of that Act by section 117.

(b) As from the commencement of this Act the Insider Trading Directorate referred to in paragraph (a) is known as the Directorate of Market Abuse and a reference to the Insider Trading Directorate in any law must, unless clearly inappropriate, be construed as a reference to the Directorate of Market Abuse.

(c) The directorate exercises the powers of the board—

(i) to institute any civil proceedings as contemplated in this Chapter;

(ii) to investigate any matter relating to an offence referred to in section 82(2)(a); and

(iii) contemplated in section 82(2)(d), (e) and (f),

in the name of the board.

(d) The directorate is not intended to act as an administrative body when exercising its powers referred to in paragraph (c).

(e) The directorate must—

(2) (a) The directorate consists of the chairperson and the other members and alternate members appointed by the Minister.

(b) A member and alternate member hold office for such period, not exceeding three years, as the Minister may determine at the time of his or her appointment and is eligible for reappointment upon the expiry of his or her term of office: Provided that if on the expiry of the term of office of a member reappointment is not made or a new member is not appointed, the former member must remain in office for a further period of not more than six months.

(c) The Minister may remove the chairperson from his or her office or terminate the membership of any other member on good cause shown and after having given the chairperson or member, as the case may be, sufficient opportunity to show why he or she should not be removed or why his or her membership should not be terminated.

(3) The Minister must appoint as members of the directorate—

(a) the executive officer of the board or his or her deputy, or both;

(b) one person and an alternate from each of the regulated markets in the Republic;

(c) one commercial lawyer of appropriate experience and an alternate;

(d) one accountant of appropriate experience and an alternate;

(f) one person of appropriate experience and an alternate from the banking industry;

(j) two other persons of appropriate experience and alternates.

(4) The persons referred to in subsection (3) are nominated by reason of their availability and knowledge of financial markets and may not be practising authorised users.

(5) The directorate must designate from its members a deputy chairperson who performs the functions of the chairperson when the office of chairperson is vacant or when the chairperson is unable to perform his or her functions.

(6) The members of the directorate may co-opt one or more persons as additional members of the directorate.

(7) All members of the directorate, other than the additional members, have one vote in respect of matters considered by the directorate, but an alternate member only has a vote in the absence from a meeting of the member whom the alternate is representing.

(8) The meetings of the directorate are held at such times and places as the chairperson may determine, but four members of the directorate may by notice in writing to the chairperson of the directorate demand that a meeting of the directorate be held within seven business days of such notice.

(9) The chairperson must determine the procedure of a meeting of the directorate.

(10) The decision of a majority of the members of the directorate constitutes the decision of the directorate.

(11) No proceedings of the directorate are invalid by reason only of the fact that a vacancy existed on the directorate or that any member was not present during such proceedings or any part thereof.

(12) The directorate is, in the performance of its functions, assisted by an executive director, appointed by the board after consultation with the directorate, who may attend all meetings of the directorate but may not vote at such meetings.

84. The costs of performing the functions of the board and those of the directorate in terms of this Chapter are paid out of levies imposed by the board on exchanges under section 15A of the Financial Services Board Act.

85. Nothing in this Chapter prejudices the common law rights of any person aggrieved by any dealing or offence contemplated in this Chapter to claim any amount save to the extent that any portion of such amount has been recovered by such person under section 77.

86. (1) No person may, subject to subsections (3) and (4), disclose to any other person any information acquired in the performance of functions under this Chapter.

(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

(3) Disclosure of the information referred to in subsection (1) does not constitute a contravention of that subsection if made by—

(a) a person for the purpose of performing functions in terms of this Chapter;

(b) a person for the purpose of any legal proceedings under this Chapter;

(c) a person when required to do so by a court or any other law;

(e) the directorate, if it is in the public interest; or

(4) The directorate may share information concerning any matter dealt with in terms of this Chapter with the institutions which have nominated persons to the directorate, the Securities Regulation Panel constituted in terms of section 440B of the Companies Act, the South African Reserve Bank, the Public Accountants’ and Auditors’ Board constituted in terms of the Public Accountants’ and Auditors’ Act, all self-regulatory organisations, the Financial Intelligence Centre established by the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001), the National Treasury, the Minister and with the persons, whether inside the Republic or elsewhere, responsible for regulating, investigating or prosecuting insider trading, prohibited trading practices and other market abuses.

87. (1) Despite the repeal of section 440F of the Companies Act, and the Insider Trading Act, the board is responsible for investigating alleged offences in terms of that section and the latter Act that were committed before the repeal, and for that purpose it has the powers and duties referred to in section 82.

(2) The Securities Regulation Panel constituted in terms of section 440B of the Companies Act must disclose to the board all information in its possession relating to an alleged offence in terms of this Chapter.

(3) The board may disclose information received in terms of subsection (2) to any of the institutions or persons referred to in section 86(3).

88. (1) A regulated person must appoint and at all times have an auditor who engages in public practice and who has no direct or indirect financial interest in the business in respect of which the auditor is so appointed.

(2) No firm of auditors, or a member of such firm, in which a regulated person or director, officer or employee of a regulated person has any financial interest, may be appointed as an auditor of a regulated person.

(3) The registrar must approve the appointment of the auditor of every self-regulatory organisation and clearing house and may withdraw the approval if it is necessary.

89. A regulated person must—

90. (1) The auditor must, in conformity with generally accepted auditing standards, examine the accounting records and annual financial statements and be satisfied that the accounting records comply with the requirements of this Act and that the financial statements are properly drawn up so as to fairly present the financial position, cash flows and the results of the operations of the regulated person.

(2) When an auditor of a regulated person has conducted an audit in terms of subsection (1), the auditor must, subject to subsection (3), report to the regulated person or to the self-regulatory organisation if the auditor is the auditor of an authorised user or participant, and on request to the registrar—

(3) If the auditor is unable to make such a report or to make it without qualification, the auditor must include in the auditor’s report a statement explaining the facts or circumstances that prevented the auditor from making a report or from making it without qualification.

(4) When the auditor of a regulated person furnishes copies of a report or other document or particulars contemplated in section 20(5)(b) of the Public Accountants’ and Auditors’ Act, the auditor must, despite any contrary law, also furnish a copy thereof to the registrar, if the auditor is the auditor of a self-regulatory organisation or clearing house, or to the self-regulatory organisation in question, if the auditor is the auditor of an authorised user or participant.

(5) If an auditor’s appointment is terminated for any reason, including by way of resignation, the auditor must—

(6) An auditor must inform the registrar, or the self-regulatory organisation, as the case may be, in writing of any matter relating to the affairs of the regulated person of which the auditor became aware in the performance of the auditor’s functions and which, in the opinion of the auditor, is irregular or may prejudice the regulated person’s ability to meet its liabilities at all times.

91. (1) The furnishing, in good faith, by an auditor of a report or information in terms of this Act does not constitute a contravention of a provision of a law or a breach of a provision of a code of professional conduct to which the auditor is subject.

(2) The failure, in good faith, by an auditor to furnish a report or information in terms of this Act does not confer upon any person a right of action against the auditor which, but for that failure, that person would not have had.

92. (1) The registrar may at any time by written notice direct a regulated person to have its accounts, records and financial statements audited and to submit the results of such an audit to the registrar within the time specified in the notice.

(2) A person who, pursuant to subsection (1), gives information, an explanation or access to records knowing that the information, explanation or records are false or misleading, commits an offence.

93. (1) If the registrar receives a complaint, charge or allegation that a person (hereinafter referred to as the respondent) who provides securities services (whether the respondent is licensed or authorised in terms of this Act or not) is contravening or is failing to comply with any provision of this Act, or if the registrar has reason to believe that such a contravention or failure is taking place, the registrar may investigate the matter by—

(a) directing that respondent in writing to—

(2) If a respondent is questioned in terms of subsection (1)(a)(ii) and is obliged to answer questions which may incriminate him or her or, if he or she is to be tried on a criminal charge, may prejudice him or her at such trial, no evidence regarding any such questions and answers is admissible in any criminal proceedings, except in criminal proceedings for perjury.

94. After an investigation or inspection has been done under section 93, the registrar may in order to achieve the objects of this Act referred to in section 2—

(a) if the respondent is a company—

95. (1) The registrar may impose a fine in the case of any failure by a regulated person to submit to the registrar within any period specified by or under this Act any statement, report, return or other document or information required by or under this Act to be so submitted, not exceeding R1 000 or such other amount prescribed by the registrar for every day during which the failure continues.

(2) The registrar must, before imposing a fine, by written notice to the regulated person—

(a) inform the regulated person of the registrar’s intention to impose a fine;

(b) specify the particulars of the alleged failure;

(c) set out the reasons for the intended imposition of a fine;

(d) specify the amount of the fine intended to be imposed; and

(3) If the registrar, after consideration of representations made by the regulated person, decides to impose a fine, the registrar must by written notice inform the regulated person that, not later than 30 days after the date of the notice, the regulated person may—

(a) pay the fine; or

(4) If a regulated person fails to pay the fine or note an appeal in terms of subsection (3), the registrar may file with the clerk or registrar of any competent court a statement certified by him or her as correct, stating the amount of the fine imposed on the regulated person, and such statement thereupon has all the effects of a civil judgment lawfully given in that court in favour of the board for a liquid debt in the amount specified in the statement.

96. (1) If a court—

the court may (in addition, in a case referred to in paragraph (a), to any sentence it may impose) declare the person concerned to be disqualified, for an indefinite period or for a period specified by the court, from carrying on business or being employed in a capacity of trust.

(2) The court may, on good cause shown, vary or revoke a declaration made under subsection (1).

(3) The registrar of the court that has made a declaration under subsection (1) or varied or revoked a declaration under subsection (2), must as soon as possible notify the registrar, and the self-regulatory organisation concerned, thereof.

(4) No declaration made under subsection (1) affects any power of a self-regulatory organisation to take disciplinary action in terms of its rules against the person concerned.

97. The board must establish an enforcement committee which—

(a) is a committee of record; and

(b) must perform its functions in accordance with this Act.

98. (1) The board must, on the date that this Act comes into operation, appoint as members of the enforcement committee so many persons as the board may consider necessary: Provided that a minimum of two members are persons qualified in law.

(2) The enforcement committee may, as the need arises and on an ad hoc basis, co-opt one or more persons with appropriate knowledge and experience as additional members of the enforcement committee.

(3) No member of the enforcement committee who was involved in the investigation of a matter or who has an interest in that matter may participate in a decision on that matter by the enforcement committee.

(4) The board must designate from the members of the enforcement committee a chairperson and a deputy chairperson who performs the functions of the chairperson when the office of chairperson is vacant or when the chairperson is unable to perform his or her functions.

(5) The board may at any time reconstitute the enforcement committee but a reconstitution may not affect the membership of a panel referred to in section 100 during the course of proceedings before such panel.

99. (1) If the registrar or the directorate refers a matter to the enforcement committee under section 94 the enforcement committee must deal with the matter in accordance with sections 102 to 105 to the extent that those sections are applicable to the matter in question.

(2) The enforcement committee must submit to the board an annual report—

(b) within the period; and

(c) containing the information,

specified by the board.

100. (1) The chairperson of the enforcement committee, with the assistance of employees of the board designated by the registrar, is responsible for managing the caseload of the enforcement committee and must assign each matter referred to the enforcement committee to a panel composed of the chairperson or deputy chairperson and not less than two other members of the enforcement committee who are suitably qualified to decide on the matter in question.

(2) A panel determines its own procedure for the performance of its functions.

(3) The proceedings of a panel are open to the public.

(4) The decision of the panel on a matter assigned to it must be in writing and include reasons for the decision.

(5) The decision of the majority of the members of a panel is the decision of the enforcement committee.

101. (1) The referral of a matter to the enforcement committee in terms of section 94(e), may at any time be withdrawn by the registrar or the directorate, as the case may be.

(2) The power of the board to institute civil proceedings in a court under section 77 against a person who has contravened section 73, is, subject to section 105(5), not affected by the referral of a matter to the enforcement committee in terms of section 94(e).

102. (1) The referral of a matter to the enforcement committee, must be accompanied by a report on the investigation or inspection referred to in section 93, or on an investigation done under Chapter VIII, as the case may be, and all other evidence relevant to the alleged contravention or failure and in the possession of the registrar or the directorate.

(2) The enforcement committee must serve a copy of the report and evidence referred to in subsection (1), together with particulars of the alleged contravention or failure to comply with this Act, on the respondent (which may include an individual member of the controlling body of a regulated person) and direct him or her to respond thereto by way of affidavit within a time specified by the enforcement committee.

(3) The panel to which a specific matter has been assigned must consider the documentary evidence before it without hearing further evidence, subject to subsection (4).

(4) The panel may, in exceptional circumstances and when it is necessary to come to a just decision, by written notice summon a person to appear before the panel to be questioned or to produce a document specified in the summons.

(5) A legal representative may assist a person summoned in terms of subsection (4) at such person’s own expense.

(6) If a person is questioned in terms of subsection (4) and is obliged to answer questions which may incriminate him or her or, if he or she is to be tried on a criminal charge, may prejudice him or her at such trial, no evidence regarding any such questions and answers is admissible in any criminal proceedings, except in criminal proceedings for perjury.

103. (1) If a respondent admits that he or she has committed the contravention or failure of which the respondent is charged and the panel and the respondent agree on the appropriate amount of an administrative penalty, the panel may—

(a) impose that penalty; and

and the respondent must pay the penalty to the board and take the remedial action within the time specified by the panel.

(2) If the respondent fails to pay the agreed penalty or to take the remedial action instructed within the specified time, the registrar or directorate, as the case may be, may file with the clerk or registrar of any competent court a statement certified as correct, stating the amount of the penalty imposed on the respondent and the contents of the instruction, and such statement thereupon has all the effects of a civil judgment lawfully given in that court in favour of the board.

104. (1) If a panel is satisfied that a respondent has contravened or failed to comply with this Act and—

(a) the respondent did not admit as contemplated in section 103; or

the enforcement committee may cause to be delivered by hand to that respondent a written notice that must contain the particulars contemplated in subsection (2).

(2) A notice referred to in subsection (1) must—

(a) specify the name and address of the respondent;

(b) specify the particulars of the contravention or failure;

(c) set out the reasons for the panel’s decision to impose an administrative penalty;

(3) If the respondent fails to comply with the requirements of a notice referred to in subsection (2), the registrar may file with the clerk or registrar of any competent court a statement certified as correct, stating the amount of the administrative penalty imposed on the respondent and the contents of the instruction, and such statement thereupon has all the effects of a civil judgment lawfully given in that court in favour of the board.

(4) If a respondent is a member of the controlling body of a regulated person, the panel may direct that an administrative penalty imposed under section 103(1)(a) or subsection (2) be paid by the respondent in his or her personal capacity.

(5) A panel may make such an order for the payment of the costs of the proceedings of the enforcement committee as it may consider fair in the circumstances of each case.

(6) The enforcement committee may not impose a penalty contemplated in this section if the respondent has been charged with a criminal offence in respect of the same set of facts.

(7) If a court assesses the penalty to be imposed on a person convicted of an offence in terms of this Act, the court must take into account any administrative penalty imposed under this section or section 103(1)(a) in respect of the same set of facts.

(8) An administrative penalty imposed and paid in terms of this section does not constitute a previous conviction as contemplated in Chapter 27 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(9) When determining an appropriate administrative penalty a panel must consider the following factors:

(a) The nature, duration, seriousness and extent of the contravention or failure;

(b) the extent to which the contravention or failure was deliberate or reckless;

(c) any loss or damage suffered as a result of the contravention or failure;

(d) the level of profit derived from the contravention or failure;

(e) whether the respondent has previously been found in contravention of this Act;

(f) any other factor that the panel considers relevant.

105. (1) If a panel is satisfied that a respondent has contravened or failed to comply with section 73 the panel may require the respondent to pay to the board a compensatory amount.

(2) The procedure prescribed by sections 103 and 104 in respect of the imposition of administrative penalties is with the changes required by the context, and subject to subsection (3), applicable when a panel requires the respondent to pay a compensatory amount.

(3) Section 77 is with the changes required by the context applicable to the determination and distribution of a compensatory amount.

(4) Such compensatory amount is composed of the equivalent of the profit or loss, the penalty for compensatory and punitive purposes, interest, and where applicable, commission or consideration, as if it were determined under section 77.

(5) No civil proceedings in respect of the same set of facts may be instituted under section 77 against a respondent if the respondent has paid a compensatory amount in terms of this section.

106. (1) Subject to subsection (3), no member of the enforcement committee or employee of the board may disclose to any person any information acquired in the performance of the functions of the enforcement committee and which relates to the proceedings or a decision of the enforcement committee except—

(a) for the purpose of the performance of functions in terms of this Act;

(b) when required to do so by a court or any law;

(c) to the extent that such information has already been made public; or

(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

(3) If a respondent does not appeal against a decision of the enforcement committee within the period specified in terms of section 104(2)(e), the registrar must make public the decision of the enforcement committee, unless such publication will be contrary to the objects of this Act referred to in section 2, or unless there are exceptional circumstances that justify the preservation of the confidentiality of the decision.

107. (1) An order for the winding-up or sequestration of the estate of a regulated person may be granted by the court on the application of—

(a) the regulated person;

(b) one or more of the regulated person’s creditors;

(d) jointly, any of or all the parties mentioned in paragraphs (a), (b) and (c);

(e) the provisional judicial manager or final judicial manager of the regulated person;

(f) the provisional curator or curator of a regulated person; or

(g) the registrar.

(2) A regulated person, which is a company or other corporate body, may be wound-up by the court, subject to section 110, according to the Companies Act, and the estate of a regulated person who is a natural person or partnership, may be sequestrated according to the Insolvency Act, 1936 (Act No. 24 of 1936).

(3) For the purposes of subsection (2)—

(4) An order for the winding-up or sequestration of a regulated person may not be made unless the court is satisfied that—

108. (1) The court may grant a judicial management order in respect of a regulated person which is a company or other corporate body on the application of the persons, except a provisional or final judicial manager or curator, referred to in section 107, and section 107(4)(a) and (b) applies, with the changes required by the context, to an application for a judicial management order.

(2) The Companies Act applies, subject to section 110, to the judicial management of a regulated person that is a company.

109. (1) The court may appoint a curator in terms of section 5 of the Financial Institutions (Protection of Funds) Act, in respect of any regulated person.

(2) The Financial Institutions (Protection of Funds) Act applies to the management and control of a regulated person by a curator appointed under this section.

110. Despite the provisions of the Companies Act, the Master of the High Court may only after consultation with the registrar appoint a liquidator or judicial manager in respect of a regulated person.

111. (1) A person aggrieved by a decision of—

(i) the claims officer referred to in Chapter VIII,

may appeal to the board of appeal on the conditions determined by or under section 26 of the Financial Services Board Act and subject to this section.

(2) The board of appeal must conduct its hearings in public.

(3) In an appeal against a decision of the enforcement committee the registrar must act as the respondent.

(4) The registrar may appeal to the board of appeal against a decision of a self-regulatory organisation if the self-regulatory organisation fails to respond to a written request by the registrar to review the decision within a reasonable period.

(5) In deciding an appeal the board of appeal must take into account –

(a) the reasons for the decision appealed against;

(b) the grounds of appeal;

(d) any other information at the disposal of the board of appeal.

(6) The board of appeal must within a reasonable time—

(a) confirm, amend or set aside the decision appealed against; and

(b) make such award as to costs as it may consider appropriate.

(7) (a) The decision of the board of appeal is binding on the parties to the appeal.

(b) Neither this Act nor the rules of a self-regulatory organisation may be construed so as to limit the right of any interested person to have a decision of a self-regulatory organisation or the board of appeal reviewed by a court of competent jurisdiction, subject to the obligation on such person to have first exhausted his or her remedies in terms of this Act.

112. A record, including an electronic record, purporting to have been made in the ordinary course of the business of a regulated person, or a copy or printout of or an extract from such record certified to be correct by an officer in the service of such regulated person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under this Act, the rules of a self-regulatory organisation or any other law or the common law, admissible in evidence against any person and prima facie proof of the facts contained in such record, copy, printout or extract.

113. The Minister may make regulations regarding—

114. (1) The Minister may prescribe fees after consultation with the registrar in respect of matters contemplated in this Act and, in relation to such fees as well as fees payable in terms of this Act, the person by whom the fee must be paid, the manner of payment thereof and, where necessary, the interest payable in respect of overdue fees.

(2) Fees payable in terms of this Act, and interest so payable in respect of overdue fees may be recovered by the registrar by civil action in a competent court.

115. A person who—

116. (1) The licence, registration or authorisation of a regulated person who immediately before the date of commencement of this Act was licensed, registered or authorised under an act repealed by this Act—

(2) The repeal by this Act of the Financial Markets Control Act, 1989 (Act No. 55 of 1989), does not affect the recognition of a clearing house under the latter Act: Provided that such a clearing house must apply for a clearing house licence in terms of section 64 within six months from the date of commencement of this Act.

(3) The rules of a self-regulatory organisation made under an act repealed by this Act and in force immediately before the date of commencement of this Act continue in force so far as they are not inconsistent with this Act: Provided that a self-regulatory organisation must, within six months from the date of commencement of this Act, amend or replace its rules so as to comply with the requirements of this Act.

(4) Subsection (3) applies with the changes required by the context to the listing requirements of an exchange.

117. The laws referred to in the Schedule are amended or repealed to the extent specified in the third column thereof.

118. This Act is called the Securities Services Act, 2004, and comes into operation on a date fixed by the President by proclamation in the Gazette.