A comparative analysis of the enforcement of market abuse provisions
- Authors: Chitimira, Howard
- Date: 2012
- Subjects: Corporation law -- South Africa , Insider trading in securities -- South Africa , Securities -- South Africa , Efficient market theory , Securities fraud
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10240 , http://hdl.handle.net/10948/d1015008
- Description: Market abuse practices may directly or indirectly give rise to diverse problems such as inaccurate stock market prices, low public investor confidence, reduced market integrity and poor efficiency in the affected financial markets. This thesis reveals that three major forms of market abuse, namely insider trading, prohibited trading practices (trade-based market manipulation) and the making or publication of false, misleading or deceptive statements, promises and forecasts relating to listed securities (disclosure-based market manipulation) are prohibited in South Africa. However, although South Africa has had market abuse legislation for about 30 years, and must be commended for its great effort to enhance market integrity by combating market abuse practices, the enforcement of such legislation is still problematic. Moreover, in spite of the fact that there is no empirical data or accurate figures quantifying the occurrence and extent of market abuse activities in the South African financial markets, this thesis submits that market abuse practices are still to be completely eradicated. Accordingly, this thesis suggests that the aforementioned problem might have been aggravated by inter alia, various gaps, flaws and/or inconsistent implementation and enforcement of the market abuse legislation in South Africa. To this end, the anti-market abuse enforcement framework under the Securities Services Act 36 of 2004 is analysed to investigate its adequacy. The co-operation and role of the Financial Services Board, the courts, the Directorate of Market Abuse and other relevant stakeholders is also examined and discussed. Moreover, the co-operation between the Financial Services Board and similar international agencies is discussed to gauge its effectiveness in relation to the combating of cross-border market abuse practices. The adequacy of the awareness and preventative measures in place to curb market abuse practices is also investigated to determine whether such measures are robust enough to combat other new challenges that were posed by the 2007 to 2009 global financial crisis. Furthermore, a comparative analysis is undertaken of the enforcement of the market abuse prohibition in other jurisdictions, namely the United States of America, the United Kingdom, the European Union and Australia. This was done to investigate the relevant lessons that can be learnt or adopted from these jurisdictions. The thesis further discusses the adequacy of the recently introduced provisions of the Financial Markets Bill as well as the subsequent market abuse provisions of the Financial Markets Bill 2012. The thesis highlights that the aforementioned Bills are positive attempts by the policy makers to improve the enforcement of the market abuse provisions in South Africa. Nonetheless, the thesis reveals that most of the shortcomings contained in the Securities Services Act 36 of 2004 were duplicated in the Financial Markets Bill and the Financial Markets Bill 2012. In light of this, it remains to be seen whether the market abuse provisions contained in the Financial Markets Bill and/or the Financial Markets Bill 2012 will improve the combating of market abuse practices in South Africa. Consequently, it is hoped that the relevant market abuse provisions of the Securities Services Act 36 of 2004, the Financial Markets Bill and/or the Financial Markets Bill 2012 will be comprehensively reviewed in regard to the recommendations made in this thesis. To this end, the thesis proposes a viable anti-market abuse model and policy framework and sets out both policy objectives and provisions which policy makers could use to strengthen some of the market abuse provisions in South Africa.
- Full Text:
- Date Issued: 2012
- Authors: Chitimira, Howard
- Date: 2012
- Subjects: Corporation law -- South Africa , Insider trading in securities -- South Africa , Securities -- South Africa , Efficient market theory , Securities fraud
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10240 , http://hdl.handle.net/10948/d1015008
- Description: Market abuse practices may directly or indirectly give rise to diverse problems such as inaccurate stock market prices, low public investor confidence, reduced market integrity and poor efficiency in the affected financial markets. This thesis reveals that three major forms of market abuse, namely insider trading, prohibited trading practices (trade-based market manipulation) and the making or publication of false, misleading or deceptive statements, promises and forecasts relating to listed securities (disclosure-based market manipulation) are prohibited in South Africa. However, although South Africa has had market abuse legislation for about 30 years, and must be commended for its great effort to enhance market integrity by combating market abuse practices, the enforcement of such legislation is still problematic. Moreover, in spite of the fact that there is no empirical data or accurate figures quantifying the occurrence and extent of market abuse activities in the South African financial markets, this thesis submits that market abuse practices are still to be completely eradicated. Accordingly, this thesis suggests that the aforementioned problem might have been aggravated by inter alia, various gaps, flaws and/or inconsistent implementation and enforcement of the market abuse legislation in South Africa. To this end, the anti-market abuse enforcement framework under the Securities Services Act 36 of 2004 is analysed to investigate its adequacy. The co-operation and role of the Financial Services Board, the courts, the Directorate of Market Abuse and other relevant stakeholders is also examined and discussed. Moreover, the co-operation between the Financial Services Board and similar international agencies is discussed to gauge its effectiveness in relation to the combating of cross-border market abuse practices. The adequacy of the awareness and preventative measures in place to curb market abuse practices is also investigated to determine whether such measures are robust enough to combat other new challenges that were posed by the 2007 to 2009 global financial crisis. Furthermore, a comparative analysis is undertaken of the enforcement of the market abuse prohibition in other jurisdictions, namely the United States of America, the United Kingdom, the European Union and Australia. This was done to investigate the relevant lessons that can be learnt or adopted from these jurisdictions. The thesis further discusses the adequacy of the recently introduced provisions of the Financial Markets Bill as well as the subsequent market abuse provisions of the Financial Markets Bill 2012. The thesis highlights that the aforementioned Bills are positive attempts by the policy makers to improve the enforcement of the market abuse provisions in South Africa. Nonetheless, the thesis reveals that most of the shortcomings contained in the Securities Services Act 36 of 2004 were duplicated in the Financial Markets Bill and the Financial Markets Bill 2012. In light of this, it remains to be seen whether the market abuse provisions contained in the Financial Markets Bill and/or the Financial Markets Bill 2012 will improve the combating of market abuse practices in South Africa. Consequently, it is hoped that the relevant market abuse provisions of the Securities Services Act 36 of 2004, the Financial Markets Bill and/or the Financial Markets Bill 2012 will be comprehensively reviewed in regard to the recommendations made in this thesis. To this end, the thesis proposes a viable anti-market abuse model and policy framework and sets out both policy objectives and provisions which policy makers could use to strengthen some of the market abuse provisions in South Africa.
- Full Text:
- Date Issued: 2012
Enlarging the place of human rights and development in international trade regulation: an evaluation of the problems and prospects of incorporating a social clause in the legal framework of the World Trade Organization
- Authors: Warikandwa, Tapiwa Victor
- Date: 2012
- Subjects: Social Clause -- Development -- International Trade Regulation -- Human Rights -- World Trade Organization
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11120 , http://hdl.handle.net/10353/d1015224
- Description: An agreement on the inclusion of a social clause in the World Trade Organization‟s (WTO) multilateral trade agreements largely depends on reassuring objecting member states that such inclusion will contribute to an improved recognition of core labour standards in trade, without altering the competitive advantage of one trading partner over another. Reassurance must be given to the effect that incorporating a social clause in the WTO legal framework would not be used as a trade restricting mechanism which might have direct, negative effects on the development of countries worldwide. Such an argument may not be won easily from a legal and economic perspective. There is an omnipresent conflict at the international level between the basic values underlying multilateral trade agreements and principles governing the protection of core labour standards. On the one hand, supporting the stance of free trade is the fundamental force of profit maximization while on the other hand, and in direct opposition to this market driven value system, are human rights-based calls for recognising core labour standards in employment matters related to trade. Increased international trade is a powerful tool for tackling poverty and social misery worldwide. It could thus be important to adopt a legal framework in the multilateral trade system to harness potential opportunities a trade-labour linkage could provide. In that case, the legal questions of whether or not there should be a tradeoff between the right to trade and compliance with core labour standards and whether a social clause in the WTO would achieve this purpose had to be addressed. However, without a compatible underpinning legal framework of universally accepted trade-labour standards, incorporating a social clause in the WTO would be a misplaced legal objective which is unachievable as it could lead to a conflict between the WTO and the International Labour Organisation (ILO) and at most could create a legal fiction whose results may not be positively measurable. Setting two international legal norms at conflict with each other is systematically studied as a conflict in which the values of the global market economy are in a supposed confrontation with those protecting core labour standards as human rights. Therefore, this study undertook a contemporary legal analysis of the possibilities and challenges of incorporating a social clause in the WTO for purposes of entrenching the protection of core labour standards. It put forward arguments and tentative proposals for a trade-labour linkage legal framework which could dispel calls for excluding a social clause in the WTO.
- Full Text:
- Date Issued: 2012
- Authors: Warikandwa, Tapiwa Victor
- Date: 2012
- Subjects: Social Clause -- Development -- International Trade Regulation -- Human Rights -- World Trade Organization
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11120 , http://hdl.handle.net/10353/d1015224
- Description: An agreement on the inclusion of a social clause in the World Trade Organization‟s (WTO) multilateral trade agreements largely depends on reassuring objecting member states that such inclusion will contribute to an improved recognition of core labour standards in trade, without altering the competitive advantage of one trading partner over another. Reassurance must be given to the effect that incorporating a social clause in the WTO legal framework would not be used as a trade restricting mechanism which might have direct, negative effects on the development of countries worldwide. Such an argument may not be won easily from a legal and economic perspective. There is an omnipresent conflict at the international level between the basic values underlying multilateral trade agreements and principles governing the protection of core labour standards. On the one hand, supporting the stance of free trade is the fundamental force of profit maximization while on the other hand, and in direct opposition to this market driven value system, are human rights-based calls for recognising core labour standards in employment matters related to trade. Increased international trade is a powerful tool for tackling poverty and social misery worldwide. It could thus be important to adopt a legal framework in the multilateral trade system to harness potential opportunities a trade-labour linkage could provide. In that case, the legal questions of whether or not there should be a tradeoff between the right to trade and compliance with core labour standards and whether a social clause in the WTO would achieve this purpose had to be addressed. However, without a compatible underpinning legal framework of universally accepted trade-labour standards, incorporating a social clause in the WTO would be a misplaced legal objective which is unachievable as it could lead to a conflict between the WTO and the International Labour Organisation (ILO) and at most could create a legal fiction whose results may not be positively measurable. Setting two international legal norms at conflict with each other is systematically studied as a conflict in which the values of the global market economy are in a supposed confrontation with those protecting core labour standards as human rights. Therefore, this study undertook a contemporary legal analysis of the possibilities and challenges of incorporating a social clause in the WTO for purposes of entrenching the protection of core labour standards. It put forward arguments and tentative proposals for a trade-labour linkage legal framework which could dispel calls for excluding a social clause in the WTO.
- Full Text:
- Date Issued: 2012
The Business Trust and its role as an entity in the financial environment
- Authors: Nel, Ebenhaeser Cornelis
- Date: 2012
- Subjects: Trusts and trustees -- South Africa , Corporations -- Taxation -- Law and legislation -- South Africa , Asset-backed financing -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10250 , http://hdl.handle.net/10948/d1020175
- Description: The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.
- Full Text:
- Date Issued: 2012
- Authors: Nel, Ebenhaeser Cornelis
- Date: 2012
- Subjects: Trusts and trustees -- South Africa , Corporations -- Taxation -- Law and legislation -- South Africa , Asset-backed financing -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10250 , http://hdl.handle.net/10948/d1020175
- Description: The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.
- Full Text:
- Date Issued: 2012
The impact of the Consumer Protection Act, 2008 on the accomodation segment of the tourism industry
- Authors: Tait, Andrew Mark
- Date: 2012
- Subjects: South Africa -- Consumer Protection Act, 2008 , Consumer protection -- Law and legislation -- South Africa , Tourism
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10247 , http://hdl.handle.net/10948/d1019922
- Description: The tourism industry is critically important for the economic well-being of South Africa. This realisation elicited a greater focus on the industry, including greater government regulation thereof. Although the concept of a tourist (consumer of tourism services) will not readily conjure up someone in need of protection, tourists are often exposed to exploitation through unfair business practices. Tourists, by definition, are outside their normal places of residence and often strangers to the environment within which they find themselves. For the important tourism industry to achieve its economic potential the protection of the tourist must be paramount. The introduction of the Consumer Protection Act, 2008 in 2010 was heralded as a new dawn for consumers. The CPA provides consumers, including domestic and foreign tourists, with extensive consumer rights. As the CPA is the first comprehensive legislation aimed at consumer protection the impact of the Act is far from known. The CPA caused considerable uncertainty in the tourism industry establishing a clear need to determine its impact on the segments of the industry. This study focuses on the accommodation segment. The aim of the study therefore is to ascertain the impact of selected consumer rights on the accommodation segment of the tourism industry. An overview of the tourism industry reveals that tourists are becoming more experienced, demanding and discerning. The regulation of the industry is explained. Particularly relevant are latest developments in South Africa, particularly the Draft Tourism Bill, 2011 and the National Tourism Sector Strategy. The consumer protection regime applicable prior to the coming into effect of the CPA was characterised more by ad hoc legislative arrangements than any systematic programme of consumer protection. Consumers were reliant on the common law. However, as part of a larger scheme to improve the socio-economic well-being of the people of South Africa, the government introduced a number of statutes including the CPA. The CPA introduced wide-ranging rights for the protection of consumers and mechanisms to provide effective redress. Selected consumer rights are critically analysed to assess the impact of these rights on the accommodation segment. These include the consumer’s right to equality in the market place; the right to privacy; the right to cancel advance bookings; the right to documentation in plain language; the right to quality service; and the right that a supplier having possession of the property of guest must account for such property. Another important aspect relates to the use of exemption provisions. The use of exemption provisions by suppliers is severely curtailed by the CPA. The use of prepaid vouchers, trade coupons and similar promotions, and customer loyalty programmes are also considered and the rights and obligations for consumers and suppliers respectively are elucidated. Many of the rights considered will have a significant impact on accommodation establishments. Elsewhere the impact may not appear to be as significant as the CPA is merely codifying an existing right or remedy. However, codifying the right, providing examples of the conduct prohibited and providing enforcement mechanisms will increase the efficacy of these rights.
- Full Text:
- Date Issued: 2012
- Authors: Tait, Andrew Mark
- Date: 2012
- Subjects: South Africa -- Consumer Protection Act, 2008 , Consumer protection -- Law and legislation -- South Africa , Tourism
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10247 , http://hdl.handle.net/10948/d1019922
- Description: The tourism industry is critically important for the economic well-being of South Africa. This realisation elicited a greater focus on the industry, including greater government regulation thereof. Although the concept of a tourist (consumer of tourism services) will not readily conjure up someone in need of protection, tourists are often exposed to exploitation through unfair business practices. Tourists, by definition, are outside their normal places of residence and often strangers to the environment within which they find themselves. For the important tourism industry to achieve its economic potential the protection of the tourist must be paramount. The introduction of the Consumer Protection Act, 2008 in 2010 was heralded as a new dawn for consumers. The CPA provides consumers, including domestic and foreign tourists, with extensive consumer rights. As the CPA is the first comprehensive legislation aimed at consumer protection the impact of the Act is far from known. The CPA caused considerable uncertainty in the tourism industry establishing a clear need to determine its impact on the segments of the industry. This study focuses on the accommodation segment. The aim of the study therefore is to ascertain the impact of selected consumer rights on the accommodation segment of the tourism industry. An overview of the tourism industry reveals that tourists are becoming more experienced, demanding and discerning. The regulation of the industry is explained. Particularly relevant are latest developments in South Africa, particularly the Draft Tourism Bill, 2011 and the National Tourism Sector Strategy. The consumer protection regime applicable prior to the coming into effect of the CPA was characterised more by ad hoc legislative arrangements than any systematic programme of consumer protection. Consumers were reliant on the common law. However, as part of a larger scheme to improve the socio-economic well-being of the people of South Africa, the government introduced a number of statutes including the CPA. The CPA introduced wide-ranging rights for the protection of consumers and mechanisms to provide effective redress. Selected consumer rights are critically analysed to assess the impact of these rights on the accommodation segment. These include the consumer’s right to equality in the market place; the right to privacy; the right to cancel advance bookings; the right to documentation in plain language; the right to quality service; and the right that a supplier having possession of the property of guest must account for such property. Another important aspect relates to the use of exemption provisions. The use of exemption provisions by suppliers is severely curtailed by the CPA. The use of prepaid vouchers, trade coupons and similar promotions, and customer loyalty programmes are also considered and the rights and obligations for consumers and suppliers respectively are elucidated. Many of the rights considered will have a significant impact on accommodation establishments. Elsewhere the impact may not appear to be as significant as the CPA is merely codifying an existing right or remedy. However, codifying the right, providing examples of the conduct prohibited and providing enforcement mechanisms will increase the efficacy of these rights.
- Full Text:
- Date Issued: 2012
- «
- ‹
- 1
- ›
- »