SARCHI CLES SERIES ON CITIES, LAW AND ENVIRONMENTAL SUSTAINABILITY

 

An Overview of the Role and Functions of Selected Financial Role Players to Protect Financial Stability and Promote Market Integrity in South Africa

 

 

H Chitimira; S Munedzi

North-West University, South Africa. Email: Howard.Chitimira@nwu.ac.za; sharonmunedzi@gmail.com

 

 

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ABSTRACT

The South African Reserve Bank (SARB) and other financial role players such as the Prudential Authority (PA), the Financial Sector Conduct Authority (FSCA), the National Credit Regulator (NCR), the Financial Intelligence Centre (FIC), the Financial Stability Oversight Committee (FSOC), the Financial Sector Contingency Forum (FSCF), the Financial Sector Council of Regulators (FSCR) and the Financial Sector Inter-Ministerial Council (FSIC) play a significant role in the protection and promotion of financial stability and market integrity in South Africa. The SARB has the primary mandate to promote financial stability while the FSCA promotes market integrity and enhances market efficiency through promoting the fair treatment of financial customers by providing financial literacy programmes. As technology advances and new players enter the market, traditional financial institutions are faced with increased competition and the need to adapt and innovate to stay relevant. In this regard, regulatory frameworks and the functions of regulatory bodies should be constantly reviewed to conform to developments in financial technology (fintech) and to safeguard consumer interests. This article examines the role and functions of the aforementioned financial role players in terms of the Financial Sector Regulation Act (FSR Act) and other relevant financial sector laws. This is done to evaluate the effectiveness of their role and functions in protecting and promoting financial stability and market integrity in line with recent fintech and artificial intelligence (AI) developments. The article also evaluates the importance of cooperation and collaboration among the financial role players to enable them to adequately fulfil their mandates.

Keywords: Financial stability; market integrity; roles and functions; FSR Act.

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1 Introductory remarks

Cooperation and collaboration between the South African Reserve Bank (SARB) and other financial role players such as the Prudential Authority (PA), the Financial Sector Conduct Authority (FSCA), the National Credit Regulator (NCR), the Financial Intelligence Centre (FIC), the Financial Stability Oversight Committee (FSOC), the Financial Sector Contingency Forum (FSCF), the Financial Sector Council of Regulators (FSCR), the Financial Sector Inter-Ministerial Council (FSIC) and relevant Cabinet Ministers is essential for the promotion, protection, enhancement and maintenance of financial stability and market integrity in South Africa.¹ This follows the fact that the role and functions of financial sector regulators are interconnected and they can be achieved through optimum coordination among all the relevant regulators.² Several measures have been established under the Financial Sector Regulation Act³ to foster regulatory cooperation and collaboration in the South African financial sector. For example, the FSR Act establishes the duty to cooperate and collaborate between the SARB and other financial role players. It also provides for the duty to conclude Memorandums of Understanding (MOUs) on the cooperation and collaboration arrangements between financial role players. The FSR Act also introduced some bodies to facilitate cooperation and collaboration between the SARB and other financial role players.⁴ It is important that the role and functions of the financial sector role players be prevented from overlapping by providing clear regulatory boundaries for each role player. This approach will ensure effective cooperation and collaboration between the SARB and other financial role players.⁵ To this end, this article analyses the role and functions of the SARB and other relevant financial role players to determine whether they have adopted adequate measures to consistently fulfil their duties and cooperate and collaborate as provided under the FSR Act.⁶

 

2 The role and functions of the SARB to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

Financial stability occurs when a financial sector inspires general confidence through its resilience to systemic risks and its ability to efficiently offer financial services, its ability to offer financial products, and its ability to perform its roles and functions without interruption.⁷ Market integrity generally occurs when financial markets are subject to little financial crime, have strong enforcement mechanisms, rely on fairness and efficiency, and offer transparent financial products.⁸ The FSR Act establishes the role and functions of the SARB in relation to the promotion, protection, enhancement and maintenance of financial stability in South Africa.⁹ It provides that the SARB is the primary guardian of financial stability in South Africa.¹⁰However, the FSR Act does not expressly provide for the role and functions of the SARB in relation to market integrity. In this regard the authors argue that the SARB has a key role in promoting, protecting and enhancing market integrity through cooperating and collaborating with other financial role players such as the NCR and the FSCA and aiding them to fulfil their mandates.¹¹

The FSR Act provides that the SARB is primarily mandated to protect and promote financial stability.¹² This means that the SARB is responsible for making key decisions in matters relating to financial stability in South Africa. The mandate of the SARB also entails the duty to restore and/or maintain financial stability in relation to systemic events or financial crisis.¹³ The SARB's financial stability mandate also gives rise to other role and functions. For example, the SARB is required to monitor any risks to financial stability, conduct financial stability reviews and cooperate and collaborate with other financial sector role players to protect and to promote financial stability in the South African financial sector.¹⁴ The FSR Act requires the SARB to cooperate and collaborate with the PA, the FSCA, other financial regulators and state organs to fulfill its financial stability mandate.¹⁵ This shows that the SARB does not perform its duties and functions in isolation. Accordingly, the FSR Act establishes platforms to foster cooperation and collaboration between the SARB and other financial role players through discussions and consultations. It specifically provides measures to foster cooperation and collaboration between the SARB and other financial role players to promote, protect, enhance and maintain financial stability.

The FSR Act establishes two bodies, namely, the Financial Stability Oversight Committee (FSOC) and the Financial Sector Contingency Forum (FSCF) to facilitate the SARB's financial stability objective.¹⁶ The role and functions of the FSOC and the FSCF will be discussed in more detail later in this article. The SARB does not have the freedom to make decisions regarding how it fulfills its financial stability mandate because it is required to act in a manner determined by the Minister of Finance and the Governor of the SARB.¹⁷ This could suggest that the SARB's role and functions also rely on extensive consultation and coordination with the National Treasury.

The FSR Act provides that the SARB should take into consideration the views and information shared by other financial regulators when fulfilling its financial stability mandate.¹⁸ The Act also requires other financial role players to assist and share information with the SARB and the FSOC relating to maintaining or restoring financial stability to foster cooperation and collaboration between all relevant financial role players.¹⁹

The SARB is required to enter into a MOU to establish cooperation, collaboration and information sharing arrangements with other financial role players to effectively promote financial stability.²⁰ The SARB relies on the information gathered by the FIC to detect and monitor unusual transactions concluded by the perpetrators of financial crime that are likely to threaten financial stability and the integrity of the financial markets.²¹ The SARB also fulfills its financial stability mandate by gathering relevant information on financial stability from other financial role players such as the PA, the FSCA, the FIC and the NCR. During the corona virus (COVID-19) pandemic, the SARB cooperated and collaborated with the FSCA, the PA and the NCR to protect financial stability and market integrity by offering supervisory and regulatory relief to financial customers,²² but it struggled to fulfil its duties and functions. In this regard, its cooperation and collaboration with other financial role players such as the PA, the FSCA, the FIC and the NCR was also severely affected.

As noted earlier, the SARB does not have an express mandate to promote, protect, enhance and maintain market integrity in South Africa. However, the SARB may use its statutory powers and authority as the central bank to promote market integrity by monitoring risks that may weaken the financial

sector.²³ For example, the SARB may use its power to monitor risks to detect systemic events that may threaten market integrity. Also, the SARB's duty to cooperate and collaborate with the FSCA implies that it has a role in the promotion, protection and enhancement of market integrity by assisting the FSCA to promote market integrity.²⁴ The SARB is also required to have regard to other state organs whose role and functions affect market integrity.²⁵ These include the Department of Trade and Industry, which determines interest rates on credit agreements in terms of the National Credit Act.²⁶ Accordingly, the authors submit that the SARB also plays a crucial role in the promotion, protection, enhancement and maintenance of market integrity through its cooperation and collaboration with other financial role players such as the FSCA and the NCR.

 

3 The role and functions of the PA to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

The FSR Act also established the PA²⁷ to oversee prudential supervision and regulation in South Africa. The PA operates as an independent juristic person, separate from the SARB.²⁸ The role and functions of the PA include promoting and enhancing the safety and soundness of financial institutions; promoting and enhancing market integrity, and protecting consumers from the risks posed by financial institutions which fail to fulfill their obligations. Moreover, the PA is obliged to cooperate and collaborate with the SARB to promote, protect and maintain financial stability.²⁹ However, the FSR Act does not expressly impose on the PA a duty to protect, promote, enhance and maintain market integrity. The PA should promote and enhance the safety and soundness of market infrastructures to maintain market integrity in South Africa.³⁰

The PA is required to assist, share information, cooperate and collaborate with the SARB, the FSCA, the NCR, the FIC, the Competition Commission and other relevant financial role players to promote financial stability and enhance market integrity.³¹ It is expressly required to support sustainable competition and cooperate and collaborate with the Competition Commission.³² The PA plays a key role in enhancing the integrity of financial markets by ensuring healthy competition for sustainability in the South African financial markets.

Furthermore, the PA is required to cooperate and collaborate with the FSCA in accordance with the FSR Act.³³ Accordingly, the PA should do more to promote and enhance market integrity by cooperating and collaborating with other financial role players such as the FSCA and the Competition Commission. Moreover, the FSR Act should be amended to expressly oblige the PA to promote and enhance market integrity in South Africa. This could prevent regulatory gaps and overlaps between the PA and other financial role players.

The FSR Act imposes an obligation on the PA to promote and enhance sustainable competition in the financial sector.³⁴ In this regard, the PA's role is similar to that of its United Kingdom (UK) counterpart, the Prudential Regulatory Authority (PRA). However, its role is different from that of the Australian Prudential Regulatory Authority (APRA).³⁵ In the UK, the PRA plays a significant role in promoting market integrity through ensuring viable competition but the same cannot be said about the Australian APRA.³⁶ The PA should cooperate and collaborate with the Competition Commission.³⁷

However, the FSR Act does not expressly provide for such cooperation and collaboration.³⁸ It is submitted that this status quo is justifiable because it is consistent with the legislative intent to make the PA a separate regulatory body that is independent from other regulatory bodies.³⁹ The effective cooperation and collaboration between the PA and the Competition Commission could enhance market integrity in South Africa.

The PA should further promote financial stability in South Africa. The FSR Act provides that the PA should assist in maintaining financial stability and participate in the mitigation of risks that affect financial stability by enforcing any measures that are recommended by the SARB from time to time.⁴⁰ The PA and the National Treasury cooperate and collaborate with each other to develop policies on any matters relating to the financial sector.⁴¹ In the last three years the PA has cooperated and collaborated with the SARB through, inter alia, the designation of systematically important financial institutions and the designation of regulatory instruments to supervise financial institutions.⁴² To alleviate the effects of the COVID-19 measures on financial stability and market integrity, the PA collaborated with the NCR to provide credit to PA-regulated financial institutions and develop regulatory instruments.⁴³ Therefore, the PA has to date managed to cooperate and collaborate with the SARB and other financial role players to adequately protect financial stability and enhance market integrity in South Africa.⁴⁴ The FSR Act grants the PA the authority to do anything it deems necessary to fulfil its objectives.⁴⁵ This includes cooperating with its counterparts from other jurisdictions and relevant international bodies to protect, promote and maintain financial stability and market integrity in South Africa.⁴⁶

 

4 The role and functions of the FSCA to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

The FSCA is an independent market conduct regulator in South Africa.⁴⁷The FSCA was established as a separate regulatory body that is obliged to cooperate and collaborate with the SARB, the PA, the FIC, the NCR, the Competition Commission and other relevant state organs to protect, promote, maintain and enhance financial stability and market integrity in South Africa.⁴⁸ The FSCA has a duty to promote and enhance market integrity and market efficiency by protecting and promoting the fair treatment of financial customers and promoting financial literacy programmes.⁴⁹ The FSR Act also requires the FSCA to adopt measures to maintain financial stability.⁵⁰

The FSCA plays a significant role as the enforcement authority of anti-market abuse laws to protect and enhance the integrity of South African financial markets.⁵¹ To fulfill this mandate, it cooperates and collaborates with the FIC and other enforcement authorities to curb market misconduct and related financial crimes in South Africa. However, there has not been significant cooperation and collaboration between the FSCA, the South African courts, law enforcement agencies and other financial role players to promote financial stability and market integrity in South Africa.⁵² The FSCA does not have the power and authority to prosecute any illicit market conduct cases. As such, there is need for cooperation and collaboration arrangements between the FSCA, courts and enforcement authorities such as the South African Police Service (SAPS) and the National Prosecuting Authority (NPA) to ensure the effective detection, investigation and prosecution of such cases.⁵³ To date, there have been very few successfully prosecuted cases in this regard. This could suggest that there are inadequate cooperation and collaboration arrangements between the FSCA and the FIC, the SAPS and other relevant role players.⁵⁴ Accordingly, it is submitted that the FSR Act should be amended to enact provisions that specifically give effect to the cooperation and collaboration between the FSCA, the FIC, the courts, the SAPS and other relevant role players to promote and enhance market integrity in South Africa.

The FSR Act also requires the FSCA to participate in relevant international bodies, and cooperate and/or collaborate with its international counterparts so as to achieve its objectives.⁵⁵ Cross-border cooperation and collaboration between the FSCA and other international regulatory bodies is essential for combatting financial crimes that affect market integrity and financial stability.⁵⁶ The FSCA has taken steps to collaborate with international organisations such as the United States Securities and Exchange Commission (SEC) to enhance the monitoring, detection, investigation and control of cross-border market misconduct that affects market integrity and financial stability in South Africa.⁵⁷ The FSCA is also a signatory of the International Organisation of Securities Commissions (IOSCO).⁵⁸ The IOSCO assists it with relevant information to enforce, detect and investigate financial crime and market misconduct in South Africa.⁵⁹This shows that the FSCA has so far made considerable efforts to cooperate and collaborate with other international bodies and financial role players to promote financial stability and market integrity. This is commendable because it empowers the FSCA to combat cross-border market misconduct and financial crime.

The FSCA has regulatory powers to request information from other regulatory bodies⁶⁰ and investigative authority which allows it to investigate any matter or financial institution if it suspects non-compliance with the relevant legislation to promote market integrity.⁶¹ Market integrity involves, inter alia, fair customer treatment, sound financial institutions, the prevention of financial crime, and financial literacy. Accordingly, the FSCA may make conduct standards applicable to relevant financial role players to promote market integrity through ensuring financial literacy, reducing risks to combat financial crimes and encouraging the fair treatment of customers. This enables it to assist the SARB to maintain financial stability.⁶² The FSCA may also require specific action from a financial institution if it reasonably believes that the actions or conduct of that institution pose a risk to market integrity or when the financial institution or financial role player contravenes any financial sector laws.⁶³ This is applicable if such actions, conduct or contraventions are committed within the scope of the objectives of the FSCA or if the conduct has affected or is likely to affect market integrity and financial stability.⁶⁴ However, the FSCA may not issue directives relating to financial stability without prior consultation with and the approval of the SARB. The SARB and the FSCA have concluded a MOU to establish cooperation and collaboration arrangements in matters relating to, inter alia, combatting money laundering and the financing of terrorism, the SARB's financial stability objectives, information exchange and the monitoring of financial stability risks.⁶⁵

Although the FSCA is an independent juristic person, it does not perform its role and functions in isolation. The emphasis on cooperation and collaboration when fulfilling its regulatory duties under the FSR Act ensures that the FSCA constantly consults, assists and discusses matters relating to common interests with other financial role players such as the SARB, the FIC, the PA and the NCR. The FSR Act also obliges other financial role players such as the PA to cooperate, collaborate and assist the FSCA in fulfilling its functions and objectives.⁶⁶ This shows the significance of cooperation and collaboration between the SARB and other financial role players in protecting, promoting, maintaining and enhancing financial stability and market integrity in South Africa. However, the FSR Act fails to expressly provide statutory provisions and/or regulations on the cooperation and collaboration between the FSCA, the FIC, the SAPS and the courts to detect, investigate and prosecute financial markets misconduct cases. It is essential that the FSR Act be amended to enact adequate provisions that effectively enhance the combatting of financial crime and promote financial stability and the integrity of South African financial markets. The FSCA and the SAPS should conclude cooperation and collaboration MOUs to enhance the prevention and investigation of market misconduct and financial crime that threatens financial stability and market integrity in South Africa.⁶⁷

 

5 The role and functions of the FSOC to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

The FSOC is a committee established by the FSR Act to deal with all matters relating to financial stability.⁶⁸ The FSOC supports the SARB in fulfilling its financial stability mandate. The FSOC was also established to facilitate cooperation and collaboration between the SARB and other financial regulators such as the PA, the FSCA, the FIC and the NCR for the purpose of protecting, promoting, maintaining and enhancing financial stability.⁶⁹ The main function of the FSOC is to facilitate cooperation and coordination between the SARB and other financial role players for the purpose of financial stability. However, there are no express provisions relating to the FSOC's duty to promote market integrity in South Africa under the FSR Act.'⁷⁰ In this regard, it appears that the FSOC has a duty to maintain market integrity through its duty to prevent and manage risks to financial stability.⁷¹ This follows the fact that a threat to financial stability may also adversely affect the integrity of the financial markets.

The FSOC serves as a forum for discussion between the SARB and other financial role players in all matters relating to financial stability. Essentially, the FSOC fosters cooperation and collaboration between the SARB and other financial role players such as the PA, the FSCA, the FIC and the NCR to promote and to enhance financial stability by creating a platform for discussions and information sharing.⁷² The FSOC also serves as an advisory committee that is tasked with the duty of advising the SARB and the Minister of Finance on measures to protect, promote, and maintain financial stability, mitigate and manage systemic risks or potential risks that threaten financial stability.⁷³ Thus, the FSOC plays an important role in the cooperation and collaboration between the SARB and other financial role players to enable them to fulfill their mandates.⁷⁴

The FSOC comprises of senior officials of other financial role players such as the SARB, the PA, the FSCA, the FIC and the NCR. In this regard, it is submitted that the membership of the FSOC fosters high-level coordination through information sharing, consultation and discussions on matters of common interest between the SARB and the key financial role players in South Africa.⁷⁵ The role and functions of the FSOC include recommending the designation of systemically important financial institutions; advising the relevant Minister and the SARB on mechanisms regarding the promotion, protection, prevention of risks, crisis management and prevention; recommending mechanisms to protect, promote, maintain and enhance financial stability to relevant state organs; management or prevention of risks to financial stability; and performing any other relevant functions imposed by financial sector laws.⁷⁶ These duties are fulfilled through consultation and discussions between the member institutions. The FSOC is supposed to meet every six months to discuss matters relating to financial stability, and to relevant share information.⁷⁷ The purpose of holding regular FSOC meetings is to foster cooperation and collaboration between the SARB and the member institutions, such as the FSCA, the PA, the FIC and the NCR. Accordingly, the FSOC performs its role and functions in a manner that facilitates cooperation and collaboration between the SARB, and other regulators to promote, protect, maintain and enhance financial stability and market integrity in South Africa.

Having regard to the role and functions of the FSOC, it is submitted that the FSOC was established to create a platform for the SARB and other financial role players to make decisions relating to the SARB's financial stability mandate. It is a platform that enables the financial role players to cooperate and collaborate to protect and maintain financial stability through regular meetings, consultations and discussions. However, we submit that the role and functions of the FSOC are limited to facilitating cooperation and collaboration and do not extend to the enforcement of regulatory coordination in South Africa. As such, there remains a gap in relation to the enforcement to ensure consistency in inter-agency coordination to promote, protect, enhance and maintain financial stability and market integrity in South Africa.

 

6 The role and functions of the FSCF to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

The FSCF was established under the FSR Act to assist the FSOC with the discovery of potential systemic risk events so that appropriate measures to mitigate such risks can be adopted.⁷⁸ The main function of the FSCF is to assist the FSOC with the implementation of measures to mitigate identified systemic risks. It has a duty to assist the FSOC to fulfil its objectives by fostering cooperation and collaboration between its member institutions.⁷⁹It should be noted that FSCF does not have a mandate separate from the role and functions of the FSOC. Thus, like the FSOC, the FSCF does not have an express duty to promote and enhance market integrity in South Africa. The FSCF ensures that the FSOC effectively and efficiently fulfills its duties of providing the FSOC with relevant information to execute its mandate.⁸⁰

The FSCF receives administrative support from the SARB to fulfil its functions effectively.⁸¹ It is submitted that the relationship between the FSCF and the FSOC is founded on cooperation and collaboration. The primary objective of the FSCF is to assist the FSOC to identify potential risks and establish plans and mechanisms to mitigate risks that threaten financial stability and market integrity.⁸² However, there is no direct coordination between the SARB and the FSCF. Instead cooperation and collaboration between the SARB and the FSCF is done through the FSOC. Moreover, the FSR Act does not expressly provide for the conclusion of cooperation and collaboration MOUs between the FSCF and the FSOC to curb overlaps and regulatory gaps between the two committees. The FSCF and the FSOC have seemingly overlapping functions and the lack of clear cooperation and collaboration arrangements or demarcation of functions might result in overlaps between the functions of the FSOC and those of the FSCF.⁸³ This follows the fact that both the FSCF and the FSOC are manned by the same personnel, the Deputy Governors of the SARB. Accordingly, the potential overlaps and regulatory gaps between the role and functions of the FSCF and the FSOC, which could threaten financial stability and market integrity in South Africa, should be adequately addressed.

 

7 The role and functions of the FSCR to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

The FSR Act established the FSCR to facilitate cooperation, collaboration and consistency of action between the SARB and member institutions of the FSCR, namely, the Department of Trade and Industry, the Department of Health, the NCR, the FIC, the Medical Schemes, the National Consumer Commission and the Competition Commission.⁸⁴ The establishment of FSCR was probably borrowed from Australia, which also established a Council of Financial Regulators (CFR), but there is no similar body in the UK.⁸⁵ The FSCR facilitates cooperation, collaboration, coordination, consultation and consistency of action among the relevant role players. The FSCR has created a forum for its constituent institutions to discuss and to share information relating to matters of common interest.⁸⁶ However, it is argued that the membership of the FSCR raises an area of difficulty when compared to that of the Australian CFR.⁸⁷ The membership of the FSCR does not include the main financial role players in South Africa, namely, the SARB, the PA and the FSCA. As such, it is difficult to understand how the FSCR may promote financial stability and enhance market integrity without the input of the PA and the FSCA. The FSCR facilitates general cooperation and collaboration between the SARB and other financial role players.⁸⁸ In this regard, there is a need to amend and reconsider the membership of the FSCR so as to include the main financial role players, namely the PA and the FSCA, as in the case in Australia. This could enhance the discussions, coordination, transparency, mutual collaboration and good relationships between the SARB and other financial role players with the purpose of promoting, protecting, enhancing and maintaining financial stability and market integrity in South Africa.

The FSCR does not have other substantive powers and functions that go beyond its facilitating and coordinating role. The authors submit that this approach might have been implemented as a measure to prevent the roles and functions of the FSCR from cutting across the objectives and functions of its member institutions.⁸⁹ This means that the FSCR is not expressly authorised to enforce the duty to cooperate and collaborate between the SARB and its member institutions.⁹⁰ Nonetheless, this lack of enforcement powers on the part of the FSCR affects its transparency and compliance with the duty to cooperate, collaborate and conclude relevant MOUs. The FSCR should have the duty and powers to consistently enforce and compel cooperation and collaboration between the relevant financial role players.

The FSCR is a forum for discussing and resolving matters that could threaten financial stability and market integrity.⁹¹ The FSR Act provides that the FSCR should meet at least twice in a year.⁹² However, two meetings in a year are not sufficient to effectively enhance adequate coordination and collaboration of all role players to promote financial stability and market integrity in South Africa. In Australia, the CFR meets at least four times a year to identify, discuss, and assist each other in matters of common interest.⁹³ As such, there is a need for regular FSCR meetings to harmonise its regulatory functions and to ensure adequate cooperation and collaboration between the SARB and other financial role players.

The FSCR should not be regarded as the only forum for inter-agency coordination between financial sector role players. This means that its powers and functions should not limit the powers and functions of its member institutions in relation to cooperation and collaboration with each other.⁹⁴ In addition to the role and functions of the FSCR to facilitate cooperation and collaboration, it should be empowered to coordinate and resolve any conflicts that arise between financial role players.

 

8 The role and functions of the FIC in promoting, protecting, enhancing and maintaining financial stability and market integrity under the FSR Act

The FIC is established under the Financial Intelligence Centre Act (FICA).⁹⁵The FIC is responsible for customer verification, keeping transaction records, monitoring customer account activities, reporting suspicious transactions and facilitating risk assessment programmes to combat financial crime in South Africa.⁹⁶ Notably, the FIC is not expressly obliged to promote, protect, enhance and maintain financial stability and market integrity under the FICA and FSR Act. However, the FIC is required to monitor transactions and report unusual transactions to enable the detection of financial crimes such as money laundering and market abuse that affects market integrity and financial stability.⁹⁷ The FSR Act requires the FIC to cooperate and collaborate with the SARB, the FSOC, the FSCA, the PA and the NCR to fulfill its duties and functions.⁹⁸ This entails that the FIC also plays a key role in promoting, protecting, enhancing and maintaining financial stability and market integrity in South Africa.⁹⁹ The FIC has entered into a MOU with the PA and the SARB which promotes cooperation, collaboration and information sharing between the relevant institutions.¹⁰⁰ In this MOU, the FIC has agreed to protect and enhance financial stability by participating in the FSOC, the FSCR and the FSCF.¹⁰¹ This entails that the FIC is required to cooperate and collaborate with the member institutions of the FSCR, the FSOC and the FSCF to promote financial stability and market integrity. The FIC fulfills its financial stability and market integrity functions by providing relevant information to the SARB and other financial role players.

However, there is no cooperation and collaboration MOUs between the FIC, the courts and law enforcement agencies such as the SAPS. There is a need for cooperation and collaboration MOUs between the FIC and the SAPS to enhance the detection and prosecution of market misconduct matters in South Africa. Such cooperation and collaboration should enable the SAPS to access information held by the FIC to enhance the detection of market misconduct and financial crime which affects financial stability and market integrity. The courts should also hear market misconduct cases that are reported by the FIC.

 

9 The role and functions of the NCR to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

The NCR was established under the National Credit Act¹⁰² with the primary purpose of monitoring and regulating the South African credit industry.¹⁰³ It should be noted that the NCR does not have express role and functions on the promotion and protection of financial stability and market integrity in South Africa. However, it is obliged to ensure that the credit market is accessible to all consumers by monitoring it so as to promptly detect, prosecute, investigate and where possible, prevent credit market misconduct.¹⁰⁴ The NCR performs these functions to indirectly promote and protect the integrity of the financial markets. However, the NCR does not fulfill these functions in isolation, since financial sector regulators are required to cooperate and collaborate with the SARB and with each other in terms of the FSR Act.¹⁰⁵

To date, the NCR has entered into several MOUs to promote cooperation, collaboration and information sharing arrangements with the SARB, the FSCA, the PA and the Credit Ombud.¹⁰⁶ These MOUs, inter alia, formalise and strengthen relationships, appropriate coordination and collaboration among all role players. The MOU regarding cooperation and collaboration arrangements between the NCR, the FSCA and the Credit Ombud plays a significant role in preventing overlaps and regulatory gaps among these role players. This is essential for effective cooperation and collaboration to promote, protect, enhance and maintain market integrity in South Africa. The NCR has also entered into an MOU with the SARB and the PA to cooperate and collaborate on the promotion of financial stability.¹⁰⁷ Although the NCR is not statutorily and expressly mandated to promote and protect financial stability, it cooperates and collaborates with the SARB to maintain, protect and enhance financial stability.¹⁰⁸ It performs this duty by providing assistance and sharing relevant information with the SARB and the FSOC to maintain financial stability. In this regard it is clear that the NCR has made some efforts to cooperate and collaborate with the SARB and other financial role players to promote, protect, enhance and maintain financial stability and market integrity in South Africa. For instance, the NCR adopted some measures to collaborate with the SARB during the COVID-19 pandemic to re-structure and re-position credit interest rates in order to ensure that financial customers do not become over-indebted.

 

10 The role and functions of the FSIC to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

The role and functions of state organs and cabinet members in promoting, protecting, enhancing and maintaining financial stability and market integrity in South Africa cannot be overemphasised. The FSR Act established the FSIC to facilitate cooperation and collaboration between the cabinet members who are responsible for administering financial sector laws and other role players.¹⁰⁹ The FSIC was established as a forum for cabinet members to discuss matters of common interest such as policy objectives, domestic and international regulatory challenges.¹¹⁰ Therefore, the FSIC is a forum that fosters cooperation and collaboration among the relevant cabinet members and other financial role players such as the SARB, the FSCA and the PA. The FSIC comprises of the Minister of Finance, the Minister of Trade and Industry, the Minister of Health and the Minister of Economic Development.¹¹¹ The membership of the FSIC suggests that it is a high-level decision-making forum with a significant role to play in promoting, protecting, enhancing and maintaining financial stability and market integrity in South Africa.

The FSIC is obliged to facilitate cooperation and collaboration between the SARB, financial regulators and relevant government officials. It ensures that financial sector laws, policies and cabinet decisions do not jeopardise financial stability and market integrity objectives as well as other matters relating to financial sector regulation.¹¹² The FSIC is also tasked with evaluating the cooperation and collaboration mechanisms established in South Africa every two years.¹¹³ The decision to burden the FSIC with the duty to evaluate cooperation and collaboration mechanisms should be reconsidered since the members of the FSIC are politically exposed persons (PEPs) who hold prominent public offices and are regarded as high risk customers.¹¹⁴ PEPs are natural persons who are regarded as high risk customers due to their ability to abuse the power vested in them to commit financial crimes such as bribery, corruption and embezzlement.¹¹⁵Accordingly, the decision to make cabinet members actively involved in matters relating to financial stability, market integrity and financial sector regulation is not very prudent.

 

11 The role and functions of the SAPS and the courts to promote, protect, enhance and maintain financial stability and market integrity under the FSR Act

Notwithstanding the fact that the FSR Act does not provide any provisions relating to the roles and functions of the SAPS and the South African courts to promote, protect, enhance and maintain financial stability and market integrity in South Africa, the FICA provides that the FIC may refer suspected market misconduct cases to the SAPS or any other law enforcement authority.¹¹⁶ The SAPS plays a significant role in the investigation of matters

threatening financial stability and market integrity while the South African courts adjudicate against the perpetrators on such matters.¹¹⁷ This shows that the SAPS and the courts have roles to play in protecting and promoting financial stability in South Africa. Be that as it may, there are no established arrangements to facilitate cooperation and collaboration between the SARB, financial role players and the law enforcement authorities to protect financial stability and enhance market integrity.¹¹⁸ In this regard, there is a need for the enactment of adequate provisions that expressly regulate cooperation and collaboration between the SARB and the law enforcement authorities in South Africa so that they may effectively detect, investigate and combat financial crimes that threaten financial stability and market integrity.

 

12 Concluding remarks

The promotion, protection, enhancement and maintenance of financial stability and market integrity in South Africa rely on the effective performance of the role and functions of all role players, as discussed in this article. Thus, financial role players such as the SARB, the FSCA, the FIC, the PA, the NCR, the FSIC, the FSCR, the FSIC and the FSCF should adequately and consistently cooperate and collaborate with each other to promote, protect, enhance and maintain financial stability and market integrity in South Africa.¹¹⁹ This follows the fact that the roles and functions of the SARB and other financial role players are interconnected. The SARB and other financial role players should collaborate well with each other to adopt adequate measures to promote and maintain financial stability and market integrity.¹²⁰ The financial role players should also embrace financial technology and artificial intelligence when conducting their duties and functions. This could enable all financial role players to timeously detect and combat systemic risks and financial crimes such as money laundering, insider trading, terrorist financing and market manipulation. Moreover, the cooperation and collaboration between financial role players should be carefully utilised to avoid overlapping and the challenges of double jeopardy and over regulation. All financial role players should conclude cooperation and collaboration MOUs that are regularly reviewed to ensure that they optimally conduct their duties and functions. Financial role-players should be statutorily obliged to cooperate and collaborate with the enforcement authorities to ensure the effective detection, investigation and prosecution of any conduct that may negatively affect financial stability and market integrity in South Africa.

 

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List of Abbreviations

AI Artificial Intelligence

AJICL African Journal of International Comparative Law

APRA Australian Prudential Regulatory Authority

CFR Council of Financial Regulators

EIRP Proceedings European Integration - Realities and Perspectives. Proceedings

FIC Financial Intelligence Centre

FICA Financial Intelligence Centre Act 38 of 2001

FSCA Financial Sector Conduct Authority

FSCF Financial Sector Contingency Forum

FSCR Financial Sector Council of Regulators

FSIC Financial Sector Inter-Ministerial Council

FSOC Financial Stability Oversight Committee

FSR Act Financial Sector Regulation Act 9 of 2017

Geo J Int'l L Georgetown Journal of International Law

HKLJ Hong Kong Law Journal

IBERJ International Business and Economics Research Journal

IJEBL Interdisciplinary Journal of Economics and Business Law

Int'l Law The International Lawyer

IOSCO International Organisation of Securities Commissions

JBR Journal of Banking Regulation

JBFLP Journal of Banking and Finance Law and Practice

JFC Journal of Financial Crime

JIBFL Journal of International Banking and Financial Law

JIMF Journal of International Money and Finance

JMLC Journal of Money Laundering Control

LFMR Law and Financial Markets Review

MOU Memorandum of Understanding

NCA National Credit Act 34 of 2005

NCR National Credit Regulator

PA Prudential Authority

PRA Prudential Regulatory Authority

PEPs politically exposed persons

SA Merc LJ South African Mercantile Law Journal

SAJCJ South African Journal of Criminal Justice

SALJ South African Law Journal

SAPS South African Police Service

SARB South African Reserve Bank

SEC Securities and Exchange Commission

THRHR Tydskrif vir Hedendaagse Romeins-Hollandse Reg

UK United Kingdom

Wm & Mary Bus L Rev William and Mary Business Law Review

 

 

Date Submitted: 14 November 2023
Date Revised: 30 April 2024
Date Accepted: 30 April 2024
Date Published: 26 August 2024

 

 

Editor: Prof W Erlank
Journal Editor: Prof W Erlank
* Howard Chitimira. LLB (cum laude), LLM (UFH), LLD (NMMU). Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University, South Africa. E-mail: Howard.Chitimira@nwu.ac.za. ORCiD: https://orcid.org/0000-0003-1881-1242.
** Sharon Munedzi. LLB, LLM, LLD (NWU). Postdoctoral Research Fellow, Faculty of Law, North-West University, South Africa. E-mail: sharonmunedzi@gmail.com. ORCiD: https://orcid.org/0000-0003-4326-3698. This article was influenced in part by Munedzi's Doctor of Laws (LLD) thesis entitled A comparative statutory analysis of the collaboration and cooperation between the South African Reserve Bank and other financial regulatory bodies under the Financial Sector Regulation Act 9 of 2017 (LLD dissertation, 2022) 69-95. The article was initially presented at the 1st Banking, Competition and Corporate Law Colloquium at North-West University, Faculty of Law, on 6-7 July 2023.
1 Van Niekerk and Van Heerden 2020 SALJ 113; Llewellyn "Institutional Structure of Financial Regulation" 28; Godwin and Schmulow 2015 SALJ 758; Schmulow 2017 AJICL 394.
2 Llewellyn "Institutional Structure of Financial Regulation" 28; see related comments by Chitimira 2014 Speculum Juris 110; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 8; Godwin and Schmulow 2015 SALJ 758.
3 Financial Sector Regulation Act 9 of 2017 (FSR Act), see ss 26 and 76; Godwin and Schmulow 2015 SALJ 758; Qumba 2022 SALJ 92; Godwin 2017 LFMR 183; Schmulow 2017 AJICL 395.
4 See ss 20(1), 27, 77, 79(2) and 83(1) of the FSR Act; Godwin and Schmulow 2015 SALJ 759; Van Niekerk and Van Heerden 2020 SALJ 118; Godwin 2017 LFMR 151, 152; see related comments by Godwin, Li and Ramsay 2016 HKLJ 938.
5 Godwin 2017 LFMR 184; Godwin and Schmulow 2015 SALJ 759; Schmulow 2017 AJICL 396; Godwin, Li and Ramsay 2016 HKLJ 630.
6 Sections 26 and 76 of the FSR Act; Van Heerden and Van Niekerk 2017 THRHR 643; Godwin, Howse and Ramsay 2017 SALJ 667; Van Heerden and Van Niekerk 2018 LFMR 156.
7 Section 4 of the FSR Act; see related comments by Van Heerden and Van Niekerk 2017 THRHR 643; Van Heerden and Van Niekerk 2018 LFMR 156; Schinasi 2004 https://www.imf.org/external/pubs/ft/wp/2004/wp04187.pdf 4.
8 Austin 2017 Wm & Mary Bus L Rev 219; Schwartz, Byrne and Stempel Market Integrity 14; Fodor 2008 JFC 262.
9 Section 12 of the FSR Act; Constitution of the Republic of South Africa, 1996 (the Constitution) s 255; Van Heerden and Van Niekerk 2018 LFMR 156; De Jager 2013 SA Merc LJ 496.
10 Section 12 of the FSR Act; s 255 of the Constitution; Van Heerden and Van Niekerk 2017 THRHR 643; Van Heerden and Van Niekerk 2018 LFMR 156.
11 See s 76 of the FSR Act; see related comments by Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 13; Van Heerden and Van Niekerk 2018 LFMR 156.
12 Section 11 of the FSR Act; s 3 of the Reserve Bank Act 90 of 1989; National Treasury 2011 https://www.treasury.gov.za/twinpeaks/20131211%20-%20item%202%20a%20safer%20financial%20sector%20to%20serve%20south%20africa%20better.pdf; Schmulow 2017 AJICL 394; De Jager 2013 SA Merc LJ 499.
13 Section 12 of the FSR Act; see related comments by Osode 2021 IJEBL 12; Godwin, Kourabas and Ramsay 2016 Int'l Law 275; also see Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 13.
14 Sections 12, 15, 20 and 26 of the FSR Act; Van Heerden and Van Niekerk 2018 LFMR 157; see related comments by Allen 2014 Geo J Int'l L 934; also see Taylor 2009 Connecticut Insurance Law Journal 66.
15 Section 26 of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 115; Godwin and Schmulow 2015 SALJ 759; Schmulow 2017 AJICL 396; Qumba 2022 SALJ 95.
16 Sections 20 and 25 of the FSR Act; SARB 2016 https://www.resbank.co.za/content/dam/sarb/what-we-do/financial-stability/A%20new%20macroprudential%20policy%20framework%20for%20South%20Africa.pdf; Van Heerden and Van Niekerk 2018 LFMR 156; Godwin, Howse and Ramsay 2017 SALJ 665.
17 Section 11(2)(a) of the FSR Act; Van Heerden and Van Niekerk 2018 LFMR 157; see related comments by Van Niekerk and Van Heerden 2020 SALJ 116; also see De Jager 2013 SA Merc LJ 497.
18 Section 26(2) of the FSR Act; see related comments by Allen 2014 Geo J Int'l L 935; Godwin and Schmulow 2015 SALJ 766; Van Heerden and Van Niekerk 2018 LFMR 158.
19 Section 27(1) of the FSR Act; see related comments by Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; also see Schwarcz 2008 Georgetown Law Journal 194; SARB 2016 https://www.resbank.co.za/content/dam/sarb/what-we-do/financial-stability/A%20new%20macroprudential%20policy%20framework%20for%20South%20Africa.pdf 31.
20 Section 27(1) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 119; Godwin 2017 LFMR 184; Schmulow 2017 AJICL 401.
21 Section 21 of the Financial Intelligence Centre Act 38 of 2001 (FICA); see related comments by Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; Van Niekerk and Van Heerden 2020 SALJ 108-114; Sharrock Law of Banking and Payment 41.
22 PA date unknown https://www.resbank.co.za/content/dam/sarb/what-we-do/prudential-regulation/PA%20Regulatory%20and%20Supervisory%20Strategy%202021.pdf; see related comments by Chitimira Market Abuse Regulation 178.
23 Section 11(2)(a) of the FSR Act; Van Heerden and Van Niekerk 2018 LFMR 157; see related comments by Van Niekerk and Van Heerden 2020 SALJ 116; also see De Jager 2013 SA Merc LJ 497.
24 Sections 12, 26 and 76 of the FSR Act; see related comments by Chitimira and Magau 2022 EIRP Proceedings 360; also see Sharrock Law of Banking and Payment 41; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; Van Niekerk and Van Heerden 2020 SALJ 115.
25 PA date unknown https://www.resbank.co.za/content/dam/sarb/what-we-do/prudential-regulation/PA%20Regulatory%20and%20Supervisory%20Strategy%202021.pdf 27.
26 Section 11(2)(b) of the FSR Act; s 103 of the National Credit Act 34 of 2005 (NCA); Van Heerden and Van Niekerk 2018 LFMR 157; see related comments by Goodspeed 2017 SA Financial Regulation Journal 15.
27 Section 32 of the FSR Act; Goodspeed 2017 SA Financial Regulation Journal 15; Van Heerden and Van Niekerk 2018 LFMR 159; Godwin 2017 LFMR 185.
28 Section 32 of the FSR Act; Chitimira and Magau 2022 EIRP Proceedings 366; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; Van Niekerk and Van Heerden 2020 SALJ 118.
29 Section 33 of the FSR Act; see related comments by Van Heerden and Van Niekerk 2017 THRHR 642; Van Heerden and Van Niekerk 2018 LFMR 159.
30 Section 33(b) of the FSR Act; see related comments by Godwin 2017 LFMR 185; Godwin, Howse and Ramsay 2017 SALJ 670; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12.
31 Sections 34(1)(a)-(b) and 26 of the FSR Act; Chitimira and Magau 2022 EIRP Proceedings 366; Van Niekerk and Van Heerden 2020 SALJ 118; Visagie-Swart and Lawack 2020 SA Merc LJ 148.
32 Section 34(1)(d) of the FSR Act; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; Chitimira and Magau 2022 EIRP Proceedings 366.
33 Section 57(a)-(b)(i) of the FSR Act; Chitimira Market Abuse Regulation 41; see related comments by Van Niekerk and Van Heerden 2020 SALJ 119; also see Osode 2021 IJEBL 13; Visagie-Swart and Lawack 2020 SA Merc LJ 132.
34 Section 34(1)(d) of the FSR Act; Osode 2021 IJEBL 14.
35 Osode 2021 IJEBL 14; Godwin, Howse and Ramsay 2016 JBR 106; Godwin, Kourabas and Ramsay 2016 Int'l Law 283; Jensen and Kingston 2010 JIBFL 549.
36 Qumba 2022 SALJ 105; Godwin and Ramsay 2015 CIFR Paper 252; Godwin, Li and Ramsay 2016 HKLJ 628; Jensen and Kingston 2010 JIBFL 556.
37 Section 34(1)(d) of the FSR Act; Osode 2021 IJEBL 14; see related comments by Goodspeed 2017 SA Financial Regulation Journal 16; also see Manguzvane and Muteba Mwamba 2019 International Review of Applied Economics 632.
38 Section 34(1)(d) of the FSR Act.
39 Osode 2021 IJEBL 14; see related comments by Botha and Makina 2011 IBERJ 30; Godwin and Schmulow 2015 SALJ 760; Schmulow 2011 AJICL 401.
40 Section 34(1)(f) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 118; Van Heerden and Van Niekerk 2017 THRHR 642; Van Heerden and Van Niekerk 2018 LFMR 159; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; Chitimira and Magau 2022 EIRP Proceedings 366.
41 PA date unknown https://www.resbank.co.za/content/dam/sarb/what-we-do/prudential-regulation/PA%20Regulatory%20and%20Supervisory%20Strategy%202021.pdf 29; Visagie-Swart and Lawack 2020 SA Merc LJ 132.
42 PA date unknown https://www.resbank.co.za/content/dam/sarb/what-we-do/prudential-regulation/PA%20Regulatory%20and%20Supervisory%20Strategy%202021.pdf 29; see related comments by Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 14; Chitimira and Magau 2022 EIRP Proceedings 367.
43 PA date unknown https://www.resbank.co.za/content/dam/sarb/what-we-do/prudential-regulation/PA%20Regulatory%20and%20Supervisory%20Strategy%202021.pdf 28; see related comments by Osode 2021 IJEBL 23; also see Susskind and Vines 2020 Oxford Review of Economic Policy Journal 1, 6.
44 Sections 33(d) and 34(b) of the FSR Act; see related comments by Van Niekerk and Van Heerden 2020 SALJ 118; Van Heerden and Van Niekerk 2017 THRHR 642; Van Heerden and Van Niekerk 2018 LFMR 159; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; Chitimira and Magau 2022 EIRP Proceedings 366.
45 Section 34 of the FSR Act; see related comments by Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; Chitimira and Magau 2022 EIRP Proceedings 366; see related comments by Van Niekerk and Van Heerden 2020 SALJ 121.
46 Section 34(3) of the FSR Act; see related comments by Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 12; Chitimira and Magau 2022 EIRP Proceedings 366.
47 Section 56 of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 115; Godwin and Schmulow 2015 SALJ 759; Schmulow 2017 AJICL 398; Govender 2019 Without Prejudice 6.
48 See ss 57 and 58 of the FSR Act; Osode 2021 IJEBL 18; Qumba 2022 SALJ 99; Van Niekerk and Van Heerden 2020 SALJ 118; Van Heerden and Van Niekerk 2017 THRHR 636.
49 Section 57(a)-(b) of the FSR Act; Chitimira Market Abuse Regulation 41; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 9; Chitimira and Magau 2022 EIRP Proceedings 366.
50 Section 57(c) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 119; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 9; Chitimira and Magau 2022 EIRP Proceedings 366.
51 Sections 32-34 and 167-174 of the FSR Act; Chitimira Market Abuse Regulation 41; Van Wyk 2019 THRHR 395; Schmulow 2017 Law and Financial Markets Review 165.
52 See related comments by Chitimira and Lawack 2013 Obiter 212; Chitimira and Lawack 2012 Obiter 552; Chitimira Market Abuse Regulation 160.
53 Chitimira Market Abuse Regulation 45; see related comments by Luiz 2011 SA Merc LJ 163; Osode 1999 AJICL 705; Chitimira 2014 Mediterranean Journal of Social Sciences 245.
54 See related comments by Luiz 2011 SA Merc LJ 162; also see Chitimira 2019 IJEBL 110; Schmulow 2017 Law and Financial Markets Review 168.
55 Section 58(4) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 120; Qumba 2022 SALJ 101; see related comments by Osode 2021 IJEBL 18.
56 Schmulow 2017 AJICL 395; Basel Committee on Banking Supervision 2012 https://www.bis.org/publ/bcbs230.pdf principle 3; see related comments by Keenan 2006 Norton Journal of Bankruptcy Law and Practice 135; Bordo and Schwartz 1999 JIMF 686.
57 Chitimira Market Abuse Regulation 46; Chitimira and Lawack 2012 Obiter 552; see related comments by Chitimira 2019 IJEBL 110; Schmulow 2017 Law and Financial Markets Review 168.
58 Marcacci 2012 Richmond Journal of Global Law and Business 24; IOSCO 2002 https://www.iosco.org/library/pubdocs/pdf/IOSCOPD386.pdf; IOSCO Board 2019 https://www.bis.org/cpmi/publ/d189.pdf..
59 Marcacci 2012 Richmond Journal of Global Law and Business 26; Malaysia Securities Commission 2015 https://www.sc.com.my/development/international/cross-border-co-operation/list-of-iosco-multilateral-mou-signatories; see related comments by Chitimira and Lawack 2013 Obiter 208.
60 Section 58 of the FSR Act; see related comments by Qumba 2022 SALJ 104; Chitimira Market Abuse Regulation 42.
61 Sections 134-139 of the FSR Act; see related comments by Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 10; Sithole 2018 Financial Sector Conduct Authority 22.
62 Section 106(2)(a)-(e) of the FSR Act; Viljoen, Lallo and Bunge "Financial Sector Regulation Act: Implementing Twin Peaks and the Impact on the Industry" 8; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 10; Schmulow 2017 Law and Financial Markets Review 169.
63 Section 144(1) and (4) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 118; see related comments by Godwin and Schmulow 2015 SALJ 761; Van Wyk 2019 THRHR 396.
64 Section 144(4) of the FSR Act; Van Heerden and Van Niekerk 2017 THRHR 647; Van Niekerk and Van Heerden 2020 SALJ 119; Van Wyk 2019 THRHR 395; Schmulow 2017 LFMR 169.
65 SARB and FSCA 2022 https://www.fsca.co.za/Regulatory%20Liaison/MOU_FSCA%20and%20SARB.pdf; see related comments by Van Niekerk and Van Heerden 2020 SALJ 119; also see Qumba 2022 SALJ 102.
66 Section 34(1)(b) of the FSR Act; Osode 2021 IJEBL 18; Qumba 2022 SALJ 99; Van Niekerk and Van Heerden 2020 SALJ 118; Van Heerden and Van Niekerk 2017 THRHR 636.
67 See related comments by Chitimira Market Abuse Regulation 44; Chitimira and Lawack 2013 Obiter 212; Chitimira and Lawack 2012 Obiter 552; Luiz 2011 SA Merc LJ 163.
68 Section 20 of the FSR Act; see related comments by Godwin and Schmulow 2015 SALJ 765; Qumba 2022 SALJ 112; also see Van Heerden and Van Niekerk 2018 LFMR 157.
69 Section 20(2)(b) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 117; Godwin 2017 LFMR 187; Van Heerden and Van Niekerk 2018 LFMR 158.
70 See s 21 of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 117; see related comments by Hollander and Van Lill 2019 https://ideas.repec.org/p/sza/wpaper/wpapers325.html 12; also see Godwin, Howse and Ramsay 2017 SALJ 670.
71 Section 21(c) of the FSR Act; see related comments by Schmulow 2015 CIFR Paper Series 9; Goodspeed 2017 SA Financial Regulation Journal 18; Van Heerden and Van Niekerk 2018 LFMR 158.
72 Van Heerden and Van Niekerk 2018 LFMR 158; Van Heerden and Van Niekerk 2017 THRHR 645; see related comments by Qumba 2022 SALJ 96; also see Godwin, Li and Ramsay 2016 HKLJ 635.
73 Section 21 (c)(i)-(ii) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 117; see related comments by Qumba 2022 SALJ 96; Schmulow 2017 AJICL 398; also see Osode 2021 IJEBL 18.
74 Godwin, Li and Ramsay 2016 HKLJ 630; Llewellyn "Institutional Structure of Financial Regulation" 28; Godwin, Howse and Ramsay 2017 SALJ 701; Godwin and Schmulow 2015 SALJ 758.
75 See related comments by Schmulow 2017 AJICL 398; also see Osode 2021 IJEBL 18; Godwin and Schmulow 2015 SALJ 761.
76 Section 21 of the FSR Act; see related comments by Godwin, Howse and Ramsay 2017 SALJ 681; Van Heerden and Van Niekerk 2017 THRHR 652; see related comments by Chitimira 2020 Acta Universitatis Danubius Juridica 280.
77 Section 24 of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 118; see related comments by Godwin and Schmulow 2015 SALJ 761.
78 Section 25(2) of the FSR Act; Schmulow 2017 AJICL 395; Godwin, Howse and Ramsay 2017 SALJ 670; Godwin, Kourabas and Ramsay 2016 Int'l Law 279.
79 See related comments by Chitimira 2020 Acta Universitatis Danubius Juridica 280; Godwin, Howse and Ramsay 2017 SALJ 681; Van Niekerk and Van Heerden 2020 SALJ 118; Van Heerden and Van Niekerk 2017 THRHR 652.
80 Section 25(1) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 118; see related comments by Schmulow 2017 AJICL 398; also see Osode 2021 IJEBL 18; Godwin and Schmulow 2015 SALJ 761.
81 Section 25(6) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 118; Van Heerden and Van Niekerk 2017 THRHR 652; see related discussion by Chitimira 2020 Acta Universitatis Danubius Juridica 280; Godwin, Howse and Ramsay 2017 SALJ 681.
82 Section 25(2) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 118; see related comments by Godwin, Howse and Ramsay 2017 SALJ 681; Godwin 2017 LFMR 152.
83 See related comments by Van Heerden, Van Niekerk and Huls 2020 THRHR 510; Van Niekerk and Van Heerden 2020 SALJ 118.
84 Section 79 of the FSR Act.
85 Section 79(2) of the FSR Act; Godwin and Schmulow 2015 SALJ 768; Van Niekerk and Van Heerden 2020 SALJ 123; Van Heerden, Van Niekerk and Huls 2020 THRHR 501.
86 Section 79(2) of the FSR Act; Godwin and Schmulow 2015 SALJ 768; Van Niekerk and Van Heerden 2020 SALJ 123; Qumba 2022 SALJ 96; Osode 2021 IJEBL 20.
87 Schmulow 2017 AJICL 401; Godwin, Howse and Ramsay 2017 SALJ 665; see related comments by Godwin, Kourabas and Ramsay 2016 Int'l Law 282.
88 Section 79(3) of the FSR Act; Godwin and Schmulow 2015 SALJ 761; see related comments by Godwin, Li and Ramsay 2016 HKLJ 635; Godwin 2017 LFMR 187.
89 Section 79(4) of the FSR Act; see related comments by Kourabas "Trends and Theory in Financial Regulation" 35; Kourabas 2018 JBFLP 187; Godwin and Schmulow 2015 SALJ 762.
90 Section 79(2) of the FSR Act; Kourabas 2018 JBFLP 187; Godwin, Li and Ramsay 2016 HKLJ 635; also see Godwin 2017 LFMR 185.
91 Section 79 of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 118; Schmulow 2017 AJICL 401; Godwin, Howse and Ramsay 2017 SALJ 665.
92 Section 80(1) of the FSR Act; Godwin and Schmulow 2015 SALJ 768; Van Niekerk and Van Heerden 2020 SALJ 118; see related comments by Kourabas 2018 JBFLP 188.
93 Hanrahan 2019 LFMR 127; Schmulow, Fairweather and Tarrant 2018 Law and Financial Markets Review 195; Godwin and Ramsay 2015 CIFR Paper 251; Jensen and Kingston 2010 JIBFL 549.
94 See related comments by Godwin and Schmulow 2015 SALJ 767; Kourabas 2018 JBFLP 188; Godwin, Li and Ramsay 2016 HKLJ 638.
95 Section 2 of FICA^ Chitimira and Munedzi 2021 Journal of Comparative Law in Africa 43; Chitimira 2021 JMLC 790.
96 Chitimira and Munedzi 2021 Journal of Comparative Law in Africa 44; Burchell 2010 SAJCJ 178; De Koker 2003 JMLC 29; see related comments by Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 16.
97 Section 21 of the FICA; see related comments by Chitimira 2021 JMLC 790; Schlenther 2013 JMLC 131; Chitimira and Munedzi 2021 Journal of Comparative Law in Africa 44.
98 Section 76 of the FSR Act; see related comments by Chitimira Market Abuse Regulation 42; Van Niekerk and Van Heerden 2020 SALJ 118; Godwin 2017 LFMR 186; Van Heerden and Van Niekerk 2018 LFMR 158.
99 Section 76 of the FSR Act; ss 4 and 5 of FICA. See related comments by Van Niekerk and Van Heerden 2020 SALJ 125; also see Chitimira Market Abuse Regulation 46.
100 See s 77 of the FSR Act; see related comments by Van Niekerk and Van Heerden 2020 SALJ 125; FIC, SARB and PA 2018 https://www.fic.gov.za/Documents/MOU%20-%20SARB%20%20FIC%20(Combined).pdf.
101 Sections 76 and 77 of the FSR Act; FIC, SARB and PA 2018 https://www.fic.gov.za/Documents/MOU%20-%20SARB%20%20FIC%20(Combined).pdf para 5.2.
102 Section 12 of the NCA; Vessio 2008 SA Merc LJ 228; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 13; Van Heerden 2013 De Jure 969.
103 Section 12(2) of the NCA; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 13; Simpson 2013 Without Prejudice 9; Vessio 2008 SA Merc LJ 228.
104 Sections 13(a)-(d), 14-15 and 16-25 of the NCA; Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 13; see related comments by Van Heerden and Coetzee 2011 De Jure 42.
105 Sections 26, 27, 76 and 77 of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 119; Chitimira Market Abuse Regulation 41; Godwin, Howse and Ramsay 2017 SALJ 668.
106 FSCA and NCR 2018 https://www.fsca.co.za/Regulatory%20Liaison/MoU_%20FSCA%20and%20NCR.pdf para 2.1.
107 SARB, PA and NCR 2018 https://www.resbank.co.za/content/dam/sarb/publications/prudentialauthoritypa-financial/sector-regulation-act/2018/8803/PA-SARB-NCR-Memorandum-of-Understanding.pdf.
108 See SARB, PA and NCR 2018 https://www.resbank.co.za/content/dam/sarb/publications/prudentialauthoritypa-financial/sector-regulation-act/2018/8803/PA-SARB-NCR-Memorandum-of-Understanding.pdf paras 4.1.2.1-4.1.2.2; see related comments by Van Heerden and Van Niekerk 2017 THRHR 652; Van Heerden, Van Niekerk and Huls 2020 THRHR 501; Godwin, Howse and Ramsay 2017 SALJ 668.
109 Section 83(2) of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 118; Godwin, Howse and Ramsay 2017 SALJ 692; see related comments by Qumba 2022 SALJ 97; see related comments by Van Heerden and Van Niekerk 2017 THRHR 652.
110 Section 83 of the FSR Act; Godwin, Howse and Ramsay 2017 SALJ 692; Van Niekerk and Van Heerden 2020 SALJ 118; National Treasury 2011 https://www.treasury.gov.za/twinpeaks/20131211%20-%20item%202%20a%20safer%20financial%20sector%20to%20serve%20south%20africa%20better.pdf 18.
111 Section 83(3) of the FSR Act; Schulze 2017 Annual Survey of South African Law 512; Godwin and Schmulow 2015 SALJ 768; Godwin, Howse and Ramsay 2017 SALJ 692.
112 Section 83 of the FSR Act; Van Niekerk and Van Heerden 2020 SALJ 134.
113 Sections 86(1)faj and (b) and 86(5) of the FSR Act.
114 Choo 2008 JMLC 372; Choo 2010 Trends and Issues in Crime and Criminal Justice 2; Menz 2020 Journal of Financial Crime 969.
115 Choo 2008 JMLC 373; Choo 2010 Trends and Issues in Crime and Criminal Justice 2; Menz 2020 Journal of Financial Crime 969.
116 Sections 44-45 of FICA^ Chitimira and Ncube 2020 Acta Universitatis Danubius Juridica 16; see related comments by Chitimira Market Abuse Regulation 41; also see Jooste 1990 De Ratione 25; Jooste 2006 SALJ 289.
117 Jooste 1990 De Ratione 25; Jooste 2006 SALJ 289; Chitimira Market Abuse Regulation 46; Chitimira and Lawack 2013 Obiter 216.
118 Jooste 1990 De Ratione 25; Jooste 2006 SALJ 290; Chitimira Market Abuse Regulation 46; Chitimira and Lawack 2013 Obiter 217.
119 Van Niekerk and Van Heerden 2020 SALJ 112; Llewellyn "Institutional Structure of Financial Regulation" 28; Godwin and Schmulow 2015 SALJ 758; Godwin 2017 LFMR 185; Godwin, Howse and Ramsay 2017 SALJ 670.
120 Van Niekerk and Van Heerden 2020 SALJ 112; Llewellyn "Institutional Structure of Financial Regulation" 28; Godwin and Schmulow 2015 SALJ 758; Godwin 2017 LFMR 185; Godwin, Howse and Ramsay 2017 SALJ 670.