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FSB victory in market abuse case

28 September 2017   (0 Comments)
Posted by: Author: George van Niekerk
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Author: George van Niekerk (ENSafrica)

The Supreme Court of Appeal handed down judgment today, 28 September 2017, in the matter of Pather v Financial Services Board.

The decision concerns a challenge to the jurisdiction of the Enforcement Committee of the Financial Services Board (“FSB”) to deal with market abuse, specifically in this case publishing false statements that resulted in an overstatement of the performance of their company.

The two appellants were Maslamony Pather and Ah-Vest Ltd (formerly All Joy Foods Ltd).

They did not contend that the factual findings of the Enforcement Committee of the FSB were wrong.

Rather, they argued that a hearing by the Enforcement Committee on charges of market abuse (such as insider trading, market manipulation, and false statements) that results in the imposition of an administrative penalty is similar to a criminal prosecution, and hence the standard of proof should be beyond reasonable doubt, rather than the civil standard, which is proof on a balance of probabilities.

The Supreme Court of Appeal dismissed their argument.

It confirmed that the purpose of the Securities Services Act (which applied at the time and was subsequently replaced by the Financial Markets Act, 2012) is to protect the public and promote confidence in the market.

The FSB’s Department of Market Abuse investigates contraventions of the Act, and refers them to the Enforcement Committee for decision. The purpose of the legislative scheme is (i) to ensure that financial services are provided in a fair, efficient and transparent manner; and (ii) to maintain a stable financial market environment.

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