PUBLIC COMMENTS
Comments Matrix – Draft Guidelines on the Interpretation of Section 73 of the Financial Markets Act 19 of 2012
PARAGRAPH
General
General
WORDING / PROPOSED WORDING
COMMENT
OUR RESPONSE
We agree that the investor‟s identity number,
email address and phone number should be
treated as confidential information as this
information, in the wrong hands, could be
misused for fraudulent or irregular purposes.
Noted.
In our view, the Issuer Agent/Transfer Secretary
is in a better position to provide a complete
register (including the certificated portion of the
register) and we are able to assist data vendors
to obtain the relevant data they require including
the name, address and holdings of shareholders
Please could you clarify what is the definition of
third parties? As a Central Securities Depository
Participant (CSDP) we are required to provide
information to the regulator (Strate) in terms of
the Strate Rules or to the Issuer in terms of the
Companies Act. Would Strate and the Issuer be
regarded as third parties? Or do third parties refer
to any other party other than Strate and the
Issuer?
Section 73 concerns the dissemination of
information by a market infrastructure.
Paragraphs 3 to 6 were added to the draft
Guidelines to provide clarity
In many instances the CSDP will maintain
accounts for Asset managers who have
underlying clients. The relationship is between
the Asset Manager and the CSDP, so the
address and e-mail address will be that of the
Asset Manager and not the address/e-mail
address of the registered holder of securities
(which is the CSDP Nominee) or the beneficial
owner. Is this acceptable as the guideline
stipulates that the address be in that of the
beneficial owner or registered holder of the
securities?
Section 73 does not regulate the obligatory
information to be kept by participants – this
will be regulated through the depository
rules and the Companies Act, 2008 and
regulations promulgated under the
Companies Act.
Section 73 applies to market
infrastructures. This will be clarified in the
Guidelines.
PUBLIC COMMENTS
Comments Matrix – Draft Guidelines on the Interpretation of Section 73 of the Financial Markets Act 19 of 2012
1)
The draft guidelines include in the
„Description of information‟ elements such as „email address, phone number, client identifier‟.
However, whilst the FMA defines „confidential
information‟, it does not contain specific reference
to what constitutes confidential information.
Not agreed, confidential information is
defined in the FMA. It will depend on the
circumstances of each case whether the
specific information conforms to the
classification.
2)
Registered and Beneficiary account –
the account number of the nominee or own name
client in the books of a participant
•
Guidelines allow disclosure as it is not
„personal information‟ as defined in the FMA
•
However, „Personal information‟ is NOT
defined in FMA, only „confidential information‟
which refers to personal information
The Guidelines have been amended to “not
confidential information”.
Suggestion
Align the „Description of information‟ with
definition and /or examples in the Protection of
Personal Information (PoPI) Act to eliminate room
for debate or different interpretation
3)
Reference to Companies Act –
information considered to be generally available
or known to others – „Not within the ambit of
section 73(1) and may be disclosed‟
Suggestion
Add „subject to the requirements of the
Companies Act and Promotion of access to
information act‟ to the above „Use‟ in the
guidelines
Not agreed.
PUBLIC COMMENTS
Comments Matrix – Draft Guidelines on the Interpretation of Section 73 of the Financial Markets Act 19 of 2012
I strongly object to my personal shareholding
details be made available to the public.
I
am
a
retired
pensioner
where
my personal investments are virtually all invested
in public shares. These holdings already seem to
be available to persons who continually pester
me by phone calls and emails soliciting business
of all kinds. Should you allow public access it
could only become much worse and I will have no
peace.
General
Please don't allow public access
Use terminology in the guidelines that is
consistent with the Financial Markets Act to avoid
ambiguity in interpretation.
These concerns are noted. The
Regulations promulgated under the
Companies Act provides that a person may
decline to provide his or her email address.
The approach taken by the registrar in the
Guidelines is that although some of the
information, such as the telephone number
and identity number of a shareholder, is
contained in the share register, a market
infrastructure should not disclose such
information in circumstances not
contemplated in section 73.
Agreed
In the classification column, it is recommended
that “Not personal information” be amended to
read “ Not confidential Information” to align with
the wording in the FMA.
Email Address
The guidelines issued by the FSB for comment
are welcomed as these proposed changes will
allow the openness and transparency of share
ownership in South African Financial Markets to
be re-established.
Ince (Pty) Ltd acts as an agent on behalf of many
Issuers whose shares are listed on the
Johannesburg Stock Exchange and in the course
of its business provides services enabling the
There must be a balance between
transparency and the protection of
confidential information. The Guidelines are
not concerned with the information provided
to issuers by the central securities
depository but with information provided to
other parties such as data vendors.
PUBLIC COMMENTS
Comments Matrix – Draft Guidelines on the Interpretation of Section 73 of the Financial Markets Act 19 of 2012
creation and dissemination of financial
advertising material to investors in terms of
Issuers‟ continuing obligations as defined by the
Listing Requirements of the JSE.
In order to comply with their obligations as
speedily as possible, Issuers are allowed to issue
investor communications electronically to their
investors. In order to achieve this, an email
address may be defined as an extension of a
shareholder‟s registered address that is solely
used for the purpose of electronic dissemination
of information.
It is our considered opinion that if the shareholder
has voluntarily made their e-mail address known,
that this is now no longer confidential and that it
should also be supplied along with the
shareholder‟s address details.
The absence of email addresses will make it
impossible for Issuers to disseminate information
electronically to their investors as required by the
requirements of the Companies Act (Act 71 of
2008)(as amended), and the Listings
Requirements of the JSE (as amended). It is also
important to note that not all investors have
access to SENS and that they rely on
announcements being sent to them.
At the very least, investors who have elected to
be communicated direct by the Issuers that have
already disclosed an email address to either a
Central Securities Depositary Participant (CSDP)
within STRATE or recognised custodial nominees
within a CSDP should have their email address
disclosed as an integral part of the shareholders‟
registered address in terms of the guidelines.
PUBLIC COMMENTS
Comments Matrix – Draft Guidelines on the Interpretation of Section 73 of the Financial Markets Act 19 of 2012
Email Address
The person‟s e-mail address ito the Companies
Act and Regulation 32(2) is information
considered to be generally available or known to
others.
Agreed.
In terms of regulation 32(6) insofar as the e-mail
address of a person may be entered into a
register kept under this regulation, such
information may, at the instance of the company,
CSD or relevant participant as the case may be,
be regarded as confidential.
Phone number of the
beneficiary or
registered holder of
securities
Client identifier
Correct classification – May not be disclosed
other than in accordance with section 73(1) of the
Act.
Noted
In terms of the Companies Act and Regulation
32(2) a South African identity number is
information considered to be generally available
or known to others
It is not agreed that a person‟s identity
number is inevitably considered to be
„generally available to others‟ in each
instance due to the restraint placed by
regulation 32(6).
In terms of section 32(1)(a) of the Companies
Act, a company must provide its full registered
name or registration number to any person on
demand- it is submitted that the registration
number is not correctly classified as “Confidential
information as contemplated in the Act” as it is
generally available to or known by others.
Registered account
Beneficiary account
Clarification as to whether correctly categorised
as “Not personal information” and whether
intention was to classify it as “Not confidential
information”
Unique identifying number in terms of POPI
classification of “personal information”
Clarification as to whether correctly categorised
as “Not personal information” and whether
Agreed
Agreed
PUBLIC COMMENTS
Comments Matrix – Draft Guidelines on the Interpretation of Section 73 of the Financial Markets Act 19 of 2012
intention was to classify it as “Not confidential
information”
Identification number
Investor classification
Title of beneficiary
Name of beneficiary or
registered holder of
securities
Unique identifying number in terms of POPI
classification of “personal information”
Clarification as to whether correctly categorised
as “Not personal information” and whether
intention was to classify it as “Not confidential
information”
Unique identifying number in terms of POPI
classification of “personal information”
Clarification as to whether correctly categorised
as “Not personal information” and whether
intention was to classify it as “Not confidential
information”
Unique identifying number in terms of POPI
classification of “personal information”
Sex, marital status, gender – in terms of POPI
classification of “personal information”
No comment, correct classification – but subject
to POPI interplay
Agreed
Agreed
Agreed - guidelines have been amended
accordingly
Noted
Information considered to be generally available
or known to others. Information required to be
entered into securities register in terms of
Companies Act
Address of beneficiary
or registered holder of
securities
No comment, correct classification – but subject
to POPI interplay
Information considered to be generally available
or known to others. Information required to be
entered into securities register in terms of
Companies Act
Noted
PUBLIC COMMENTS
Comments Matrix – Draft Guidelines on the Interpretation of Section 73 of the Financial Markets Act 19 of 2012
Postal code of
beneficiary or
registered holder of
securities
Quantity of shares
held by the beneficiary
or registered holder of
securities
No comment, correct classification – but subject
to POPI interplay
Information considered to be generally available
or known to others. Information required to be
entered into securities register in terms of
Companies Act
No comment, correct classification – but subject
to POPI interplay
Information considered to be generally available
or known to others. Information required to be
entered into securities register in terms of
Companies Act
Noted
Noted