This year started with a slap-down for the Johannesburg Stock Exchange (JSE) as the Information Regulator laid down the law on disclosure. On 5 January, the regulator, advocate Pansy Tlakula, delivered her enforcement notice on a complaint filed against the JSE by Inhlanhla Ventures. She set aside the JSE’s refusal to disclose a series of share trades alleged by Inhlanhla to be suspicious – and ordered the exchange to notify all those involved in the trades so that they could submit representations on the release of the records requested by Inhlanhla.
Inhlanhla, which was adversely impacted by the trades, believed there had been market manipulation, but lacked the necessary evidence for who was behind the trading to confirm or refute its suspicions. So it asked the JSE, which records and stores this trading information, to hand it over. The regulator’s enforcement notice confirms the finding of the regulator’s Enforcement Committee and its Paia division’s preliminary findings.
The enforcement notice is a carefully reasoned document, setting out the law and legal precedent for its decision. It highlights the imperatives of transparency and the principles of privacy in respect of companies in our constitutional regime. The recent decisions from the regulator are important contributions to South Africa’s understanding of what our laws require public and private bodies to disclose and how individuals’ and companies’ rights to privacy should be balanced with the fundamental principles of transparency.
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Finding the correct balance is key to ensuring accountability. The first legal principle the enforcement notice highlighted is that our legal system sees access to information as the norm and any exemptions are exceptions. Paia does set out circumstances in which disclosure can or must be refused – but the regulator stressed that these must be “narrowly construed” and that the burden of justifying that the grounds apply falls squarely on the body seeking to refuse an access request.
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