| (1) |
The Authority must as soon as possible after issuing a licence to a market infrastructure that is required to issue rules, cause the rules made by that entity to be published in the Gazette at the expense of the entity concerned. |
[Section 71(1A) inserted by section 290, item 51(a) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (a) |
A market infrastructure may, subject to this section, amend or suspend its rules in accordance with the consultation process set out in the rules, which process must provide for— |
| (i) |
the persons who are to be consulted; and |
| (ii) |
the manner in which consultation will happen, including the time period or periods allowed for consultation. |
| (b) |
The Authority may, after consultation with the Prudential Authority and the South African Reserve Bank, subject to this section, amend the rules or issue an interim rule. |
[Section 71(2)(b) substituted by section 290, item 51(b) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)
| (a) |
A proposed amendment, other than a suspension, of the rules must be submitted to the Authority for approval and must be accompanied by an explanation of the reasons for the proposed amendment and any concerns or objections raised during the consultation process. |
| (b) |
The Authority must as soon as possible after the receipt of a proposed amendment publish— |
| (i) |
the amendment on the Authority's website; and |
| (ii) |
a notice in the Gazette that the proposed amendment is available on the Authority's website, |
calling upon all interested persons who have any objections to the proposed amendment to lodge their objections with the Authority within a period of 14 days from the date of publication of the notice.
[Section 71(3)(b) substituted by section 290, item 51(c) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)
| (c) |
If there are no such objections, or if the Authority has considered the objections and, if necessary, has consulted with the market infrastructure and the persons who raised such objections and has decided to approve or amend the proposed amendment, the Authority must publish— |
| (i) |
the amendment and the date on which it comes into operation on the Authority's website; and |
| (ii) |
a notice in the Gazette, which notice must state— |
| (aa) |
that the amendment to the rules has been approved; |
| (bb) |
that the rules as amended are available on the Authority's website and the website of the market infrastructure; and |
| (cc) |
the date on which the amendment will come into operation. |
[Section 71(3)(c) substituted by section 290, item 51(c) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (a) |
The Authority, after consultation with the Prudential Authority and the South African Reserve Bank, by notice in the Gazette and on the Authority's website, may amend the rules of that market infrastructure— |
| (i) |
if there is an urgent imperative under exceptional circumstances; |
| (ii) |
if it is necessary to achieve the objects of this Act referred to in section 2; and |
| (iii) |
after consultation with the market infrastructure concerned. |
| (b) |
Where the Authority has amended the rules of a market infrastructure under paragraph (a), the Authority must— |
| (i) |
inform the Minister of the amendment, giving reasons for the amendment and explaining the imperative referred to in paragraph (a)(i); and |
| (ii) |
give reasons for the amendment, and explain the imperative referred to in paragraph (a)(i), in the Gazette and on the Authority's website. |
[Section 71(4) substituted by section 290, items 51(d), (e) and (f) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)
| (a) |
Subject to prior approval of the Authority, a market infrastructure may suspend any of the rules of that organisation for a period not exceeding 30 days at a time after reasonable notice of the proposed suspension has been advertised on the Authority's website. |
| (b) |
The Authority may after consultation with the Prudential Authority and the South African Reserve Bank, for the period of such suspension, issue an interim rule by notice in the Gazette to regulate the matter in question. |
| (c) |
Any contravention of or failure to comply with an interim rule, has the same legal effect as a contravention of or failure to comply with a rule. |
[Section 71(5) substituted by section 290, item 51(g) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)
| (a) |
The rules may prescribe that a market infrastructure, or a person to whom the market infrastructure has delegated its disciplinary functions, may where appropriate impose any one or more of the following penalties for any contravention thereof or failure to comply therewith: |
| (iii) |
a fine not exceeding R7.5 million, to be adjusted by the Authority annually to reflect the Consumer Price Index, as published by Statistics South Africa; |
| (v) |
disqualification, in the case of a natural person, from holding the office of a director or officer of a clearing member of an independent clearing house or central counterparty, an authorised user or a participant, as the case may be, for any period of time; |
| (vi) |
a restriction on the manner in which a clearing member of an independent clearing house or central counterparty, an authorised user or a participant may conduct business or may utilise an officer, employee or agent; |
| (vii) |
suspension or cancellation of the authorisation of an officer or employee of a clearing member of an independent clearing house or central counterparty, an authorised user or a participant to perform a function in terms of the rules; |
| (viii) |
any other penalty that is appropriate in the circumstances. |
[Section 71(6)(a) substituted by section 290, item 51(h) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (b) |
The rules may prescribe that— |
| (i) |
full particulars regarding the imposition of a penalty must be published on the website of the market infrastructure or through the news service of the market infrastructure or through a market notice, if any; |
| (ii) |
any person who has contravened or failed to comply with the rules, may be ordered to pay the costs incurred in an investigation or hearing conducted in terms of the rules; |
| (iii) |
a market infrastructure may take into account at a disciplinary hearing any information obtained by the Authority in the course of an inspection conducted in terms of the Financial Sector Regulation Act; |
| (iv) |
a market infrastructure, or a person to whom a market infrastructure has delegated its disciplinary functions, may, upon good cause shown, and subject to the conditions it may impose, vary or modify any penalty which it may previously have imposed upon any person, but that in varying or modifying such penalty, the penalty may not be increased. |
[Section 71(6)(b) substituted by section 290, item 51(i) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (7) |
If a person fails to pay a fine referred to in subsection (6)(a), the market infrastructure may file with the clerk or Authority of any competent court a statement certified by it as correct, stating the amount of the fine imposed, and such statement thereupon has all the effects of a civil judgment lawfully given in that court against that person in favour of the market infrastructure for a liquid debt in the amount specified in the statement. |
| (8) |
This section does not prejudice the common law rights of a person aggrieved by a contravention of or failure to comply with a rule to claim any amount except to the extent that any portion of such amount has been recovered under subsection (6). |
| (9) |
The rules must prescribe the purpose for which a fine referred to in subsection (6) must be appropriated. |
National Environmental Management Act, 1998 (107 of 1998)
