Pansy Tlakula, the Information Regulator, has ordered the Johannesburg Stock Exchange to turn over records of suspicious trades that may reveal insider trading.
(Image: Information Regulator, African Capital Digest, Canva) 
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.
The complaint related to a request for information that Inhlanhla had filed with the JSE in 2023 through a Promotion of Access to Information Act (Paia) request. Inhlanhla had sought access to records and documents about trades executed on the JSE between 3 and 19 May 2020 in respect of shares of a company, enX Group Ltd.
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.
We wrote about that Paia request last year.
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.
- Read more about the Information Regulator’s decision ordering SARS to release former president Jacob Zuma’s tax records here.
Finding the correct balance is key to ensuring accountability.
Disclosure is the legal default
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.
In this case, the regulator found that the JSE had failed to discharge its onus because it had only provided a “mere assertion” and “pure speculation” that the disclosure would cause harm.
The JSE is a public body
The regulator considered the question of whether in this context the JSE was a public or private body. This was important because the “reasons and motive” for the request are irrelevant for a request to a public body, whereas for a request to a private body the request has to be justified in terms of rights that the requester is seeking to protect or vindicate.
Inhlanhla made the Paia request as if the JSE was a public body, whereas in its dispute of the complaint, the JSE asserted that it was a private body.
The regulator found otherwise.
The regulator noted that the JSE itself aligned its Paia manual and other processes with the legislation’s provisions governing public (not private) bodies, and that its decision to refuse Inhlanhla’s request was made in terms of Paia’s grounds of refusals for public bodies. It found that “the JSE presented itself as a public body for purposes of Paia to the general public and to [Inhlanhla] in particular”.
It also refers to an old case from the Johannesburg High Court which had held that “[t]o regard the JSE as a private institution would be to ignore commercial reality and... ignore the very public interest which the Legislature... has sought to protect”.
The records requested by Inhlanhla are records reflected in the JSE’s Broker Deal Accounting (BDA) system. According to the JSE’s submissions, information is supplied by traders and brokers to the JSE for the purpose of enabling the JSE to fulfil its monitoring functions and regulatory responsibilities in the Financial Markets Act (FMA).
The regulator ruled that this demonstrated unequivocally that those records were held in the exercise of a public function – and therefore for the purpose of such a Paia request the JSE was a public body.
Personal information
The second legal principle the regulator addressed is whether the disclosure of the personal information in the records sought by Inhlanhla would be “unreasonable”. Paia only prohibits the unreasonable disclosure of personal information, not all and any disclosure of that type of information.
The JSE had maintained that it could not provide the information sought because it included the names, addresses, contact information, ID numbers, residency status and possibly the tax number of the JSE’s clients. It submitted that the JSE did not have the client’s consent to disclose this information, it was not publicly available and it could not be meaningfully severed from records disclosed to Inhlanhla.
The regulator discussed the importance of balancing the rights of access to information and to privacy.
A key question in this balancing exercise is whether the disclosure of information would intrude into the “inner sanctum of the private and personal life of the individual”. The regulator highlighted that the recognition of privacy is to protect an individual’s personal affairs and that the “concept of privacy does not extend to a person’s business affairs”.
South Africa’s courts have discussed the limited nature of the privacy of business transactions and information in the past, and this enforcement notice builds on these broad legal principles.
The regulator found that “society would not recognise an expectation of privacy by participants in the relevant enX Group trades to be reasonable”.
Contractual confidentiality
Finally, the regulator confirmed that a contractual confidentiality agreement can never trump Paia’s requirements of transparency and disclosure. It stated that “a duty of confidence cannot simply be created by agreement; non-confidential matters should not trump the constitutional right of access”.
This is important because, as the Supreme Court of Appeal found in 2006, it cannot be permissible for parties to a contract to simply subvert Paia’s requirements by inserting a confidentiality clause.
This is true too for the JSE’s reliance on its governing legislation – the FMA – which prohibits the disclosure of confidential information “unless disclosure is required or permitted in terms of a law or a court order”.
The regulator confirmed that Paia is a law that permits disclosure, and so Paia must trump any supposed prohibition on disclosure under the FMA.
In sum, this meant that the regulator found that the JSE had failed to demonstrate that a legitimate ground for refusing Inhlanhla’s request existed and so ordered it to disclose all the requested information.
Audi
However, one legal principle that is fundamental in our law is audi alteram partem – “hear the other side”. Paia recognises this principle in its requirement that bodies that have received a request for information inform any third parties who may be affected by the disclosure of the requested information and give them an opportunity to make submissions on whether they believe the body should grant the request.
The JSE did not issue any notices in terms of Paia to third parties affected by Inhlanhla’s request. The regulator found that all third parties still had a right to make representations on the possible disclosure of the information sought by Inhlanhla.
Accordingly, the regulator instructed the JSE to issue the notices to third parties as required by Paia, and conditioned the release of the information to Inhlanhla on its consideration of any third parties’ submissions.
A broader impact
While the crux of the regulator’s enforcement notice focused on the technicalities of the JSE’s refusal, it did touch on the underlying reasons for Inhlanhla’s request.
In discussing the expectation of privacy, the regulator noted that the question was “whether society expects personal information of participants in a highly regulated socioeconomic activity, to be protectable; particularly where there are serious allegations made of market manipulation” (our emphasis).
The JSE plays a crucial role in regulating the market – but has been able to use its confidentiality clauses and contractual arrangements to deflect true accountability. How many of us really know what goes on behind that slick glass frontage?
The JSE told us that it will be reviewing the decision and will be applying to court to set aside the enforcement notice. It said that “[g]iven that this matter involves personal, commercially sensitive and confidential regulatory information, it would be inappropriate for the JSE to make any substantive comment at this stage”.
Inhlanhla’s request isn’t an abstract request for information. Paia requests seldom are. The legislation frequently serves as the only opportunity for individuals to access information that will help them to vindicate their own rights or hold other people accountable.
For too long, Paia requests have been treated as nuisances by bodies across the public and private sector. As the regulator has noted here, refusals are given with no justification and processes are not followed.
And for too long, regulatory bodies and other entities with public and private functions have failed to accept their obligations to be accountable to the South African public as well as their shareholders.
But this enforcement notice is a warning to the JSE and other similarly placed bodies.
Can we dare to hope that this positive start to 2026 will continue? DM