You are currently viewing our desktop site, do you want to download our app instead?
Moneyweb Android App Moneyweb iOS App Moneyweb Mobile Web App

NEW SENS search and JSE share prices

More about the app

FSCA was wrong to shut down JP Markets – Supreme Court

Ruling provides legal certainty to other online brokers operating in SA – and opens the door to a potentially massive damages claim against the authority.
The judgment overturns the liquidation order and was unanimous, with all five judges concurring. Image: Marie Eriel Hobro, Bloomberg

The Financial Sector Conduct Authority (FSCA) was wrong to shut down JP Markets, then SA’s largest online broker with more than 300 000 clients, according to a judgment handed down on Wednesday by the Supreme Court of Appeal (SCA).

The SCA overturned a 2020 ruling by the South Gauteng High Court for the liquidation of JP Markets and ordered the FSCA to pay the costs of two counsel for JP Markets.

“We are delighted with this ruling, which naturally presents us with a few options,” says JP Markets CEO and founder Justin Paulsen.

“The ruling overturns the liquidation order and what is encouraging is that it was the unanimous verdict of all five judges at the SCA.

“Our business was unlawfully destroyed by the FSCA and there has to be accountability for that,” he adds.

“We will be discussing our options with our legal team, and that will include a possible damages claim against the regulator and the resuscitation of JP Markets as an online broking business in SA.”

Read:

The ruling will also give relief to 16 other online brokers the FSCA told Moneyweb that were under investigation for possible regulatory transgressions.

The FSCA says it will abide by the SCA’s judgment and commence processing the application by JP Markets for an over-the-counter (OTP) product provider licence, adding that: “JP Markets is not licensed as an OTP product provider, neither is it entitled to conduct the business of an OTP product provider, until a decision has been made by the authority on the status of its application.” (See the full FSCA statement below).

FSCA ‘overstepped’

Paulsen and JP Markets argued in court that the FSCA had overstepped its regulatory powers by liquidating a company that was not insolvent and that was attempting to bring itself under the ambit of the law by applying for a so-called over-the-counter derivatives provider (ODP) licence, which is required for the trading of a type of derivative product known as contracts for difference, or CFDs.

CFD traders can track the price movements of actual financial instruments without having to own the underlying asset. JP Markets clients could pick from more than 500 instruments, from forex to indices and individual stocks.

Darren Hanekom, attorney for JP Markets, says all allegations levelled against JP Markets and Paulsen in the media and by the FSCA have now been expunged.

“JP Markets is for all intents and purposes absolved and its character as Africa’s biggest forex broker restored,” says Hanekom.

The SCA ruling found that JP Markets had not been guilty of obfuscation, as was claimed by the FSCA, nor did it present a systemic risk to its clients or the financial markets generally, and that there was no conflict of interest in its dealings with clients.

Transparency

JP Markets was transparent in acknowledging that it was counterparty to clients in most trades, meaning it would win where a client lost a trade, and vice versa. There was no attempt to conceal this information.

Clients were broadly split into two categories: A-Book and B-Book. A-Book clients trade directly with what is known as a liquidity provider, who furnishes the bid-offer spread on a trade.

The SCA judgment dealt with JP Markets and its relationship to its B-Book clients, who constituted the bulk of the business.

Certain clients were flagged as ‘toxic’ due to the fact that they attempted to partake in collusive or prohibited trading which violated JP Markets’ terms and conditions.

The SCA found nothing objectionable in the practice of JP Markets issuing differentiated spreads to clients that had been deemed ‘toxic’.

There was no obfuscation by JP Markets in so doing, said the SCA, contradicting the ruling of the lower court.

Flawed decision

The SCA ruling says the decision to liquidate JP Markets was neither “just nor equitable”, which is part of the legal test for the closure of any company by the regulator.

“The starting point must be that JP Markets is a solvent company and a substantial concern. It employs 70 permanent employees at a monthly cost of more than R1 million,” says the SCA ruling.

“It paid in excess of R1 billion to thousands of clients during the period of three months preceding the liquidation application.

“It was not disputed that its own cash equity amounted to approximately R220 million.”

‘Covid crash’ sparked alarm

As part of its motivation in applying to the South Gauteng High Court to close down JP Markets, the FSCA pointed to numerous complaints received by clients during the ‘Covid crash’ on March 16, 2020, a crash severe enough to trigger a trading halt in thousands of brokerages across the world.

Due to a technical error, JP Markets continued to quote prices on trading instruments that were either incorrect or absent. Affected clients were restored to the positions they had been in before the trading halt.

“Whilst clients who had lost money were refunded, the profits of others were reversed, which understandably might have caused dissatisfaction and complaints,” reads the SCA ruling.

“JP Markets nevertheless pointed out that around 100 dissatisfied clients did not represent a large percentage of its approximately 300 000 clients. It said that it did its utmost to retain clients in a very competitive environment. It said it would be counterproductive to arbitrarily deny withdrawal requests or to cause unnecessary delays, and that it did not do so.

“The evidence therefore did not establish that the business of JP Markets constituted a systemic risk to its clients or to financial markets generally. It follows that the only remaining relevant factor was that JP Markets had been doing business as an ODP [OTC derivative provider] without a licence. In this regard it was in the first place not irrelevant that it was not the only one to do so.”

In the course of the legal process, it emerged that few of JP Markets’ competitors had applied for an ODP licence, and that the FSCA had not taken steps against any of these.

Justin Paulsen, JP Markets, FSCA

Vindicated – Justin Paulsen, founder of JP Markets. Image: Supplied

FSCA responds to SCA judgment

The FSCA has noted the decision of the Supreme Court of Appeal (SCA) to overturn the judgement of the Gauteng Division of the High Court, which had allowed for the liquidation of JP Markets (Pty) Ltd. The FSCA has also noted the Honourable Court’s interpretation with reference to the fair and equitable principle.

The Authority intends to abide by the judgment and will now proceed with the processing of the application by JP Markets for an over-the-counter (OTP) product provider licence, and the consideration of all outstanding enforcement actions.

The FSCA brings to the attention of the public that JP Markets is not licensed as an OTP product provider, neither is it entitled to conduct the business of an OTP product provider, until a decision has been made by the Authority on the status of its application.

Members of the public should always check that an entity or individual is registered with the FSCA to provide financial advisory & intermediary services and what category of advice it is that the entity is registered to provide. There are instances where persons are registered to provide basic advisory services for a low-risk product and then offer services of a far more complex and risky nature.

The FSCA reminds customers who wish to conduct financial services with an institution or person to check beforehand with the FSCA on either the toll free number (0800 110 443) or on [its website here] whether such institution or person is authorised to render financial services.

AUTHOR PROFILE

VIDEOS

COMMENTS   18

Sort by:
  • Oldest first
  • Newest first
  • Top voted

You must be signed in and an Insider Gold subscriber to comment.

SUBSCRIBE NOW SIGN IN

Liquidate a company that isn’t insolvent???

This is not the first time the FSCA is wrong. More concerning is the idiotic decision by the “High Court”???

I trust and hope they take the whole lot to the cleaners. This is what happens when idiots try and “regulate” something they know NOTHING about.

anc deployment. F all works in this country.

The crypto “regulation” will be a similar disaster!!!

TAKE THEM TO THE CLEANERS PLEASE!!!!

The FSCA is clearly out of its depth. They are also very keen to regulate FinTech and DeFi. What can wrong?

The court found that the FSCA did not treat its clients fairly, that it put its own interests before that of the client, that it operated recklessly, without due concern for the interest of the client. The FSCA exposed the taxpayer to unnecessary legal costs and claims while it abused its powers to shut down a legal enterprise that served members of the public in a satisfactory manner.

Does this imply that the FSCA is now disbarred, or does it mean that their license is suspended or even revoked? Does this mean everyone at the FSCA has to rewrite their RE exams and catch up on their CPD points? Will they have to operate under supervision from now on?

Excellent point! Taxpayer will pay for their incompetence 🙁
Fancy offices and overpaid staff.

Yes, as with the whole glorious incompetence SA project..

I believe that this scenario was inevitable. The FSCA has been eager in their pursuit of “offenders”, which included insurers and banks. It is almost like they trying to impose their authority by scaring people into compliance. For example, an insurer was fined for existing clients with existing policies that predated the legislation change, immediately after the change to legislation with no warning. That seems unreasonable.

It means that all the staff there can now get a job at Liberty.

comment not fit for sheep readers?

The serious question becomes then, does operators like JP Markets use their software to “accelerate of facilitate” their clients demise?

Sorry tough one to prove but these shops are populated with a bunch of skelms in my opinion..

“JP Markets was transparent in acknowledging that it was counterparty to clients in most trades, meaning it would win where a client lost a trade, and vice versa. There was no attempt to conceal this information.”

and they know by far the most “clients” will loose against the market.

You obviously lost money trading CFDs. No need to feel bad about it. You are in good company. 95% of traders lose money trading derivatives like options, futures, and CFDs. It cannot be blamed on the broker, because he simply provides a service. Leverage is like a loaded shotgun in the hands of a child. The higher the leverage, the shorter the lifespan of the trader.

Most people cannot handle the absolute freedom and limitless potential that derivatives provide to traders, because they are unwilling to spend the time and effort to build a proven trading system. Most professions require 10 years of study and experience, trading is no different. Surgeons bury their errors, traders bank theirs.

Hahaah Sensei the economist giving crystal ball “research”/advice..

Sounds like the textbook scam artist advert with the gold Lambo flashing his trading wisdom

“Most people cannot handle the absolute freedom and limitless potential that derivatives provide to traders, because they are unwilling to spend the time and effort..”

Are you for real?

Have found many CFD shops without direct market access for the client. This means they butter the spreads and manipulate the implied volatility, to their advantage.

I think you are right with the 95% of traders loosing. More likely going bust.

If you spend 10 years studying and getting that amount of screen time, one of the first things you would have learned is not to EVER place a stop loss where you are “taught” to do so (technically). If you go by the book you will never make 10 years maybe not even 2. The shorter the timeframe you trade the quicker the algorithms will take you out. Like the guy’s writing the algorithms don’t know technical analysis?

A proven trading system is crucial but some commonsense is also required.

…I picked up on this as well “..that it was counterparty to clients in most trades..”

So a good client for JP markets, is a client losing most of his/her money, and a ‘bad’ client is the one who wins most trades.

So it’s clear investors money do not reach the outside open market, but rather a ‘game’ against the ‘trading house’.

So it’s obvious: it explains why the FSCA has no jurisdiction over CASINOS.

Yes Michael,

The type of operation is so old, the “bucket shops” are described by Jesse Livermore from before the crash of 1907. The operators would now and then strategically move the price of some stock just so to clean up a few “clients”.

Today the trading software can be used by unscrupulous “operators” to facilitate “business” and accelerate cleaning out of ” good clients” by slippage, manipulated price or account closures when the operator loose.

End of comments.

LATEST CURRENCIES  

USD / ZAR
GBP / ZAR
EUR / ZAR
BTC / USD

Podcasts

INSIDER SUBSCRIPTION APP VIDEOS RADIO / LISTEN LIVE SHOP OFFERS WEBINARS NEWSLETTERS TRENDING

Follow us:

Search Articles:
Click a Company: