A critical analysis of the financial regulation of private equity investments in South Africa
Private equity is a critical vehicle of entrepreneurship development that is essential in reducing unemployment and boosting the economic growth of South Africa. There has, however, been a decline in private equity investment (PEI) activity in South Africa compared to the 2006-2007 peak and seed capital by venture capitalists has been affected the most. This has been attributed to a number of factors mainly related to financial and tax regulation. This study critically reviews the financial regulation of the PEIs in South Africa with a view to elucidating potential pitfalls that may be affecting the competitiveness of the industry. A comparison with the regulation of PEIs in the United Kingdom (which is generally regarded as functioning well) is also made in order to provide a basis for recommendations to improve private equity activity in South Africa. The main legal structures for PEIs in South Africa are the en commandite partnerships and the bewind trusts, of which en commandite partnerships are the most common legal structure. The private equity industry is mainly regulated by common law. However, there are various, separate sections of legislation that regulate private equity transactions as well as public companies. These fragmented pieces of legislation and regulations include the Financial Advisory and Intermediary Services Act, the Broad-based Black Economic Empowerment Act and the Black Economic Empowerment policy framework, the Companies Act, the Pension Funds Act, the Financial Markets Act, the Exchange Control Regulations 1961, the Competition Act, the Johannesburg Stock Exchange Listing Requirements and the King Reports on Corporate Governance. Of these, the most influential is the Financial Advisory and Intermediary Services Act which regulates financial service providers or fund managers. A comparison with the PEIs regulatory framework in the UK showed that the UK, apart from having a consolidated legislation regulating the legal structure of PEIs, generally, has a more comprehensive scope of regulation that includes self-regulation, co-regulation, and regional regulations, in addition to the traditional, conservative common law. This integration of regional requirements through EU’s Directive 2011/61/EU and the Walker Guidelines has probably helped the UK to open up new markets in the region. Although there are some positives in the regulation of PEIs in South Africa, notably the regulation of financial markets to prevent market abuse and insider trading, it appears financial regulation may benefit from drawing lessons from the law and regulatory framework of the UK. It is therefore recommended that the South African private equity industry develops a consolidated and facilitative regulatory framework. This can be based on co-regulation along the lines of the Walker Guidelines (which encourages more disclosure and transparency) as well as a consolidated Act to control all PEIs activities.