Make The Most Of SA's Law And Initial Coin Offering

Cryptocurrencies offer significant investment opportunity, but remember that when something seems too good to be true, it probably is.

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This article could comfortably take up a single blank page in this glossy magazine and still be accurate — South Africa (and many other countries with it) is rapidly adopting the blockchain and cryptocurrency revolution and it’s all happening in a relative legislative lacuna (my Latin professor would be so proud). 

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At the outset, however, this article relies on at least a working understanding of some of the underlying technology and concepts that make ICOs possible, and I won’t be trying to explain them in any great detail. Far smarter tech-journos have written some illuminating pieces on the topic and a Google search will quickly yield some very insightful guides.

In essence, however, an ICO involves the creation of a unit of value, called a ‘coin’ which, at a basic level functions like most cryptocurrencies (cf Bitcoin). Purchasers of the coin buy the coin at a predetermined listing price, upon consideration of a ‘whitepaper’, published by the coin offeror, which eerily resembles a prospectus for the purchase of shares in a listed company. 

Importantly, however, the purchase of shares (usually) doesn’t entitle the coin holder to exercise any rights in relation to the operation of the business — this is a key differentiating factor from shares.

From a commercial perspective, the coin holder anticipates that the value of the coin purchased will increase over time as demand surges on the back of a (hopefully) successful business concept. This sounds very much like the promised land for start-ups starved of genuine venture capital in South Africa.

More particularly, the 150+ businesses that have raised more than $2,5 billion would argue that it’s a highly effective way of raising capital from an investor group that invests based on very limited knowledge and (potentially) recourse to the issuer.

In fact the South African Reserve Bank (SARB) has stated categorically that, because it does not guarantee the trade or issuance of cryptocurrencies, it offers no recourse or protection to consumers.

 

So where does this leave you, average Joe Seffrican?

Certain key pieces of legislation ought to be examined and applied to your precise scenario — both for would-be issuers and consumers of ICOs and other cryptocurrencies:

The Banks Act will have some bearing where offerors of cryptocurrency coins fall within the definition of deposit-taking institutions and are thus required to adhere to the requirements of the Banks Act and potentially fall within the purview of the SARB.

Collective Investment Schemes Act (CISCA) regulates businesses that seek to ‘collect’ or pool funds and investments and is regulated — and very strictly at that — by the Financial Services Board.

The Financial Intelligence Centre Act, more commonly known as FICA, may have significant scope over certain transactions taking place utilising cryptocurrencies, especially mindful of the by-design anonymity of blockchain technology.

Exchange Control Regulations have strict penalties for transactions that violate the permitted capital outflows of capital from the Republic. Given that the blockchain is designed to facilitate these very outflows, in many instances, this will be an area of concern for businesses and investors alike.

Twin Peaks Financial Sector Regulation Bill, once promulgated would regulate all financial service businesses that provide the financial service and financial intermediary services. This opens a veritable quagmire of potential legislative and regulatory impact on the ICO sector.

Here’s the big one — if it walks, talks and smells like equity, then the Companies Act and our courts in enforcing the Companies Act, are going to treat it like equity, meaning that some coins, which often carry rights and duties similar to conventional equity, may fall within the ambit of the highly regulated arena of public offerings of security. This is particularly the case in the light of our legal system’s view of the ‘substance over form’ doctrine.

There may well be interplay between the Companies Act and the Consumer Protection legislation, which may be triggered in transactions that have no underlying value, operate in a manner consistent with a Ponzi scheme or are not adequately insured against data losses etc.

While it pains me to be the one pointing these risks out, when all and sundry seem to be turning pittances into fortunes, your grandma would be quick to point out that if it sounds too good to be true, it probably is.

At the end of the day, there are profound opportunities for both investors and businesses to be had, but you would be well counselled to carefully consider the full legislative and regulatory consequences of any purchase of offer of any ICO coin. This is unfortunately a classic case of the innovators innovating while the legislators scramble to play catch up in a world that is changing faster than their arcane promulgations can seek to regulate it.

Andrew Taylor

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Andrew Taylor is a managing partner at Henley Estates, part of the Henley & Partners Group, a global leader in citizenship by investment programmess, with offices in South Africa.