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FINANCIAL ADVISORY AND INTERMEDIARY SERVICES ACT 37 OF 2002
[Updated to 1 April 2023.**]
**Date of last changes incorporated into this Act.
____________________________
English text signed by the President
Assented to 15 November 2002
___________________________
Published: G. 24079
Commencement: 15 November 2002;
except ss 13(1)(a) and 20 to 31; ss 20 to 31: 8 March 2003;
s 13(1)(a): 30 September 2004]
[Proc. R81, G. 24075, Proc. R21, G. 25027, Proc. 35, G. 26496]
Amended
Act 37 of 2002 (G. 24079),
Act 22 of 2008 (G. 31471, with effect from 1 November 2008 unless otherwise
indicated [GN 1170, G. 31561]),
Act 19 of 2012 (G. 36121, with effect from 3 June 2013 [Proc. 12, G. 36485]),
Act 45 of 2013 (G. 37237, with effect from 28 February 2014 unless otherwise indicated [GN 120, G. 37351]),
Act 9 of 2017 (G 41060, with effect from 1 April 2018 [GN 169, G. 41549], 28 September 2018 [GN 1019, G. 41947]), 1 April 2023 [GN 3187, G. 48291]),
Act 12 of 2022 (G. 47696, with effect from 1 April 2023 [GN 3188, G. 48291]).
ACT
To regulate the rendering of certain financial advisory and intermediary services to clients; to repeal or amend certain laws; and to provide for matters incidental thereto.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—
ARRANGEMENT OF SECTIONS
[Arrangement of sections amended by s 207 of Act 45 of 2013.]
INTRODUCTORY PROVISIONS
1. Definitions and application
1A. Relationship between Act and Financial Sector Regulation Act
1B. Regulatory instruments
CHAPTER I
ADMINISTRATION OF ACT
2. …
3. General provisions concerning registrar
4. Special provisions concerning powers of registrar
5. ...
6. Delegations
6A. Fit and proper requirements
CHAPTER II
AUTHORISATION OF FINANCIAL SERVICES PROVIDERS
7. Authorisation of financial services providers
8. Application for authorisation
8A. Compliance with fit and proper requirements after authorisation
9. Suspension and withdrawal of authorisation
10. ...
11. Lapsing of licence
12. Exemptions in respect of product suppliers
CHAPTER III
REPRESENTATIVES OF AUTHORISED FINANCIAL SERVICES PROVIDERS
13. Qualifications of representatives and duties of authorised financial services providers
14. Debarment of representatives
14A. …
CHAPTER IV
CODES OF CONDUCT
15. Publication of codes of conduct
16. Principles of codes of conduct
CHAPTER V
DUTIES OF AUTHORISED FINANCIAL SERVICES PROVIDERS
17. Compliance officers and compliance arrangements
18. Maintenance of records
19. Accounting and audit requirements
CHAPTER VI
ENFORCEMENT
PART I
Ombud for financial services providers
20. Office of Ombud for Financial Services Providers
20A. Ombud scheme
21. Appointment of Ombud and deputy ombuds
22. Funding of Office
23. Accountability
24. General administrative powers of Ombud
25. Disestablishment and liquidation of Office
26. Powers of Board
27. Receipt of complaints, prescription, jurisdiction and investigation
28. Determinations by Ombud
29. Record-keeping
30. Report of Ombud
31. Penalties
32. …
PART II
Other enforcement measures
33. ...
34. Undesirable practices
35. Regulations
36. Offences and penalties
37. …
38. Voluntary sequestration, winding-up and closure
38A. Business rescue
38B. Application by registrar for sequestration or liquidation
38C. Directives
39. Right to reconsideration of decision
CHAPTER VII
MISCELLANEOUS
40. Saving of rights
41. Fees and penalties
42. ...
43. ...
44. Exemptions by registrar and Minister
45. Exemptions, and amendment or repeal of laws
46. Commencement and short title
Schedule: Laws amended or repealed
INTRODUCTORY PROVISIONS
1. Definitions and application
(1) In this Act, unless the context indicates otherwise—
“advice” means, subject to subsection (3)(a), any recommendation, guidance or proposal of a financial nature furnished, by any means or medium, to any client or group of clients—
(a) in respect of the purchase of any financial product; or
(b) in respect of the investment in any financial product: or
(c) on the conclusion of any other transaction, including a loan or cession, aimed at the incurring of any liability or the acquisition of any right or benefit in respect of any financial product; or
(d) on the variation of any term or condition applying to a financial product, on the replacement of any such product, or on the termination of any purchase of or investment in any such product,
and irrespective of whether or not such advice—
(i) is furnished in the course of or incidental to financial planning in connection with the affairs of the client; or
(ii) results in any such purchase, investment, transaction, variation, replacement or termination, as the case may be, being effected;
“Advisory Committee” ...
[“Advisory Committee” repealed by s 175(a) of Act 45 of 2013.]
“application”, in relation to the performance of any act by the registrar, means, except where in a specific case other specific provision is made, an application referred to in section 3(2);
“auditor” means an auditor registered in terms of the Auditing Profession Act, 2005 (Act 26 of 2005);
[“auditor” substituted by s 45(a) of Act 22 of 2008.]
“authorised financial services provider” or “provider” means a person who has been granted an authorisation as a financial services provider by the issue to that person of a licence under section 8;
“Authority” means the Financial Sector Conduct Authority established in terms of section 56 of the Financial Sector Regulation Act;
[“Authority” inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“Board” …
[“Board” repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“board of appeal” …
[“board of appeal” repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“client” means a specific person or group of persons, excluding the general public, who is or may become the subject to whom a financial service is rendered intentionally, or is the successor in title of such person or the beneficiary of such service;
“code of conduct” means any published code of conduct contemplated in section 15;
“collective investment scheme” means a collective investment scheme as defined in the Collective Investment Schemes Control Act, 2002;
“Companies Act” means the Companies Act, 2008 (Act 71 of 2008);
[“Companies Act” inserted by s 175(b) of Act 45 of 2013.]
“complainant” means, subject to section 26(1)(a)(ii), a specific client who submits a complaint to the Ombud;
“complaint” means, subject to section 26(1)(a)(iii), a specific complaint relating to a financial service rendered by a financial services provider or representative to the complainant on or after the date of commencement of this Act, and in which complaint it is alleged that the provider or representative—
(a) has contravened or failed to comply with a provision of this Act and that as a result thereof the complainant has suffered or is likely to suffer financial prejudice or damage;
(b) has wilfully or negligently rendered a financial service to the complainant which has caused prejudice or damage to the complainant or which is likely to result in such prejudice or damage; or
(c) has treated the complainant unfairly;
“compliance officer” means a compliance officer for an authorised financial services provider referred to in section 17;
“conduct standard” has the same meaning ascribed to it in terms of section 1 (1) of the Financial Sector Regulation Act, 2017;
[“conduct standard” inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“continuous professional development” means a process of learning and development with the aim of enabling a financial services provider, key individual, representative or compliance officer to maintain the competency to comply with this Act;
[“continuous professional development” inserted by s 175(c) of Act 45 of 2013.]
“Court” means any court having jurisdiction;
“document” includes a document created, recorded, transmitted or stored in digital or other intangible but readable form by way of electronic, magnetic, optical or any similar means;
[“document” inserted by s 45(b) of Act 22 of 2008.]
“exempt” means to exempt, on application by a person or on the registrar’s own initiative, on any of the grounds mentioned in section 44(1)(a), (b) or (c) and (4)(a);
“financial product” means, subject to subsection (2)—
(a) securities and instruments, including –
(i) shares in a company other than a “share block company” as defined in the Share Blocks Control Act, 1980 (Act 59 of 1980);
(ii) debentures and securitised debt;
(iii) any money-market instrument;
(iv) any warrant, certificate, and other instrument acknowledging, conferring or creating rights to subscribe to, acquire, dispose of, or convert securities and instruments referred to in subparagraphs (i), (ii) and (iii);
(v) any “securities” as defined in section 1 of the Financial Markets Act, 2012 (Act 19 of 2012);
[“financial product” para (a)(v) substituted by s 175(d) of Act 45 of 2013.]
(b) a participatory interest in one or more collective investment schemes;
(c) a long-term or a short-term insurance contract or policy, referred to in the Long-term Insurance Act, 1998 (Act 52 of 1998), and the Short-term Insurance Act, 1998 (Act 53 of 1998), respectively;
(d) a benefit provided by—
(i) a pension fund organisation as defined in section 1(1) of the Pension Funds Act, 1956 (Act 24 of 1956), to the members of the organisation by virtue of membership; or
(ii) a friendly society referred to in the Friendly Societies Act, 1956 (Act 25 of 1956), to the members of the society by virtue of membership;
(e) a foreign currency denominated investment instrument, including a foreign currency deposit;
(f) a deposit as defined in section 1(1) of the Banks Act, 1990 (Act 94 of 1990);
(g) a health service benefit provided by a medical scheme as defined in section 1(1) of the Medical Schemes Act, 1998 (Act 131 of 1998);
(h) any other product similar in nature to any financial product referred to in paragraphs (a) to (g), inclusive, declared by the registrar by notice in the Gazette to be a financial product for the purposes of this Act;
[“financial product” para (h) substituted by s 175(e) of Act 45 of 2013.]
(i) any combined product containing one or more of the financial products referred to in paragraphs (a) to (h), inclusive;
(j) any financial product issued by any foreign product supplier and which in nature and character is essentially similar or corresponding to a financial product referred to in paragraph (a) to (i), inclusive;
[“financial product” para (j) substituted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“Financial Sector Regulation Act” means the Financial Sector Regulation Act, 2017;
[“Financial Sector Regulation Act” inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“financial service” means any service contemplated in paragraph (a), (b) or (c) of the definition of “financial services provider”, including any category of such services;
“Financial Services Board Act” …
[“Financial Services Board Act” repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“financial services provider” means any person, other than a representative, who as a regular feature of the business of such person—
(a) furnishes advice; or
(b) furnishes advice and renders any intermediary service; or
(c) renders an intermediary service;
“fit and proper requirements” means the requirements referred to in section 6A;
[“fit and proper requirements” inserted by s 175(f) of Act 45 of 2013, substituted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“intermediary service” means, subject to subsection (3)(6), any act other than the furnishing of advice, performed by a person for or on behalf of a client or product supplier—
(a) the result of which is that a client may enter into, offers to enter into or enters into any transaction in respect of a financial product with a product supplier; or
(b) with a view to—
(i) buying, selling or otherwise dealing in (whether on a discretionary or non-discretionary basis), managing, administering, keeping in safe custody, maintaining or servicing a financial product purchased by a client from a product supplier or in which the client has invested;
(ii) collecting or accounting for premiums or other moneys payable by the client to a product supplier in respect of a financial product; or
(iii) receiving, submitting or processing the claims of a client against a product supplier;
“joint standard” has the same meaning ascribed to it in terms of section 1 (1) of the Financial Sector Regulation Act;
[“joint standard” inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“key individual”, in relation to an authorised financial services provider, or a representative, carrying on business as—
(a) a corporate or unincorporated body, a trust or a partnership, means any natural person responsible for managing or overseeing, either alone or together with other so responsible persons, the activities of the body, trust or partnership relating to the rendering of any financial service; or
(b) a corporate body or trust consisting of only one natural person as member, director, shareholder or trustee, means any such natural person;
“licence” means a licence contemplated in section 7(1);
“licensee” means a financial services provider to whom a licence has been issued under section 8;
“Minister” means the Minister of Finance;
“Office” means the Office of the Ombud established by section 20(1);
“official web site” …
[“official web site” inserted by s 175(g) of Act 45 of 2013, repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“Ombud” means—
(a) the Ombud for Financial Services Providers appointed in terms of section 21(1); and
(b) for the purposes of sections 27, 28, 31 and 39, includes a deputy ombud;
“person” means any natural person, partnership or trust, and includes—
(a) any organ of state as defined in section 239 of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996);
(b) any company incorporated or registered as such under any law;
(c) any body of persons corporate or unincorporate;
“prescribe” means prescribe by regulation;
“product supplier” means any person who issues a financial product;
[“product supplier” substituted by s 175(h) of Act 45 of 2013.]
“prudential standard” has the same meaning ascribed to it in terms of section 1 (1) of the Financial Sector Regulation Act;
[“prudential standard” inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“publish” means any direct or indirect communication transmitted by any medium, or any representation or reference written, inscribed, recorded, encoded upon or embedded within any medium, by means of which a person, other than the registrar, seeks to bring any information to the attention of any other person, or all or part of the public;
[“publish” inserted by s 175(i) of Act 45 of 2013.]
“Register” means the Financial Sector Information Register referred to in section 256 of the Financial Sector Regulation Act;
[“Register” inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“registrar” …
[“registrar” substituted by s 175(j) of Act 45 of 2013, repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
“regulation” means a regulation made under section 35;
“regulatory authority” means an entity established in terms of national legislation responsible for regulating activities of an industry, or sector of an industry;
[“regulatory authority” inserted by s 45(c) of Act 22 of 2008.]
“representative” means any person, including a person employed or mandated by such first-mentioned person, who renders a financial service to a client for or on behalf of a financial services provider, in terms of conditions of employment or any other mandate, but excludes a person rendering clerical, technical, administrative, legal, accounting or other service in a subsidiary or subordinate capacity, which service—
(a) does not require judgment on the part of the latter person; or
(b) does not lead a client to any specific transaction in respect of a financial product in response to general enquiries;
[“representative” substituted by s 45(d) of Act 22 of 2008.]
“rule” means a rule made by the Board under section 26;
“this Act” includes any regulation, rule or code of conduct, and any notice given, approval or exemption granted, determination made, requirement or condition determined or imposed, or any other decision referred to in section 3(1).
“Tribunal” means the Financial Services Tribunal established in terms of section 219 of the Financial Sector Regulation Act;
[“Tribunal” inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(2) For the purposes of this Act a financial product does not include any financial product exempted from the provisions of this Act by the registrar by notice in the Gazette, taking into consideration the extent to which the rendering of financial services in respect of the product is regulated by any other law.
[S 1(2) substituted by s 175(k) of Act 45 of 2013.]
(3) For the purposes of this Act—
(a) advice does not include—
(i) factual advice given merely—
(aa) on the procedure for entering into a transaction in respect of any financial product;
(bb) in relation to the description of a financial product;
(cc) in answer to routine administrative queries;
(dd) in the form of objective information about a particular financial product; or
(ee) by the display or distribution of promotional material;
(ii) an analysis or report on a financial product without any express or implied recommendation, guidance or proposal that any particular transaction in respect of the product is appropriate to the particular investment objectives, financial situation or particular needs of a client;
(iii) advice given by—
(aa) the board of management, or any board member, of any pension fund organisation or friendly society referred to in paragraph (d) of the definition of “financial product” in subsection (1) to the members of the organisation or society on benefits enjoyed or to be enjoyed by such members; or
(bb) the board of trustees of any medical scheme referred to in paragraph (g) of the said definition of “financial product”, or any board member, to the members of the medical scheme, on health care benefits enjoyed or to be enjoyed by such members; or
(iv) any other advisory activity exempted from the provisions of this Act by the registrar by notice in the Gazette;
[S 1(3)(a)(iv) substituted by s 175(l) of Act 45 of 2013.]
(b) intermediary service does not include—
(i) the rendering by a bank, mutual bank or co-operative bank of a service contemplated in paragraph (b)(ii) of the definition of ‘‘intermediary service” where the bank, mutual bank or co-operative bank acts merely as a conduit between a client and another product supplier;
[S 1(3)(b)(i) substituted by s 45(e) of Act 22 of 2008.]
(ii) an intermediary service rendered by a product supplier—
(aa) who is authorised under a particular law to conduct business as a financial institution; and
(bb) where the rendering of such service is regulated by or under such law;
(iii) any other service exempted from the provisions of this Act by the registrar by notice in the Gazette.
[S 1(3)(b)(iii) substituted by s 175(m) of Act 45 of 2013.]
(4) The rendering of a financial service in respect of a deposit referred to in paragraph (f) of the definition of “financial product” in subsection (1) with a term not exceeding 12 months by a provider which is a bank as defined in the Banks Act, 1990 (Act 94 of 1990), or a mutual bank as defined in the Mutual Banks Act, 1993 (Act 124 of 1993), or a co-operative bank as defined in the Co-operative Banks Act, 2007 (Act 40 of 2007), is regulated by this Act in the code of conduct contemplated in section 15(2)(b).
[S 1(4) substituted by s 45(f) of Act 22 of 2008, s 175(n) of Act 45 of 2013.]
(5) Provisions of this Act relating to financial services providers, representatives and product suppliers apply to any natural person or group of natural persons acting within the scope of their official duties in the employ of the State, or any organisational unit of the State, or any public entity, unless the Minister by notice in the Gazette determines otherwise in respect of any such person, group, unit or entity.
(6) This Act must be construed as being in addition to any other law not inconsistent with its provisions and not as replacing any such law.
(7) Unless the context otherwise indicates, words and expressions not defined in subsection (1) have the same meaning ascribed to them in terms of the Financial Sector Regulation Act.
[S 1(7) inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
1A. Relationship between Act and Financial Sector Regulation Act
(1) A reference in this Act to the Board or the registrar must be read as a reference to the Authority.
(2) Except as otherwise provided by this Act or the Financial Sector Regulation Act, the powers and duties of the Authority in terms of this Act are in addition to the powers and duties that it has in terms of the Financial Sector Regulation Act.
(3) A reference in this Act to the Authority determining or publishing a matter by notice in the Gazette must be read as including a reference to the Authority determining or publishing the matter by notice published in the Register.
(4) Unless expressly provided otherwise in this Act, or this Act requires a matter to be prescribed, a reference in this Act to a matter being—
(a) prescribed must be read as a reference to the matter being prescribed in a prudential standard, a conduct standard or a joint standard; or
(b) determined must be read as a reference to the Authority determining the matter in writing and registering the determination in the Register.
[Commencement of S 1A(4): to be determined.]
(5) A reference in this Act to an onsite visit in terms of a provision of this Act must be read as a reference to a supervisory on-site inspection in terms of the Financial Sector Regulation Act.
(6) A reference in this Act to an inspection in terms of a provision of this Act must be read as a reference to an investigation in terms of the Financial Sector Regulation Act.
(7)
(a) A reference in this Act to the Authority announcing or publishing information or a document on a web site must be read as a reference to the Authority publishing the information or document in the Register.
(b) The Authority may also publish the information or document on its web site.
(8) A reference in this Act to a determined or prescribed fee must be read as a reference to the relevant fee determined in terms of section 237 and Chapter 16 of the Financial Sector Regulation Act.
[Commencement of S 1A(8): 1 April 2023.]
(9) A reference in this Act to an appeal of a decision of the Authority must be read as a reference to a reconsideration of the decision by the Tribunal in terms of the Financial Sector Regulation Act.
[S 1A inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018; s 1A(8) with effect from 1 April 2023.]
1B. Regulatory instruments
For the purposes of the definition of 'regulatory instrument' in section 1 of the Financial Sector Regulation Act, fit and proper requirements determined in terms of section 6A, codes of conduct drafted under section 15 and criteria and guidelines for the approval of compliance officers determined under section 17 (2) are regulatory instruments.
[S 1B inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
CHAPTER I
ADMINISTRATION OF ACT
2. …
[S 2 substituted by s 176 of Act 45 of 2013, repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
3. General provisions concerning registrar
(1) Subject to the provisions of this Act, any notice given, approval or exemption granted, determination made, requirement or condition determined or imposed, or any other decision taken by the registrar under an enabling provision of this Act is valid only if it is reduced to a durable written or printed form or, where communicated electronically, has been correctly transmitted in a legible form.
(2) Whenever the performance of any act contemplated in subsection (1) is sought by a person under this Act or any other law, application therefor must, subject to any other specific provision of this Act, be made in writing to the registrar and the application must—
(a) be made in the form and manner determined by or in terms of this Act, or any other law, or as otherwise required by the registrar;
(b) be accompanied by—
(i) the fee payable; and
[S 3(2)(b)(i) substituted by s 290 of Act 9 of 2017 with effect from 1 April 2023.]
(ii) the information or documents required by the registrar.
(3) The registrar must in connection with the application of any provision of this Act to or in respect of any financial product or financial service, consult with any regulatory or supervisory authority in the Republic, including the Registrar of Medical Schemes, referred to in section 42, who is by law empowered to perform a regulatory or supervisory function in respect of such product or service.
4. Special provisions concerning powers of registrar
(1) …
[S 4(1) repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(2) The registrar may by notice direct an authorised financial services provider, representative or compliance officer to furnish the registrar, within a specified period, with specified information or documents required by the registrar for the purposes of this Act.
[S 4(2) substituted by s 177(a) of Act 45 of 2013.]
(3)
(a) If any advertisement, brochure or similar document relating to the rendering of a financial service by an authorised financial services provider or a representative is being, or is to be, published by any person, and any such document is misleading, or confusing, or contains any incorrect statement of fact, the registrar may by notice direct that person not to publish it, to cease publishing it or to effect changes thereto.
(b) A notice contemplated in paragraph (a) takes effect on a date specified in such notice after the registrar has—
(i) provided the person concerned with the reasons for the notice; and
(ii) afforded the person concerned a reasonable opportunity to be heard.
(4) If there is reason to believe that a person is contravening or failing to comply with, or has contravened or failed to comply with, a provision of this Act, the registrar may—
(a) by notice direct that person—
(i) to furnish the registrar within a specified period with any specified information or documents in the possession or under the control of that person and which relate to the subject-matter of such contravention or failure;
(ii) to appear before the registrar at a specified time and place for the purpose of discussing such matter with the registrar; or
(iii) to make arrangements for the discharge of all or any part of that person’s obligations in terms of this Act;
(b) if satisfied that in the case concerned significant prejudice or damage to clients has occurred or may occur, apply to a Court for an order restraining such person from continuing business or dealing with the funds or other property held by such person on behalf of clients or other persons, pending the institution by the registrar of an application or action contemplated in section 33(1) and (2), or the exercising by the registrar of such other legal remedy as may be available to the registrar;
(c) if prejudice or damage may have occurred to a client, refer the matter, together with any information or documentation in the registrar’s possession, to the Office to be dealt with as a complaint by the client concerned.
(5) …
[S 4(5) inserted by s 46 of Act 22 of 2008, amended by s 177 (b) and (c) of Act 45 of 2013, repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(6) …
[S 4(5) inserted by s 46 of Act 22 of 2008, amended by s 177 (d) of Act 45 of 2013, repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(7) ...
[S 4(7) inserted by s 46 of Act 22 of 2008; repealed by s 177(e) of Act 45 of 2013.]
5. ...
[S 5 repealed by s 178 of Act 45 of 2013.]
6. Delegations
(1) The Authority may, in writing, delegate to any person a power or duty conferred upon the Authority under this Act in respect of any matter relating to a conduct standard referred to in section 6A (2) (a), (b) and (e).
(2) The Authority must, where the delegation is to a person other than a staff member of the Authority, be satisfied that the person has sufficient financial, management, human resources and experience necessary for performing the delegated power or duty.
(3) A delegation is subject to the limitations and conditions specified in the delegation.
(4) A delegation does not divest the Authority of responsibility in respect of the delegated power or duty and anything done by a delegate in accordance with a delegation is deemed to be done by the Authority.
(5) A delegation made under this section may be amended or revoked in writing at any time, but an amendment or revocation does not affect any rights or liabilities accrued because of the acts of the delegate.
[S 6 amended by s 179 (a) and (b) of Act 45 of 2013, substituted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
6A. Fit and proper requirements
(1) The registrar, for purposes of this Act, by notice in the Gazette—
(a) must—
(i) classify financial services providers into different categories;
(ii) determine fit and proper requirements for each category of providers; and
(iii) in each category of providers determine fit and proper requirements for—
(aa) key individuals of providers;
(bb) representatives of providers;
(cc) key individuals of representatives of providers; and
(dd) compliance officers; and
(aA) may classify representatives into different categories; and
[S 6A(1)aA) inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(b) may determine fit and proper requirements for providers, key individuals, representatives, key individuals of representatives and compliance officers in general.
(2) Fit and proper requirements may include, but are not limited to, appropriate standards relating to—
(a) personal character qualities of honesty and integrity;
(b) competence, including—
(i) experience;
(ii) qualifications; and
(iii) knowledge tested through examinations determined by the registrar;
(c) operational ability;
(d) financial soundness; and
(e) continuous professional development.
(3) Different fit and proper requirements may be determined for providers, representatives and compliance officers that are natural persons and for those that are partnerships, trusts or corporate or unincorporated bodies.
(4) The registrar may, by notice in the Gazette, amend the fit and proper requirements from time to time, and a provider, key individual, representative, key individual of a representative and compliance officer must comply therewith within such period as determined by the registrar.
[S 6A inserted by s 180 of Act 45 of 2013.]
CHAPTER II
AUTHORISATION OF FINANCIAL SERVICES PROVIDERS
7. Authorisation of financial services providers
(1) With effect from a date determined by the Minister by notice in the Gazette, a person may not act or offer to act as a—
(a) financial services provider, unless such person has been issued with a licence under section 8; or
(b) a representative, unless such person has been appointed as a representative of an authorised financial services provider under section 13.
[S 7(1) substituted by s 181 of Act 45 of 2013.]
(2) Subject to section 40, a transaction concluded on or after the date contemplated in subsection (1) between a product supplier and any client by virtue of any financial service rendered to the client by a person not authorised as a financial services provider, or by any other person acting on behalf of such unauthorized person, is not unenforceable between the product supplier and the client merely by reason of such lack of authorisation.
(3) An authorised financial services provider or representative may only conduct financial services related business with a person rendering financial services if that person has, where lawfully required, been issued with a licence for the rendering of such financial services and the conditions and restrictions of that licence authorises the rendering of those financial services, or is a representative as contemplated in this Act.
[S 7(3) inserted by s 47 of Act 22 of 2008 with effect from 1 May 2009.]
8. Application for authorisation
(1) An application for an authorisation referred to in section 7 (1), including an application by an applicant not domiciled in the Republic, must be submitted to the Authority in the form and manner determined by the Authority by notice on the Authority's web site, and be accompanied by information to satisfy the Authority that the applicant complies with the fit and proper requirements.
[S 8(1) substituted by s 182(a) of Act 45 of 2013, s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(1A) If the applicant is a partnership, trust or corporate or unincorporated body, the application must be accompanied by additional information to satisfy the Authority that every person who acts as a key individual of the applicant complies with the fit and proper requirements for key individuals in the category of financial services providers applied for, to the extent required in order for such key individual to fulfil the responsibilities imposed by this Act.
[S 8(1A) inserted by s 182(b) of Act 45 of 2013, s 290 of Act 9 of 2017 with effect from 1 April 2018.] .]
(2) The registrar may—
(a) require an applicant to furnish such additional information, or require such information to be verified, as the registrar may deem necessary; and
(b) take into consideration any other information regarding the applicant or proposed key individual of the applicant, derived from whatever source, including the Ombud and any other regulatory or supervisory authority, if such information is disclosed to the applicant and the latter is given a reasonable opportunity to respond thereto.
[S 8(2)(b) inserted by s 182(c) of Act 45 of 2013.]
(3) The registrar must after consideration of an application—
(a) grant the application if the registrar—
(i) is satisfied that the applicant and its key individual or key individuals comply with the requirements of this Act; and
(ii) approves the key individual or key individuals of the applicant, in the case of a partnership, trust or corporate or unincorporated body; or
[S 8(3)(a) substituted by s 182(d) of Act 45 of 2013.]
(b) refuse the application if the registrar—
(i) is not satisfied that the applicant and its key individual or key individuals comply with the requirements of this Act; or
(ii) does not approve the key individual or key individuals of the applicant in the case of a partnership, trust or corporate or unincorporated body.
[S 8(3)(b) substituted by s 182(d) of Act 45 of 2013.]
(4)
(a) Where an application is granted, the registrar may impose such conditions and restrictions on the exercise of the authority granted by the licence, and to be included in the licence, as are necessary, having regard to—
(i) all facts and information available to the registrar pertaining to the applicant and any key individual of the applicant;
(ii) the category of financial services which the applicant could appropriately render or wishes to render;
(iii) the category of financial services providers in which the applicant is classified for the purposes of this Act; and
[S 8(4)(a)(iii) substituted by s 182(e) of Act 45 of 2013.]
(iv) the category or subcategory of financial products in respect of which the applicant could appropriately render or wishes to render financial services.
[S 8(4)(a)(iv) substituted by s 182(e) of Act 45 of 2013.]
(b) Conditions and restrictions contemplated in paragraph (a), may include a condition that where after the date of granting of the licence—
(i) any key individual in respect of the licensee’s business is replaced by a new key individual; or
(ii) any new key individual is appointed or assumes office; or
(iii) any change occurs in the personal circumstances of a key individual which renders or may render such person to be no longer compliant with the fit and proper requirements for key individuals,
[S 8(4)(b)(iii) substituted by s 182(f) of Act 45 of 2013.]
no such person may be permitted to take part in the conduct, management or oversight of the licensee’s business in relation to the rendering of financial services, unless such person has on application been approved by the registrar as compliant with the fit and proper requirements for key individuals, in the manner and in accordance with a procedure determined by the registrar by notice on the official web site.
[Words following s 8(4)(b)(iii) substituted by s 182(g) of Act 45 of 2013.]
(5)
(a) Where an application for authorisation is granted, the registrar must issue to the applicant—
[Words preceding s 8(5)(a)(i) substituted by s 182(h) of Act 45 of 2013.]
(i) a licence authorising the applicant to act as a financial services provider, in the form determined by the registrar by notice in the Gazette; and
(ii) such number of certified copies of the licence as may be requested by the applicant.
(b) The registrar may at any time after the issue of a licence—
(i) on application by the licensee or on own initiative withdraw or amend any condition or restriction in respect of the licence, after having given the licensee a reasonable opportunity to make submissions on the proposed withdrawal or amendment and having considered those submissions, if the registrar is satisfied that any such withdrawal or amendment is justified and will not prejudice the interests of clients of the licensee; or
(ii) pursuant to an evaluation of a new key individual, or a change in the personal circumstances of a key individual, referred to in subsection (4)(b), impose new conditions on the licensee after having given the licensee a reasonable opportunity to be heard and having furnished the licensee with reasons,
[S 8(5)(b)(ii) substituted by s 182(i) of Act 45 of 2013.]
and must in every such case issue an appropriately amended licence to the licensee, and such number of certified copies of the amended licence as may be requested by the licensee.
(6) Where an application referred to in subsection (1) is refused, the registrar must—
(a) notify the applicant thereof; and
(b) furnish reasons for the refusal.
(7)
(a) Despite any other provision of this section, a person granted accreditation under section 65(3) of the Medical Schemes Act, 1998 (Act 131 of 1998), must, subject to this subsection, be granted authority to render as a financial services provider the specific financial service for which the person was accredited, and must be issued with a licence in terms of subsection (5).
[S 8(7)(a) substituted by s 182(j) of Act 45 of 2013.]
(b) The registrar must be satisfied that a person to be granted authority under paragraph (a), and any key individual of such person, comply with the fit and proper requirements.
[S 8(7)(b) substituted by s 182(j) of Act 45 of 2013.]
(c) A person granted authority and licensed as contemplated in paragraph (a), together with any key individual, are thereafter subject to the provisions of this Act.
(d) If a licence—
(i) is refused in terms of this section;
(ii) is suspended in terms of section 9;
(iii) is withdrawn in terms of section 10; or
(iv) lapses in terms of section 11,
the accreditation referred to in paragraph (a) is deemed to have lapsed in terms of the Medical Schemes Act, 1998, or to have been suspended or withdrawn, as the case may be.
(e) If an accreditation referred to in paragraph (a) is suspended or withdrawn or lapses in terms of the Medical Schemes Act, 1998, the licence issued in terms of that paragraph is deemed to have been suspended or withdrawn or to have lapsed in terms of sections 9, 10 and 11, respectively, of this Act.
(8) A licensee must—
(a) display a certified copy of the licence in a prominent and durable manner within every business premises of the licensee;
(b) ensure that a reference to the fact that such a licence is held is contained in all business documentation, advertisements and other promotional material; and
[S 8(8)(b) amended by s 182(k) of Act 45 of 2013.]
(c) ensure that the licence is at all times immediately or within a reasonable time available for production to any person requesting proof of licensed status under authority of a law or for the purpose of entering into a business relationship with the licensee.
(9) No person may—
(a) in any manner make use of any licence or copy thereof for business purposes where the licence has lapsed, has been withdrawn or provisionally withdrawn or during any time when the licensee is under provisional or final suspension;
(b) perform any act which indicates that the person renders or is authorised to render financial services or is appointed as a representative to render financial services, unless the person is so authorised or appointed; and
(c) perform any act, make or publish any statement, advertisement, brochure or similar communication which—
(i) relates to the rendering of a financial service, the business of a provider or a financial product; and
(ii) the person knows, or ought reasonably to know, is misleading, false, deceptive, contrary to the public interest or contains an incorrect statement of fact.
[S 8(9) substituted by s 182(l) of Act 45 of 2013.]
(10)
(a) Where a provider is a corporate or unincorporated body, a trust or a partnership, the provider must—
(i) at all times be satisfied that every director, member, trustee or partner of the provider, who is not a key individual in the provider’s business, complies with the requirements in respect of personal character qualities of honesty and integrity as contemplated in paragraph (a) of subsection (1A); and
[S 8(10)(a)(i) substituted by s 182(m) of Act 45 of 2013.]
(ii) within 15 days of the appointment of a new director, member, trustee or partner, inform the registrar of the appointment and furnish the registrar with such information on the matter as the registrar may reasonably require.
(b) If the registrar is satisfied that a director, member, trustee or partner does not comply with the requirements as contemplated in paragraph (a) of subsection (1A), the registrar may suspend or withdraw the licence of the provider as contemplated in section 9.
[S 8(10) inserted by s 48 of Act 22 of 2008; s 8(10)(b) substituted by s 182(n) of Act 45 of 2013.]
8A. Compliance with fit and proper requirements after authorisation
An authorised financial services provider, key individual, representative of the provider and key individual of the representative must—
(a) continue to comply with the fit and proper requirements; and
(b) comply with the fit and proper requirements relating to continuous professional development.
[S 8A inserted by s 183 of Act 45 of 2013.]
9. Suspension and withdrawal of authorisation
(1) The registrar may, subject to subsection (2) and irrespective of whether the registrar has taken or followed, or is taking or following, any step or procedure referred to in section 4, at any time suspend or withdraw any licence (including the licence of a licensee under provisional or final suspension) if satisfied, on the basis of available facts and information, that the licensee—
(a) does not meet or no longer meets the fit and proper requirements applicable to the licensee, or if the licensee is a partnership, trust or corporate or unincorporated body, that the licensee or any key individual of the licensee does not meet or no longer meets the fit and proper requirements applicable to the licensee or the key individual;
[S 9(1)(a) substituted by s 184(a) of Act 45 of 2013.]
(b) did not, when applying for the licence, make a full disclosure of all relevant information to the registrar, or furnished false or misleading information;
(c) has failed to comply with any other provision of this Act or any requirement under the Financial Sector Regulation Act, including a conduct standard, a prudential standard or a joint standard; [S 9(1)(c) substituted by s 184(b) of Act 45 of 2013, s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(d) has failed to pay a levy, an administrative penalty, or any interest in respect thereof;
[S 9(1)(d) substituted by s 184(b) of Act 45 of 2013, s 290 of Act 9 of 2017 with effect from 28 September 2018.]
(e) does not have an approved key individual;
[S 9(1)(e) inserted by s 184(c) of Act 45 of 2013.]
(f) has failed to comply with a regulator's directive; or
[S 9(1)(f) inserted by s 184(c) of Act 45 of 2013, s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(g) has failed to comply with any condition or restriction imposed under this Act.
[S 9(1)(g) inserted by s 184(c) of Act 45 of 2013.]
(2)
(a) Before suspending or withdrawing any licence, the registrar—
(i) may consult any regulatory authority; and
(ii) must inform the licensee of the intention to suspend or withdraw and the grounds therefor and must give the licensee a reasonable opportunity to make a submission in response thereto.
(b) Where the registrar contemplates the suspension or withdrawal of any licence, the registrar must also inform the licensee of—
[Words preceding s 9(2)(b)(i) substituted by s 184(d) of Act 45 of 2013.]
(i) the intended period of the suspension; and
(ii) any terms to be attached to the suspension or withdrawal, including—
(aa) a prohibition on concluding any new business by the licensee as from the effective date of the suspension or withdrawal and, in relation to unconcluded business, such measures as the registrar may determine for the protection of the interests of clients of the licensee; and
(bb) terms designed to facilitate the lifting of the suspension.
[S 9(2)(b)(ii) substituted by s 184(e) of Act 45 of 2013.]
(c) The registrar must consider any response received, and may thereafter decide to suspend or withdraw, or not to suspend or withdraw, the licence, and must notify the licensee of the decision.
(d) Where the licence is suspended or withdrawn, the registrar must make known the reasons for the suspension or withdrawal and any terms attached thereto by notice on the official web site and may make known such information by means of any other appropriate public media.
[S 9(2)(d) substituted by s 184(f) of Act 45 of 2013.]
(3) Notwithstanding the provisions of subsection (2), the registrar may under urgent circumstances, where the registrar is satisfied on reasonable grounds that substantial prejudice to clients or the general public may occur—
(a) provisionally suspend or withdraw a licence, and inform the licensee of the—
(i) grounds therefor; and
(ii) period and terms of suspension as referred to in subsection (2)(b),
and give the licensee a reasonable opportunity to respond thereto and to provide reasons why the provisional suspension or withdrawal should be lifted or why the period and terms should be changed; and
(b) make known such provisional suspension or withdrawal by notice on the official web site and, if necessary, by means of any other appropriate public media.
[S 9(3)(b) substituted by s 184(g) of Act 45 of 2013.]
(4)
(a) The registrar must, within a reasonable time after receipt of any response contemplated in subsection (3)(a) consider the response, and may thereafter decide to—
(i) lift the provisional suspension or withdrawal; or
(ii) render the provisional suspension or withdrawal final,
[S 9(4)(a)(ii) substituted by s 184(h) of Act 45 of 2013.]
and must inform the licensee accordingly.
(b) The registrar must make known the terms of and reasons for such final suspension or withdrawal, or the lifting thereof, by notice on the official web site and, if necessary, in any other appropriate public media.
[S 9(4)(b) substituted by s 184(i) of Act 45 of 2013.]
(5) During any period of suspension, whether provisional or final, the licensee concerned is for the purposes of this Act regarded as a person who is not authorised to act as a financial services provider.
(6)
(a) A person whose licence has been withdrawn under this section is debarred for a period specified by the registrar from applying for a new licence.
(b) The registrar may, on good cause shown, vary any such period.
[S 9 substituted by s 49 of Act 22 of 2008.]
10. ...
[S 10 repealed by s 50 of Act 22 of 2008.]
11. Lapsing of licence
(1) A licence lapses—
(a) where the licensee, being a natural person—
(i) becomes permanently incapable of carrying on any business due to physical or mental disease or serious injury;
(ii) is finally sequestrated; or
(iii) dies;
(b) where the licensee, being any other person, is finally liquidated or dissolved;
(c) where the business of the licensee has become dormant; and
(d) in any other case, where the licensee voluntarily and finally surrenders the licence to the registrar.
(2) The registrar must be advised in writing by the licensee, any key individual of the licensee, or another person in control of the affairs of the licensee, as the case may be, of the lapsing of a licence and the reasons therefor and the registrar may make known any such lapsing of a licence by notice on the official web site and, if necessary by means of any other appropriate public media announcement.
[S 11(2) substituted by s 51 of Act 22 of 2008, s 185 of Act 45 of 2013.]
12. Exemptions in respect of product suppliers
(1) The registrar may exempt a product supplier who is authorised or approved under a particular law to conduct business as a financial institution, and who is required to apply for authorisation under section 8, from submitting some or all of the information otherwise required from an applicant: Provided that the product supplier—
(a) applies for exemption when submitting the application; and
(b) complies with the requirements of the registrar with regard to information still required.
(2) Authorisation granted to a product supplier contemplated in subsection (1) is supplementary to, but separate from, the supplier’s authorisation or approval under a particular law as a financial institution.
CHAPTER III
REPRESENTATIVES OF AUTHORISED FINANCIAL SERVICES PROVIDERS
13. Qualifications of representatives and duties of authorised financial services providers
(1) A person may not—
(a) carry on business by rendering financial services to clients for or on behalf of any person who—
(i) is not authorised as a financial services provider; and
(ii) is not exempted from the application of this Act relating to the rendering of a financial service;
[Commencement s 13(1)(a): 30 September 2004; s 13(1)(a) amended by s 186(d) of Act 45 of 2013.]
(b) act as a representative of an authorised financial services provider, unless such person—
(i) prior to rendering a financial service, provides confirmation, certified by the provider, to clients—
[Words preceding s 13(1)(b)(i)(aa) substituted by s 186(a) of Act 45 of 2013.]
(aa) that a service contract or other mandate, to represent the provider, exists; and
[S 13(1)(b)(i)(aa) substituted by s 52(a) of Act 22 of 2008.]
(bb) that the provider accepts responsibility for those activities of the representative performed within the scope of, or in the course of implementing, any such contract or mandate;
[S 13(1)(b)(i)(bb) substituted by s 52(a) of Act 22 of 2008.]
(iA) meets the fit and proper requirements; and
[S 13(1)(b)(iA) inserted by s 186(b) of Act 45 of 2013.]
(ii) if debarred as contemplated in section 14, complies with the requirements determined by the registrar by notice in the Gazette, for the reappointment of a debarred person as a representative; or
[S 13(1)(b) amended by s 186(d) of Act 45 of 2013; s 13(1)(b)(ii) substituted by s 186(c) of Act 45 of 2013.]
(c) render financial services or contract in respect of financial services other than in the name of the financial services provider of which such person is a representative.
[S 13(1)(c) inserted by s 186(d) of Act 45 of 2013 with effect from 30 May 2014.]
(2) An authorised financial services provider must—
(a) at all times be satisfied that the provider’s representatives, and the key individuals of such representatives, are, when rendering a financial service on behalf of the provider, competent to act, and comply with—
(i) the fit and proper requirements; and
(ii) any other requirements contemplated in subsection (1)(b)(ii);
[S 13(2)(a) substituted by s 52(b) of Act 22 of 2008, s 186(e) of Act 45 of 2013.]
(b) take such steps as may be reasonable in the circumstances to ensure that representatives comply with any applicable code of conduct as well as with other applicable laws on conduct of business.
(3) An authorised financial services provider must—
(a) maintain a register of representatives, and key individuals of those representatives, which must be regularly updated and be available to the Authority for reference or inspection purposes; and
(b) within five days after being informed by the Authority of the debarment of a representative or key individual by the Authority, remove the name of that representative or key individual from the register referred to in paragraph (a).
[S 13(3) substituted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(4) Such register must—
(a) contain every representative’s or key individual’s name and business address, and state whether the representative acts for the provider as employee or as mandatory; and
(b) specify the categories in which such representatives are competent to render financial services.
(5) The registrar may require information from the authorised financial services provider, including the information referred to in subsection (4), so as to enable the registrar to maintain and continuously update a central register of all representatives and key individuals, which register must be published in any appropriate media.
[S 13(5) substituted by s 52(c) of Act 22 of 2008.]
(6) A person who on the date contemplated in section 7(1) complies with the requirements of this Act for a representative and on such date acts as employee or mandatory for any person who on or after such date becomes an authorised financial services provider, is for the purposes of this Act but subject to the provisions of this Act relating to representatives, regarded as a representative.
14. Debarment of representatives
(1)
(a) An authorised financial services provider must debar a person from rendering financial services who is or was, as the case may be—
(i) a representative of the financial services provider; or
(ii) a key individual of such representative, if the financial services provider is satisfied on the basis of available facts and information that the person—
(iii) does not meet, or no longer complies with, the requirements referred to in section 13 (2) (a); or
(iv) has contravened or failed to comply with any provision of this Act in a material manner;
(b) The reasons for a debarment in terms of paragraph (a) must have occurred and become known to the financial services provider while the person was a representative of the provider.
(2)
(a) Before effecting a debarment in terms of subsection (1), the provider must ensure that the debarment process is lawful, reasonable and procedurally fair.
(b) If a provider is unable to locate a person in order to deliver a document or information under subsection (3), after taking all reasonable steps to do so, including dissemination through electronic means where possible, delivering the document or information to the person's last known e-mail or physical business or residential address will be sufficient.
(3) A financial services provider must—
(a) before debarring a person—
(i) give adequate notice in writing to the person stating its intention to debar the person, the grounds and reasons for the debarment, and any terms attached to the debarment, including, in relation to unconcluded business, any measures stipulated for the protection of the interests of clients;
(ii) provide the person with a copy of the financial services provider's written policy and procedure governing the debarment process; and
(iii) give the person a reasonable opportunity to make a submission in response;
(b) consider any response provided in terms of paragraph (a) (iii), and then take a decision in terms of subsection (1); and
(c) immediately notify the person in writing of—
(i) the financial services provider's decision;
(ii) the persons' rights in terms of Chapter 15 of the Financial Sector Regulation Act; and
(iii) any formal requirements in respect of proceedings for the reconsideration of the decision by the Tribunal.
(4) Where the debarment has been effected as contemplated in subsection (1), the financial services provider must—
(a) immediately withdraw any authority which may still exist for the person to act on behalf of the financial services provider;
(b) where applicable, remove the name of the debarred person from the register referred to in section 13 (3);
(c) immediately take steps to ensure that the debarment does not prejudice the interest of clients of the debarred person, and that any unconcluded business of the debarred person is properly attended to;
(d) in the form and manner determined by the Authority, notify the Authority within five days of the debarment; and
(e) provide the Authority with the grounds and reasons for the debarment in the format that the Authority may require within 15 days of the debarment.
(5) A debarment in terms of subsection (1) that is undertaken in respect of a person who no longer is a representative of the financial services provider must be commenced not longer than six months from the date that the person ceased to be a representative of the financial services provider.
(6) For the purposes of debarring a person as contemplated in subsection (1), the financial services provider must have regard to information regarding the conduct of the person that is furnished by the Authority, the Ombud or any other interested person.
(7) The Authority may, for the purposes of record keeping, require any information, including the information referred to in subsection (4) (d) and (e), to enable the Authority to maintain and continuously update a central register of all persons debarred in terms of subsection (1), and that register must be published on the web site of the Authority, or by means of any other appropriate public media.
(8) A debarment effected in terms of this section must be dealt with by the Authority as contemplated by this section.
(9) A person debarred in terms of subsection (1) may not render financial services or act as a representative or key individual of a representative of any financial services provider, unless the person has complied with the requirements referred to in section 13 (1) (b) (ii) for the reappointment of a debarred person as a representative or key individual of a representative.
[S 14 amended by s 53 of Act 22 of 2008, s 187 of Act 45 of 2013, substituted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
14A. …
[S 14A inserted by s 54 of Act 22 of 2008; amended by s 188 of Act 45 of 2013, rep s 290 of Act 9 of 2017 with effect from 1 April 2018.]
CHAPTER IV
CODES OF CONDUCT
15. Publication of codes of conduct
(1)
(a) The registrar must, after consultation with representative bodies of the financial services industry and client and customer bodies, draft a code of conduct for authorised financial services providers.
[S 15(1)(a) substituted by s 189 of Act 45 of 2013.]
(b) The code must, after consultation, be published by notice in the Gazette, and, on any such publication, becomes binding on all authorised financial services providers and representatives referred to therein.
(2)
(a) Different codes of conduct may be so drafted in respect of the rendering of a financial service to different categories of clients and of different categories of authorised financial services providers and their operations in different sectors of the financial services industry, and different categories of representatives.
(b) A code of conduct must be drafted for the rendering of a financial service in respect of a deposit referred to in paragraph (f) of the definition of “financial product” in section 1(1) with a term not exceeding 12 months by a provider which is a bank as defined in the Banks Act, 1990 (Act 94 of 1990), a mutual bank as defined in the Mutual Banks Act, 1993 (Act 124 of 1993), or a co-operative bank as defined in the Co-operative Banks Act, 2007 (Act 40 of 2007).
[S 15(2) substituted by s 55 of Act 22 of 2008.]
(3) Such codes of conduct may from time to time be amended or replaced in accordance with the procedure set out in subsection (1).
16. Principles of code of conduct
(1) A code of conduct must be drafted in such a manner as to ensure that the clients being rendered financial services will be able to make informed decisions, that their reasonable financial needs regarding financial products will be appropriately and suitably satisfied and that for those purposes authorised financial services providers, and their representatives, are obliged by the provisions of such code to—
(a) act honestly and fairly, and with due skill, care and diligence, in the interests of clients and the integrity of the financial services industry;
(b) have and employ effectively the resources, procedures and appropriate technological systems for the proper performance of professional activities;
(c) seek from clients appropriate and available information regarding their financial situations, financial product experience and objectives in connection with the financial service required;
(d) act with circumspection and treat clients fairly in a situation of conflicting interests; and
(e) comply with all applicable statutory or common law requirements applicable to the conduct of business.
(2) A code of conduct must in particular contain provisions relating to—
(a) the making of adequate disclosures of relevant material information, including disclosures of actual or potential own interests, in relation to dealings with clients;
(b) adequate and appropriate record-keeping;
(c) avoidance of fraudulent and misleading advertising, canvassing and marketing;
(d) proper safe-keeping, separation and protection of funds and transaction documentation of clients;
(e) where appropriate, suitable guarantees or professional indemnity or fidelity insurance cover, and mechanisms for adjustments of such guarantees or cover by the registrar in any particular case;
[S 16(2)(e) amended by s 56 of Act 22 of 2008.]
(eA) the control or prohibition of incentives given or accepted by a provider; and
[S 16(2)(eA) inserted by s 56 of Act 22 of 2008.]
(f) any other matter which is necessary or expedient to be regulated in such code for the better achievement of the objects of this Act.
CHAPTER V
DUTIES OF AUTHORISED FINANCIAL SERVICES PROVIDERS
17. Compliance officers and compliance arrangements
(1)
(a) Any authorised financial services provider with more than one key individual or one or more representatives must, subject to section 35(1)(c) and subsections (1)(b) and (2)(a)(i), appoint one or more compliance officers to oversee the provider’s compliance function and to monitor compliance with this Act by the provider and such representative or representatives, particularly in accordance with the procedures contemplated in subsection (3), and to take responsibility for liaison with the registrar.
[S 17(1)(a) substituted by s 190(a) of Act 45 of 2013.]
(b) Such person must comply with the fit and proper requirements.
[S 17(1)(b) substituted by s 57(a) of Act 22 of 2008, s 190(a) of Act 45 of 2013.]
(bA) The provisions of section 8A apply with the necessary changes to a compliance officer.
[S 17(1)(bA) inserted by s 190(b) of Act 45 of 2013.]
(c) The provisions of section 19(4), (5) and (6), relating to an auditor of an authorized financial services provider, apply with the necessary changes to a compliance officer.
[S 17(1)(c) substituted by s 57(a) of Act 22 of 2008.]
(2)
(a)
(i) A compliance officer must be approved by the registrar in accordance with the criteria and guidelines determined by the registrar.
(ii) The registrar may amend such criteria and guidelines, and an approved compliance officer must comply with the amended criteria and guidelines within such period as may be determined by the registrar.
(b) The registrar may at any time withdraw the approval if satisfied on the basis of available facts and information that the compliance officer—
(i) has contravened or failed to comply with any provision of this Act;
(ii) does not meet or no longer meets the fit and proper requirements; or
(iii) does not comply or no longer complies with the criteria and guidelines contemplated in paragraph (a).
(c) The provisions of section 9(2) and (6) regarding a decision to withdraw an authorisation (excluding such provisions relating to periods and terms) apply with the necessary changes to a withdrawal of an approval contemplated in paragraph (b).
(d) The registrar may make known any withdrawal of approval under this subsection and the reasons therefor by notice on the official web site or by means of any other appropriate public media.
[S 17(2) substituted by s 57(b) of Act 22 of 2008, s 190(c) of Act 45 of 2013.]
(3) An authorised financial services provider must establish and maintain procedures to be followed by the provider and any representative concerned, in order to ensure compliance with this Act.
(4)
(a) A compliance officer or, in the absence of such officer, the authorised financial services provider concerned, must submit reports to the registrar in the manner and regarding the matters, as from time to time determined by the registrar by notice on the official web site for different categories of compliance officers.
(b) An authorised financial services provider must ensure that the reports referred to in paragraph (a) are submitted in accordance with the provisions of that paragraph.
[S 17(4) substituted by s 190(d) of Act 45 of 2013.]
(5) The provisions of subsections (3) and (4) apply with the necessary changes to any authorised financial services provider who carries on a business with only one key individual or without any representative.
18. Maintenance of records
An authorised financial services provider must, except to the extent exempted by the registrar, maintain records for a minimum period of five years regarding—
(a) known premature cancellations of transactions or financial products by clients of the provider;
(b) complaints received together with an indication whether or not any such complaint has been resolved;
(c) the continued compliance with the requirements referred to in section 8;
(d) cases of non-compliance with this Act, and the reasons for such non-compliance; and
(e) the continued compliance by representatives with the requirements referred to in section 13(1) and (2).
19. Accounting and audit requirements
(1) Except to the extent exempted by the registrar, an authorised financial services provider must, in respect of the business carried on by the provider as authorised under the provider’s licence—
(a) maintain full and proper accounting records on a continual basis, brought up to date monthly; and
(b) annually prepare, in respect of the relevant financial year of the provider, financial statements reflecting—
(i) the financial position of the entity at its financial year end;
(ii) the results of operations, the receipt and payment of cash and cash equivalent balances:
(iii) all changes in equity for the period then ended, and any additional components required in terms of South African Generally Accepted Accounting Practices issued by the Accounting Practices Board or International Financial Reporting Standards issued by the International Accounting Standards Board or a successor body; and
(iv) a summary of significant accounting policies and explanatory notes on the matters referred to in paragraphs (i) to (iii);
[S 19(1)(b) substituted by s 58(a) of Act 22 of 2008.]
(2)
(a) An authorised financial services provider must cause the statements referred to in subsection (1)(b) to be audited and reported on in accordance with auditing pronouncements as defined in section 1 of the Auditing Professions Act, 2005 (Act 26 of 2005) by an external auditor approved by the registrar.
(b) The financial statements must—
(i) fairly represent the state of affairs of the provider’s business;
(ii) refer to any material matter which has affected or is likely to affect the financial affairs of the provider; and
(iii) be submitted by the authorised financial services provider to the registrar not later than four months after the end of the provider’s financial year or such longer period as may be allowed by the registrar.
[S 19(2) substituted by s 58(b) of Act 22 of 2008 with effect from 1 May 2009.]
(3) The authorised financial services provider must maintain records in accordance with subsection (1)(a) in respect of money and assets held on behalf of clients, and must, in addition to and simultaneously with the financial statements referred to in subsection (2), submit to the registrar a report, by the auditor who performed the audit, which confirms, in the form and manner determined by the registrar by notice on the official web site for different categories of financial services providers—
[Words preceding s 19(3)(a) substituted by s 191(a) of Act 45 of 2013.]
(a) the amount of money and financial products at year end held by the provider on behalf of clients;
(b) that such money and financial products were throughout the financial year kept separate from those of the business of the authorised financial services provider and, report any instance of non-compliance identified in the course of the audit and the extent thereof; and
(c) any other information required by the registrar.
[S 19(3) substituted by s 58(c) of Act 22 of 2008.]
(4) Despite anything to the contrary contained in any law, the auditor of an authorised financial services provider must report to and inform the registrar in writing of any irregularity or suspected irregularity in the conduct or the affairs of the authorised financial services provider concerned of which the auditor became aware in performing functions as auditor and which, in the opinion of the auditor, is material.
(5) If the appointment of an auditor of an authorised financial services provider is terminated—
(a) the auditor must submit to the registrar a statement of what the auditor believes to be the reasons for that termination; and
(b) if the auditor would, but for that termination, have had reason to submit to the registrar a report contemplated in subsection (4), the auditor must submit such a report to the registrar.
(6)
(a) The registrar may by notice require an authorised financial services provider to terminate the appointment of an auditor of that provider, if the auditor concerned no longer complies with the requirements considered when the auditor was approved by the registrar in terms of subsection (2)(a) or otherwise fails to comply with any provision of this section in a material manner.
(b) A notice contemplated in paragraph (a) takes effect on a date specified in such notice and may only be sent out after the registrar—
(i) has given the authorised financial services provider and the auditor concerned the reasons why the notice is to be issued; and
(ii) has given the authorised financial services provider and the auditor concerned a reasonable opportunity to be heard; and
(iii) has considered any submissions made by or on behalf of the authorized financial services provider or the auditor concerned.
(7)
(a) A financial services provider may not change a financial year end without the approval of the registrar.
(b) Despite paragraph (a), the approval of the registrar is not necessary where a change of a financial year end has been approved by another regulatory authority, other than the Companies and Intellectual Property Commission, regulating the financial soundness of the provider.
[S 19(7)(b) substituted by s 191(b) of Act 45 of 2013.]
(c) Where a change of a financial year end was approved by another regulatory authority as is contemplated in paragraph (b), the provider must inform the registrar of that approval within 14 days of the approval being granted.
[S 19(7) inserted by s 58(e) of Act 22 of 2008.]
CHAPTER VI
ENFORCEMENT
PART I
Ombud for financial services providers
20. Office of Ombud for Financial Services Providers
(1) There is an office to be known as the Office of the Ombud for Financial Services Providers.
(2) The functions of the Office are performed by the Ombud for Financial Services Providers.
(3) The objective of the Ombud is to consider and dispose of complaints in a procedurally fair, informal, economical and expeditious manner and by reference to what is equitable in all the circumstances, with due regard to—
(a) the contractual arrangement or other legal relationship between the complainant and any other party to the complaint; and
(b) the provisions of this Act.
(4) When dealing with complaints in terms of sections 27 and 28 the Ombud is independent and must be impartial.
[Commencement s 20: 8 March 2003.]
20A. Ombud scheme
The scheme in relation to complaints implemented by this Part is declared to be a statutory ombud scheme for the purposes of the Financial Sector Regulation Act.
[S 20A inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
21. Appointment of Ombud and deputy ombuds
(1) The Minister—
(a) must appoint as Ombud a person qualified in law and who possesses adequate knowledge of the rendering of financial services;
(b) may appoint one or more persons qualified in law and who possess adequate knowledge of the rendering of financial services, as deputy ombud.
[S 21(1) amended by s 192(a) of Act 45 of 2013, s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(2) The remuneration and other terms of appointment of the Ombud and a deputy ombud must be determined by the Minister.
[S 21(2) amended by s 290 of Act 9 of 2017 with effect from 1 April 2023.]
(3) The Ombud or deputy ombud may at any time resign by submitting a written resignation to the Minister at least three calendar months prior to the intended date of vacation of office, unless the Minister allows a shorter period.
[S 21(3) amended by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(4) The Minister may on good cause shown remove the Ombud or deputy ombud from office on the ground of misbehaviour, incapacity or incompetence, after affording the person concerned a reasonable opportunity to be heard.
[S 21(4) substituted by s 192(b) of Act 45 of 2013, am s 290 of Act 9 of 2017 with effect from 1 April 2018.]
[Commencement s 21: 8 March 2003.]
22. Funding of Office
(1) The funds of the Office consist of the funds contemplated in section 247(1) of the Financial Sector Regulation Act, and such funds may only be applied in terms of section 247(2) of that Act.
[S 22(1) substituted by s 290 of Act 9 of 2017 with effect from 1 April 2023, and by s 4 of Act 12 of 2022 with effect from 1 April 2023.]
(2) The Ombud must deposit all funds in an account opened with a bank registered under the Banks Act, 1990 (Act 94 of 1990).
(3) The Ombud must utilise such funds for the defrayal of expenses incurred in the performance of functions under this Act, and may invest funds which are not required for immediate use.
(4) The financial year of the Ombud ends on 31 March in every year.
(5) Funds standing to the credit of the Ombud in the account mentioned in subsection (2) at the end of the financial year, as well as funds invested under subsection (3), must be carried forward to the next financial year.
[Commencement s 22: 8 March 2003.]
23. Accountability
(1) The Ombud is the accounting authority of the Office.
[S 23(1) substituted by s 193 of Act 45 of 2013, substituted by s 290 of Act 9 of 2017 with effect from 1 April 2023.]
(2) The accounting authority must comply with the Public Finance Management Act.
[S 23(2) substituted by s 193 of Act 45 of 2013.]
(3) The records and financial statements mentioned in subsection (2) must be audited by the Auditor‑General.
[Commencement s 23: 8 March 2003.]
24. General administrative powers of Ombud
The Ombud may for the performance of functions in the Office and as a charge against or for the benefit of the funds of the Office, as the case may be—
(a) hire, purchase or otherwise acquire property, and let, sell or otherwise dispose of property so purchased or acquired;
(b) enter into an agreement with any person for the performance of any specific act or function or the rendering of specific services;
(c) insure the Office against any loss, damage, risk or liability;
(d) employ persons to assist the Ombud, determine their terms of appointment and, subject to such conditions as may be determined by the Ombud, delegate or assign to any such employee, including a deputy ombud, any administrative function vesting in the Ombud in terms of this Part;
(e) obtain such professional advice as may reasonably be required; and
(f) in general, do anything which is necessary or expedient for the achievement of the objective of the Ombud.
[Commencement s 24: 8 March 2003.]
25. Disestablishment and liquidation of Office
(1) The Office may not be disestablished or liquidated except by an Act of Parliament.
(2) In the event of any such disestablishment or liquidation, the surplus assets of the Office (if any) accrue to the Board.
[Commencement s 25: 8 March 2003.]
26. Powers of Board
(1) The Board may make rules, including different rules in respect of different categories of complaints or investigations by the Ombud, regarding—
[Words preceding s 26(1)(a) substituted by s 194 of Act 45 of 2013.]
(a)
(i) any matter which is required or permitted under this Act to be regulated by rule;
(ii) the category of persons qualifying as complainants;
(ii) the type of complaint justiciable by the Ombud, including a complaint relating to a financial service rendered by a person not authorised as a financial services provider or a person acting on behalf of such first-mentioned person;
(iv) the rights of complainants in connection with complaints, including the manner of submitting a complaint to the authorised financial services provider or representative concerned;
(v) the rights and duties of any such provider or representative on receipt of any complaint, particularly in connection with the furnishing of replies to the complainant;
(vi) the rights of a complainant to submit a complaint to the Ombud where the complainant is not satisfied with any reply received from the provider or representative concerned;
(vii) the circumstances under which a complaint may be dismissed without consideration of its merits;
(viii) the power of the Ombud to fix a time limit for any aspect of the proceedings before the Ombud and to extend a time limit;
(b) the payment to the Office by the authorised financial services provider or representative involved in any complaint submitted to the Ombud, of case fees in respect of the consideration of the complaint by the Ombud;
(c) liaison between the Ombud and the registrar, and administrative duties of those functionaries regarding mutual administrative support, exchange of information and reports, other regular consultations and avoidance of overlapping of their respective functions; and
(d) any other administrative or procedural matter necessary or expedient for the better achievement of the objects of this Part, but which is not inconsistent with a provision of this Act.
(2) The Board must—
(a) ensure that no rule made under subsection (1) detracts from or affects the independence of the Ombud in any material way;
(b) publish rules made under subsection (1) in the Gazette.
[Commencement s 26: 8 March 2003.]
27. Receipt of complaints, prescription, jurisdiction and investigation
(1) On submission of a complaint to the Office, the Ombud must—
(a) determine whether the requirements of the rules contemplated in section 26(1)(a)(iv) have been complied with;
(b) in the case of any non-compliance, act in accordance with the rules made under that section; and
(c) otherwise officially receive the complaint if it qualifies as a complaint.
(2) Official receipt of a complaint by the Ombud suspends the running of prescription in terms of the Prescription Act, 1969 (Act 68 of 1969), for the period after such receipt of the complaint until the complaint has either been withdrawn, or determined by the Ombud or the board of appeal, as the case may be.
(3) The following jurisdictional provisions apply to the Ombud in respect of the investigation of complaints:
(a)
(i) The Ombud must decline to investigate any complaint which relates to an act or omission which occurred on or after the date of commencement of this Act but on a date more than three years before the date of receipt of such complaint by the Office.
(ii) Where the complainant was unaware of the occurrence of the act or omission contemplated in subparagraph (i), the period of three years commences on the date on which the complainant became aware or ought reasonably to have become aware of such occurrence, whichever occurs first.
(b)
(i) The Ombud must decline to investigate any complaint if, before the date of official receipt of the complaint, proceedings have been instituted by the complainant in any Court in respect of a matter which would constitute the subject of the investigation.
(ii) Where any proceedings contemplated in subparagraph (i) are instituted during any investigation by the Ombud, such investigation must not be proceeded with.
(c) The Ombud may on reasonable grounds determine that it is more appropriate that the complaint be dealt with by a Court or through any other available dispute resolution process, and decline to entertain the complaint.
(4) The Ombud must not proceed to investigate a complaint officially received, unless the Ombud—
(a) has in writing informed every other interested party to the complaint of the receipt thereof;
(b) is satisfied that all interested parties have been provided with such particulars as will enable the parties to respond thereto; and
(c) has provided all interested parties the opportunity to submit a response to the complaint.
(5) The Ombud—
(a) may, in investigating or determining an officially received complaint, follow and implement any procedure (including mediation) which the Ombud deems appropriate, and may allow any party the right of legal representation;
(b) must, in the first instance, explore any reasonable prospect of resolving a complaint by a conciliated settlement acceptable to all parties;
(c) may, in order to resolve a complaint speedily by conciliation, make a recommendation to the parties, requiring them to confirm whether or not they accept the recommendation and, where the recommendation is not accepted by a party, requiring that party to give reasons for not accepting it: Provided that where the parties accept the recommendation, such recommendation has the effect of a final determination by the Ombud, contemplated in section 28(1);
(d) may, in a manner that the Ombud deems appropriate, delineate the functions of investigation and determination between various functionaries of the Office;
(e) may, on terms specified by the Ombud, mandate any person or tribunal to perform any of the functions referred to in paragraph (d).
(6) For the purposes of any investigation or determination by the Ombud, the provisions of the Commissions Act, 1947 (Act 8 of 1947), regarding the summoning and examination of persons and the administering of oaths or affirmations to them, the calling for the production of books, documents and objects, and offences by witnesses, apply with the necessary changes.
[Commencement s 27: 8 March 2003.]
28. Determinations by Ombud
(1) The Ombud must in any case where a matter has not been settled or a recommendation referred to in section 27(5)(c) has not been accepted by all parties concerned, make a final determination, which may include—
(a) the dismissal of the complaint; or
(b) the upholding of the complaint, wholly or partially, in which case—
(i) the complainant may be awarded an amount as fair compensation for any financial prejudice or damage suffered;
(ii) a direction may be issued that the authorised financial services provider, representative or other party concerned take such steps in relation to the complaint as the Ombud deems appropriate and just;
(iii) the Ombud may make any other order which a Court may make.
(2)
(a) A monetary award may provide for the amount payable to bear interest at a rate and as from a date determined by the Ombud.
(b) The Board may by rule determine—
(i) the maximum monetary award for a particular kind of financial prejudice or damage;
(ii) different maximum monetary awards for different categories of complaints;
(iii) the granting of costs, including costs against a complainant in favour of the Office or the respondent if in the opinion of the Ombud—
(aa) the conduct of the complainant was improper or unreasonable; or
(bb) the complainant was responsible for an unreasonable delay in the finalisation of the relevant investigation:
Provided that an amount payable under a cost award bears interest at a rate and as from a date determined by the Ombud.
(3) Any award of interest by the Ombud in terms of subsection (2) may not exceed the rate which a Court would have been entitled to award, had the matter been heard by a Court.
(4)
(a) The Ombud must reduce a determination to writing, including all the reasons therefor, sign the determination, and send copies thereof to the registrar and all parties concerned with the complaint and, if no notice of appeal to the board of appeal has been lodged within the period required therefor, to the clerk or registrar of court which would have had jurisdiction in the matter had it been heard by a Court.
(b) Where a notice of appeal has been lodged, the Ombud must send a copy of the final decision of the board of appeal to any such clerk or registrar.
(5) A determination—
(a) or a final decision of the board of appeal, as the case may be, is regarded as a civil judgment of a Court, had the matter in question been heard by a Court, and must be so noted by the clerk or registrar, as the case may be, of that Court;
(b) is only appealable to the board of appeal—
(i) with the leave of the Ombud after taking into consideration—
(aa) the complexity of the matter; or
(bb) the reasonable likelihood that the board of appeal may reach a different conclusion; or
(ii) if the Ombud refuses leave to appeal, with the permission of the chairperson of the board of appeal.
(6)
(a) A writ of execution may, in the case of a determination or a final decision of the board of appeal amounting to a monetary award, be issued by the clerk or the registrar referred to in subsection (3) and may be executed by the sheriff of such Court after expiration of a period of two weeks after the date of the determination or of the final decision of the board of appeal, as the case may be.
(b) Any other determination must be given effect to in accordance with the applicable procedures of a Court after expiration of a period of two weeks after the date of the determination or of the final decision of the board of appeal.
[Commencement s 28: 8 March 2003.]
29. Record-keeping
(1) The Ombud must keep proper files and records in respect of complaints as well as a record of any determination proceedings conducted in terms of section 28.
(2) The registrar has, for the purposes of the performance of the registrar’s functions, under this or any other law, access to the Ombud’s files and records and may without further proof rely on a copy of any record of proceedings signed by the Ombud.
(3) Any interested person may, subject to the discretion of the Ombud and applicable rules of confidentiality, obtain a copy of any record on payment of a fee determined by the Ombud.
[Commencement s 29: 8 March 2003.]
30. Report of Ombud
(1) The Ombud must during every year, within six months after the end of the financial year of the Ombud, submit a report to the Board on the affairs and functions of the Ombud during the financial year in question, including the annual financial statements referred to in section 23(2)(b).
(2) The Ombud must at the same time submit a copy of the report to the Minister.
[Commencement s 30: 8 March 2003.]
31. Penalties
Any person who—
(a) commits any act in respect of the Ombud or an investigation by the Ombud which, if committed in respect of a court of law, would have constituted contempt of court, is guilty of an offence and liable on conviction to any penalty which may be imposed on a conviction of contempt of court; or
(b)
(i) anticipates a determination of the Ombud in any manner calculated to influence the determination; or
(ii) wilfully interrupts any proceedings conducted by the Ombud.
is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
[Commencement of s 31: 8 March 2003.]
32. …
[S 32 repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
PART II
Other enforcement measures
33. ...
[S 33 amended by s 59 of Act 22 of 2008; repealed by s 195 of Act 45 of 2013.]
34. Undesirable practices
(1) Subject to subsections (2) and (3), the registrar may by notice in the Gazette declare a particular business practice to be undesirable for all or a category of authorised services providers, or any such provider.
[S 34(1) substituted by s 196(a) of Act 45 of 2013.]
(2) The following principles must guide the registrar in considering whether or not a declaration contemplated in subsection (1) should be made:
(a) That the practice concerned, directly or indirectly, has or is likely to have the effect of—
(i) harming the relations between authorised financial services providers or any category of such providers, or any such provider, and clients or the general public;
(ii) unreasonably prejudicing any client;
(iii) deceiving any client; or
(iv) unfairly affecting any client; and
(b) that if the practice is allowed to continue, one or more objects of this Act will or is likely to, be defeated.
(3) The registrar may not make such a declaration unless the registrar has by notice in the Gazette published an intention to make the declaration, giving reasons therefor, and invited interested persons to make written representations thereanent so as to reach the registrar within 21 days after the date of publication of that notice.
(4) An authorised financial services provider or representative may not, on or after the date of the publication of a notice referred to in subsection (1), carry on the business practice concerned.
[S 34(4) substituted by s 196(b) of Act 45 of 2013.]
(5) The registrar may direct an authorised financial services provider who, on or after the date of the publication of a notice referred to in subsection (1), carries on the business practice concerned in contravention of that notice, to rectify to the satisfaction of the registrar anything which was caused by or arose out of the carrying on of the business practice concerned: Provided that the registrar may not make an order contemplated in section 6D(2)(b) of the Financial Institutions (Protection of Funds) Act, 2001 (Act 28 of 2001).
[S 34(5) substituted by s 60(a) of Act 22 of 2008.]
(6) An authorised financial services provider concerned who is under subsection (5) directed to rectify anything, must do so within 60 days after such direction is issued.
[S 34(6) substituted by s 60(b) of Act 22 of 2008.]
35. Regulations
(1) The Minister may by notice in the Gazette, after consultation with the registrar, make regulations relating to—
[Words preceding s 35(1)(a) substituted by s 197 of Act 45 of 2013.]
(a) any matter which is required or permitted to be prescribed under this Act;
(b) a prohibition on—
(i) canvassing for, or marketing or advertising (whether within or outside the Republic) of any business relating to the rendering of financial services by any person who is not an authorised financial services provider or a representative of such a provider;
(ii) the publication by any person, who is not an authorised financial services provider or a representative of such a provider, of any advertisement, communication or announcement directed to clients and which indicates that such person is an authorised financial services provider or a representative of such a provider; and
(iii) the use by any person who is not an authorised financial provider or a representative of any such provider, of any name, title or designation indicating that the person is an authorised financial services provider or a representative of such a provider;
(c) compliance arrangements, compliance monitoring systems and keeping of records;
(d) …
[S 35(1)(d) repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(e) generally, any matter which it is expedient or necessary to prescribe for the better achievement of the objects of this Act, the generality of this provision not being restricted by the provisions of any foregoing paragraph.
(2) The regulations may provide for offences in cases of contravention or non-compliance with the provisions thereof, and for penalties not exceeding a fine of R500 000 or imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
(3) Different regulations may be made in respect of different matters or categories of persons.
36. Offences and penalties
Any person who—
(a) contravenes or fails to comply with a provision of section 7(1) or (3), 8(8), 8(10)(a), 13(1) or (2), 14(1), 17(4), 18, 19(2), 19(4) or 34(4) or (6);
[S 36(a) substituted by s 61(a) of Act 22 of 2008.]
(b) in any application in terms of this Act, deliberately makes a misleading, false or deceptive statement, or conceals any material fact;
(c) in the execution of duties imposed by this Act gives an appointed auditor or compliance officer information which is false, misleading or conceals any material fact; or
[S 36(c) inserted by s 61(b) of Act 22 of 2008.]
(d) is not a representative appointed or mandated by an authorised financial services provider in accordance with the provisions of this Act, and who in any way declares, pretends, gives out, maintains or professes to be a person who is authorised to render financial services to clients on the basis that the person is appointed or mandated as a representative by another representative,
[S 36(d) inserted by s 61(b) of Act 22 of 2008; substituted by s 198(a) of Act 45 of 2013.]
is guilty of an offence and is on conviction liable to a fine not exceeding R10 million or imprisonment for a period not exceeding 10 years, or both such fine and such imprisonment.
[Words following s 36(d) substituted by s 198(b) of Act 45 of 2013.]
37. ...
[S 37 repealed by s 199 of Act 45 of 2013.]
38. Voluntary sequestration, winding-up and closure
No—
(a) application for the acceptance of the voluntary surrender of the estate, in terms of section 3 of the Insolvency Act, 1936 (Act 24 of 1936), of;
(b) special resolution relating to the winding-up in terms of the Companies Act, and registered in terms of that Act, of;
[S 38(b) substituted by s 200 of Act 45 of 2013.]
(c) written resolution relating to the winding-up, as contemplated in section 67 of the Close Corporations Act, 1984 (Act 69 of 1984), and registered in terms of that section, of; and
(d) voluntary closure of business by,
any authorised financial services provider, or representative of such provider, and no special resolution in terms of the constitution of such a provider or representative which is not a company, to close its business, have legal force—
(i) unless a copy or notice thereof has been lodged with the registrar and the registrar has, by notice to the provider or representative concerned, as the case may be, declared that arrangements satisfactory to the registrar have been made to meet all liabilities under transactions entered into with clients prior to sequestration, winding-up or closure, as the case may be; or
(ii) if the registrar, by notice to the provider or representative concerned, as the case may be, declares that the application, resolution or closure, as the case may be, is contrary to this Act.
38A. Business rescue
(1)
(a) Notwithstanding the provisions of the Companies Act or any other law under which a provider is incorporated, Chapter 6 of the Companies Act shall, subject to this section and with the necessary changes, apply in relation to the business rescue of a provider, whether or not it is a company.
(b) This section does not apply if another registrar is authorised in terms of Financial Services Board legislation as defined in section 1 of the Financial Services Board Act, 1990 (Act 97 of 1990), or in terms of banking legislation, to make an application for the business rescue of a provider.
(2) The registrar may make an application under section 131 of the Companies Act in respect of a provider if the registrar is satisfied that it is in the interests of the clients of the provider or the financial services industry.
(3) The following acts are subject to the approval of the registrar:
(a) The resolution of a provider to begin business rescue proceedings;
(b) the appointment of a business rescue practitioner;
(c) the adoption of a business rescue plan; and
(d) the exercise of a power by the business rescue practitioner under the Companies Act.
(4) In the application of Chapter 6 of the Companies Act—
(a) any reference to the Commission shall be construed as a reference also to the registrar;
(b) the reference to creditors shall be construed as a reference also to clients of the provider;
(c) any reference relating to the ability of a provider to pay all debts, shall be construed as relating also to the provider s inability to comply with the financial soundness requirement under section 8(1)(c) of this Act;
(d) there shall be considered, in addition to any question relating to the business of a provider, also the question whether any cause of action is in the interests of the clients.
(5) If an application to a Court for an order relating to the business rescue of a provider is made by an affected person other than the registrar—
(a) the application shall not be heard unless copies of the notice of motion and of all accompanying affidavits and other documents filed in support of the application are lodged with the registrar, before the application is set down for hearing;
(b) the registrar may, if satisfied that the application is not in the interests of the clients of the provider, join the application as a party and file affidavits and other documents in opposition to the application.
(6) As from the date upon which a business rescue practitioner is appointed, the business rescue practitioner of a provider shall not conduct any new business unless the practitioner has been granted permission to do so by a court.
[S 38A inserted by s 201 of Act 45 of 2013.]
38B. Application by registrar for sequestration or liquidation
(1) Subject to subsection (3), if the registrar, after an on-site visit in terms of section 4(5) or an inspection in terms of the Inspection of Financial Institutions Act, 1998 (Act 80 of 1998), considers that the interests of the clients of a financial services provider or of members of the public so require, the registrar may apply to the court for the sequestration or liquidation of that provider, whether or not the provider is solvent, in accordance with—
(a) the Insolvency Act, 1936 (Act 24 of 1936);
(b) the Companies Act;
(c) the Close Corporations Act, 1984 (Act 69 of 1984); or
(d) the law under which that provider is incorporated.
(2) In deciding an application contemplated in subsection (1), the court—
(a) may take into account whether sequestration or liquidation of the financial services provider concerned is reasonably necessary—
(i) in order to protect the interests of the clients of the provider; and
(ii) for the integrity and stability of the financial sector;
(b) may make an order concerning the manner in which claims may be proved by clients of the financial services provider concerned; and
(c) shall appoint as trustee or liquidator a person nominated by the registrar.
(3) This section does not apply if another registrar is authorised in terms of Financial Services Board legislation as defined in section 1 of the Financial Services Board Act, 1990 (Act 97 of 1990), or in terms of banking legislation, to apply to the court for the sequestration or liquidation of that provider.
[S 38B inserted by s 201 of Act 45 of 2013.]
38C. Directives
(1) The registrar may, in order to ensure compliance with or to prevent a contravention of this Act, issue a directive to any person or persons to whom the provisions of this Act apply.
(2) A directive issued in terms of subsection (1) may—
(a) apply generally; or
(b) be limited in its application to a particular person or category of persons.
(3) A directive issued in terms of subsection (1) takes effect on the date determined by the registrar in the directive.
(4) In the event of a departure from section 3(2) or 4(1), (2) or (3) of the Promotion of Administrative Justice Act (Act 3 of 2000), the directive must include a statement to that effect and the reasons for such departure.
(5) The registrar must, where a directive is issued to ensure the protection of the public in general, publish the directive on the official web site and any other media that the registrar deems appropriate, in order to ensure that the public may easily and reliably access the directive.
[S 38C inserted by s 201 of Act 45 of 2013.]
39. Right of appeal
Any person aggrieved by a decision of a financial services provider to debar that person in terms of section 14 may apply for the reconsideration of the decision to the Tribunal.
[S 39 substituted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
CHAPTER VII
MISCELLANEOUS
40. Saving of rights
No provision of this Act, and no act performed under or in terms of any such provision, may be construed as affecting any right of a client, or other affected person, to seek appropriate legal redress in terms of this Act, the common law or any other statutory law, and whether relating to civil or criminal matters, in respect of the rendering of any financial service by an authorised financial services provider, or representative of such provider, or any act of a person who is not an authorised financial services provider or a representative of such a provider.
[S 40 substituted by s 202 of Act 45 of 2013.]
41. Fees and penalties
(1)
(a) …
[S 41(1)(a) repealed by s 290 of Act 9 of 2017 with effect from 1 April 2023.]
(b) The fees are payable in the manner, and are subject to the requirements, determined by the registrar by notice on the official web site.
[S 41(b) substituted by s 203 of Act 45 of 2013.]
(2)
(a) A person who fails to furnish the registrar with a return, information or document, as provided by this Act, within the period specified or any extension thereof, is, irrespective of any criminal proceedings instituted against the person under this Act, but subject to paragraph (b), liable to a penalty not exceeding R1 000 or any greater amount prescribed, for every day during which the failure continues unless the registrar, on good cause shown, waives the penalty or any part thereof.
(b) The penalty may be imposed by the registrar by notice to the person concerned, and such imposition must be preceded by a procedure giving such person a reasonable opportunity to be heard, and takes effect on a date specified in such notice which may be a date prior to the date of the notice.
(3)
(a) A person who is liable to pay the fees or a penalty contemplated in subsection (1)(a) or (2)(a), respectively, and who fails to pay the amount due on the date or within the period specified, must pay interest on the amount outstanding and on unpaid interest at such rate, and calculated in such manner as may be determined by the Minister from time to time in respect of debts due to the state.
(b) The fees and penalties, and interest owed in respect thereof, are regarded as debts due to the Board and may be recovered by the Board in a Court.
42. ...
[S 42 repealed by s 204 of Act 45 of 2013.]
43. ...
[S 43 repealed by s 62 of Act 22 of 2008.]
44. Exemptions by registrar and Minister
(1) The registrar may on or after the commencement of this Act, but prior to the date determined by the Minister in terms of section 7(1), exempt any person or category of persons from the provisions of that section if the registrar is satisfied that—
(a) the rendering of any financial service by the applicant is already partially or wholly regulated by any other law; or
(b) the application of the said section to the applicant will cause the applicant or clients of the applicant financial or other hardship or prejudice; and
(c) the granting of the exemption will not—
(i) conflict with the public interest;
(ii) prejudice the interests of clients; and
(iii) frustrate the achievement of the objects of this Act.
(2) The registrar—
(a) having regard to the factors mentioned in subsection (1), may attach to any exemption so granted reasonable requirements or impose reasonable conditions with which the applicant must comply either before or after the effective date of the exemption in the manner and during the period specified by the registrar; and
(b) must determine the period for which the exemption will be valid.
(3) An exemption in respect of which a person has to comply with requirements or conditions, lapses whenever the person contravenes or fails to comply with any such requirement or condition: Provided that the registrar may on application condone any such contravention or failure and determine reasonable requirements or conditions with which the applicant must comply on or after resumption of the exemption as if such requirements or conditions had been attached or imposed on the first granting of the exemption.
(4)
(a) The registrar may in any case not provided for in this Act, on reasonable grounds, on application or on the registrar’s own initiative by notice on the official web site, exempt any person or category of persons from any provision of this Act.
[S 44(4)(a) substituted by s 205 of Act 45 of 2013.]
(b) The provisions of subsections (1), (2) and (3) apply with the necessary changes in respect of any exemption contemplated in paragraph (a).
(5) The Minister, after consultation with the registrar, may, on such conditions as the Minister may determine, by notice in the Gazette exempt a financial services provider or representative, or category of financial services providers or representatives, from any provision of the Policyholder Protection Rules made under section 62 of the Long-term Insurance Act, 1998 (Act 52 of 1998), and section 55 of the Short-term Insurance Act, 1998 (Act 53 of 1998), respectively.
45. Exemptions, and amendment or repeal of laws
(1) The provisions of this Act do not apply to the rendering of financial services by—
(a)
(i) any “authorised user”, “clearing member”, “licensed clearing house”, “licensed central securities depository” “licensed exchange” or “participant” as defined in section 1 of the Financial Markets Act, 2012 that is authorised by that Act to render those financial services;
[S 45(1)(a)(i) substituted by s 111 of Act 19 of 2012.]
(ii) …
[S 45(1)(a)(ii) repealed by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
(iii) a person performing the functions referred to in section 13B of the Pension Funds Act, 1956 (Act 24 of 1956), if such person complies with the requirements and conditions contemplated in that section; or
(iv) a person carrying on the business referred to in section 58 of the Medical Schemes Act, 1998 (Act 131 of 1998), if such person complies with the requirements contemplated in that section,
to the extent that the rendering of financial services is regulated by or under those Acts, respectively;
(b)
(i) the executor, administrator or trustee of any deceased or insolvent estate, or a person acting on behalf of such executor, administrator or trustee;
(ii) the curator of a person under curatorship, or a person acting on behalf of such curator;
(iii) the liquidator of a company in liquidation, business rescue practitioner of a company subject to business rescue proceedings, or a person acting on behalf of such liquidator or business rescue practitioner;
[S 45(1)(b)(iii) substituted by s 206 of Act 45 of 2013.]
(iv) the trustee of an inter vivos trust as defined in section 1 of the Trust Property Control Act, 1988 (Act 57 of 1988), not being a business trust created for the purpose of profit-making achieved through the combination of capital contributed by the beneficiaries of the trust and through the administration or management of the capital by trustees on behalf of and for the benefit of the beneficiaries, or a person acting on behalf of such first-mentioned trustee;
(v) the parent, tutor or guardian of a minor, or a person acting on behalf of such parent, tutor or guardian,
unless the financial services are rendered as a regular feature of any such person’s business; or
(c) any other trustee or custodian appointed under any law to the extent that the rendering of such services is regulated by or under such law.
(1A) The provisions of this Act do not apply to the—
(a) performing of the activities referred to in paragraph (b) (ii) and (iii) of the definition of “intermediary service” by a product supplier—
(i) who is authorised under a particular law to conduct business as a financial institution; and
(ii) where the rendering of such service is regulated under such law; and
(b) rendering of financial services by a manager as defined in section 1 of the Collective Investment Schemes Control Act, 2002, to the extent that the rendering of financial services is regulated under that Act.
[Commencement of s 45(1A)(b): 1 April 2018.]
[S 45(1A) inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
[Commencement of s 45(1A) excluding s 45(1A)(b): to be determined.]
(1B) The exemption referred to in—
(a) subsection (1A)(a) does not apply to a person to whom the product supplier has delegated or outsourced the activity, or any part of the activity, contemplated in paragraph (a), and where the person is not an employee of the product supplier; and
(b subsection (1A)(b) does not apply to an authorised agent as defined in section 1 of the Collective Investment Schemes Control Act, 2002.
[Commencement of s 45(1B)(b): 1 April 2018.]
[S 45(1B) inserted by s 290 of Act 9 of 2017 with effect from 1 April 2018.]
[Commencement of s 45(1B) excluding s 45(1B)(b): to be determined.]
(2)
(a) The law referred to in item I of the Schedule is hereby amended to the extent indicated in the fourth column of the Schedule.
(b) The laws referred to in item II of the Schedule are hereby, with effect from the date determined in terms of section 7(1), amended or repealed to the extent indicated in the fourth column of the Schedule: Provided that any unconcluded business of any financial services provider in terms of such law on that date may be concluded within the prescribed period as if any such amendment or repeal has not taken effect.
(3) Until such time as the Collective Investment Schemes Control Act, 2002, referred to in sections 1(1) and 45(1)(a)(ii) of this Act comes into operation, any reference in this Act to—
(a) a collective investment scheme and manager must be construed as references to a unit trust scheme and management company, and scheme and manager, referred to in the Unit Trusts Control Act, 1981 (Act 54 of 1981), and the Participation Bonds Act, 1981 (Act 55 of 1981), respectively; and
(b) any word or expression defined in the Unit Trusts Control Act, 1981, and the Participation Bonds Act, 1981, unless clearly inappropriate or inconsistent with this Act, has the meaning so defined.
(4) Until such time as the Securities Services Act, 2002, referred to in sections 1(1) and 45(1)(a)(i) of this Act comes into operation, any reference in this Act to—
(a) an authorised user, exchange, a clearing house, central securities depository and participant, must be construed as references to a member, stock exchange, clearing house, financial exchange, recognised clearing house, central securities depository and depositary institution referred to in the Stock Exchanges Control Act, 1985 (Act 1 of 1985), Financial Markets Control Act, 1989 (Act 55 of 1989), and Custody and Administration of Securities Act, 1992 (Act 85 of 1992), respectively; and
(b) any word or expression defined in the Stock Exchanges Control Act, 1985, Financial Markets Control Act, 1989, and Custody and Administration of Securities Act, 1992, unless clearly inappropriate or inconsistent with this Act, has the meaning so defined.
46. Commencement and short title
This Act is called the Financial Advisory and Intermediary Services Act, 2002, and comes into operation on a date fixed by the President by proclamation in the Gazette.
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
________ Words underlined with a solid line indicate insertions in existing enactments.
SCHEDULE
LAWS AMENDED OR REPEALED
(Section 45)
|
ITEM |
NUMBER AND YEAR OF LAW
|
SHORT TITLE |
EXTENT OF AMENDMENT OR REPEAL
|
|
I |
Act 97 of 1990
|
Financial Services Board Act, 1990
|
The amendment of section 1 by the addition of the following subparagraph to paragraph (a) of the definition of “financial institution”:
“(xii) any ‘authorised financial services provider’ or ‘representative’ as defined in section 1 (1) of the Financial Advisory and intermediary Services Act, 2001;”.
|
|
II (a) |
Act 1 of 1985 |
Stock Exchanges Control Act, 1985 |
1. The amendment of section 4 by the—
(a) substitution for subsection (1) of the following subsection:
“(1) No member may, as a regular feature of the business of the member, undertake the management of investments on behalf of another person, and for such management receive any remuneration in whatever form, unless the member is authorised to do so in terms of the rules.”; and
(b) deletion of subsections (1A), (2), (3), (4), (5), (6) and (7)(c).
2. The amendment of section 12 by the substitution for paragraph (d) of subsection (1) of the following paragraph:
“(d) that—
(i) a member carries on a business contemplated in section 4(1) in accordance with the provisions of the rules; and
(ii) a member may not effect a transaction with a person whom the member reasonably believes requires authorisation as a financial services provider or the status of a representative in terms of the Financial Advisory and intermediary Services Act, 2001, without having taken reasonable measures to ascertain that such person has the required authorisation or status.”.
3. The amendment of section 39 by the deletion of subsections (2), (2A) and (2B).
4. The amendment of section 45—
(a) by the deletion of subparagraph (iii) of paragraph (a) of subsection (1);
(b) by the deletion of the word “or” at the end of subparagraph (ii) of paragraph (b) subsection (1), and of subparagraph (iii) of the said paragraph (b);
(c) by the substitution for the words following on subparagraph (iii) of paragraph (b) of subsection (1) of the following words:
“but who is carrying on the business of a stock exchange or of a member, [or of a person requiring approval in terms of section 4] as the case may be; and”.
5. The amendment of section 47 by the deletion of paragraph (b) of subsection (1).
6. The amendment of section 48 by the substitution for paragraph (a) of subsection (1) of the following paragraph:
“(a) contravenes a provision of section 3(1) or (2), 4(1) [or (2)] or 14;”.
7. The substitution of the following heading and subsection for the heading and subsection (1) of section 50:
“Powers of court to declare member, officer or employee of member disqualified
50. (1) If a court—
(a) convicts a member or an officer or employee of a member [or a person approved in terms of section 4] under this Act or of an offence of which any dishonest act or omission is an element; or
(b) finds, in proceedings to which a member or an officer or employee of a member [a person approved in terms of section 4 or such person’s officer or employee] is a party or in which [his] such member’s, officer’s or employee’s conduct is called in question, that [he] such member, officer or employee has been guilty of dishonest conduct,
the court may (in addition, in a case referred to in paragraph (a), to any sentence it may impose) declare that member, officer or employee of a member [person or such person’s officer or employee] to be disqualified, for an indefinite period or for a period specified by the court, from carrying on the business of a member or from being an officer or employee of a member, [or from carrying on the business referred to in section 4] as the case may be.”.
|
|
II (b) |
Act 55 of 1989 |
Financial Markets Control Act, 1989 |
1. The amendment of section 5—
(a) by the substitution for subsection (1) of the following subsection:
“(1) No member may, as a regular feature of the business of the member, undertake the management of investments on behalf of another person, and for such management receive any remuneration in whatever form, unless the member is authorised to do so in terms of the rules.”: and
(b) by the deletion of subsections (1A), (2), (3), (4), (5), (6) and (7)(c).
2. The amendment of section 17—
(a) by the substitution in subsection (1) for paragraph (dC) of the following paragraph:
“(dC) that a member carries on a business contemplated in section 5(1) in accordance with the provision: of the rules;”: and
(b) by the substitution in subsection (1) for paragraph (1B) of the following paragraph:
“ (1B) that no member may effect a transaction with a person who the member reasonably believes requires authorisation as a financial services provider or the status of a representative in terms of the Financial Advisory and Intermediary Services Act, 2001, without having taken reasonable measures to ascertain that such person has the required authorisation or status;”.
3. The amendment of section 21A by the deletion of subsections (2), (2A) and (2B).
4. The amendment of section 26—
(a) by the deletion in subsection (1) of subparagraph (iii) of paragraph (a);
(b) by the deletion of the word “or” at the end of subparagraph (ii) of paragraph (b) of subsection (1), and of subparagraph (iii) of the said paragraph (b): and
(c) by the substitution for the words following on subparagraph (iii) of paragraph (b) of subsection (1) of the following words:
“but who is carrying on the business of a financial exchange or of a member [or of a person requiring approval in terms of section 5]: and”.
5. The amendment of section 28 by the deletion of paragraph (c).
6. The amendment of section 29—
(a) by the substitution for paragraph (b) of subsection (1) of the following paragraph:
“(b) direct a financial exchange or a member thereof or a recognized clearing house [or a person approved in terms of section 5] to take any other steps, or to refrain from performing or continuing any act, in order to terminate or to obviate any undesirable practice or state of affairs brought to light by the inspection.”: and
(b) by the substitution for subsection (2) of the following subsection:
“(2) A financial exchange or a member thereof or a recognized clearing house [or a person approved in terms of section 5] shall upon receipt of a request in writing by the Registrar to that effect immediately discontinue the publication or the issue of any advertisement, brochure, prospectus or similar document relating to financial instruments specified in the request which is not a correct statement of fact or is objectionable, or effect such adjustments thereto as the Registrar deems fit.” .
7. The substitution of the following section for section 30:
“Evidence
30. A record purporting to have been made or kept in the ordinary course of the carrying on of the business of a financial exchange or the business of a member, or of a recognized clearing house [or the business of a person approved in terms of section 5] or a copy of or an extract from such record certified to be correct by the public prosecutor, shall on its mere production by the public prosecutor in any criminal proceedings under this Act, any other law or the common law against the person who carries or carried on the business in question or any other person, be admissible in evidence and be prima facie of the facts contained in such record, copy or extract.”.
8. The substitution of the following heading and subsection for the heading and subsection (1) of section 31:
“Power of court to declare member or officer or employee of member disqualified
31. (1) If a court—
(a) convicts a member or officer or employee of a member [or a person approved in terms of section 5] of an offence under this Act or of an offence of which any dishonest act or omission is an element: or
(b) finds, in proceedings to which a member or officer or employee of a member [or a person approved in terms of section 5 or such person’s officer or employee] is a party or in which such member’s officer’s or employee’s [or person’s] conduct is called in question, that such member, officer or employee [or person] has been guilty of dishonest conduct,
the court may (in addition, in a case referred to in paragraph (a) to any sentence it may impose) declare that member, officer or employee of a member [or person or such person’s officer or employee] to be disqualified, for an indefinite period or for a period specified by the court, from carrying on the business of a member or from being an officer or employee of a member [or from carrying on the business referred to in section 5], as the case may be.”.
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|
II (c) |
Act 140 of 1992 |
Drugs and Drug Trafficking Act, 1992
|
1. The amendment of section 10 by the substitution in subsection (3) for paragraphs (a) and (b) of the following paragraphs:
“(a) any stock-broker as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act 1 of 1985) [or any person contemplated in paragraph (d), (e) or (f) of section 4(1) of that Act]; or
(b) any financial instrument trader as defined in section 1 of the Financial Markets Control Act, 1989 (Act 55 of 1989) [or any person contemplated in paragraph (f), (g), or (h) of section 5(1) of that Act].”.
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