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REGULATIONS UNDER THE LONG-TERM INSURANCE ACT 52 OF 1998

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Last checked: 9 October 2019

LONG-TERM INSURANCE ACT

Act 52 of 1998.

REGULATIONS UNDER THE LONG-TERM INSURANCE ACT 52 OF 1998
[Updated to 1 March 2015]

GoN R1492, G. 19495 (c.i.o 1 January 1999),
GoN R197, G. 20934 (c.i.o 1 March 2000),
GoN R164, G. 23105 (c.i.o 15 February 2002),
GoN R1208 and 1209, G. 25370 (c.i.o 1 September 2003),
GoN R1218, G. 29446 (c.i.o 1 December 2006),
GoN R186, G. 29681 (c.i.o 1 M arch 2007),
GoN R952, G. 31395 (c.i.o 1 January 2009),
GoN R1077, G. 34877 (c.i.o 23 December 2011, unless otherwise indicated),
GoN R170, G. 38507 (c.i.o 1 March 2015),
GoN R1437, G. 41334 (c.i.o 15 December 2017).

The Minister of Finance has under section 72 of the Long-term Insurance Act, 1998, made the regulations set out in the Schedule.

SCHEDULE

ARRANGEMENT OF REGULATIONS

PART 1
INTERPRETATION

1.1 Definitions

PART 2
LIMITATION ON ASSETS
(Section 31)

2.1 Definitions

2.2 General limitation on assets

2.3 Assets of asset-holding intermediary

2.4 Liabilities of asset-holding intermediary

2.5 Deemed assets

2.6 Futures contracts

2.7 Option contracts

2.8 Other derivatives

Table
CATEGORIES OF ASSETS
(Regulation 2.2)

PART 3
REMUNERATION
(Section 49)

PART 3A
LIMITATION ON REMUNERATION FOR RENDERING SERVICES AS INTERMEDIARY· POLICIES OTHER THAN POLICIES TO WHICH PART 3B APPLIES

3.1 Application of this Part 3A, and definitions

3.2 General limitations

3.3 Time of payment of commission

3.4 Maximum commission payable

3.5 Adjustment and refund of commission

3.6 Special provisions concerning fund and fund member policies

3.7 Commission when policy has different benefit components

3.8 Voidness of certain agreements
3.9 Special provisions concerning replacement investment policies

3.9A Special provisions concerning replacement risk policies

ANNEXURE 1
TABLE

ANNEXURE 2
SCALE A

1. Normal commission
2. Special commission

PART 3B
PART 3B

LIMITATION ON REMUNERATION FOR RENDERING SERVICES AS INTERMEDIARY – INVESTMENT POLICIES THAT STARTED ON OR AFTER 1 JANUARY 2009

3.10 Application of this Part 3B, and definitions

3.11 General prescriptions

3.12 Maximum commission

3.13 Time of payment of commission

3.14 Premium increases and additional premiums

3.15 Discounting of commission

3.16 Redirecting of commission

3.17 Adjustment and refund of commission

3.18 Replacement investment policies

PART 3C

LIMITATION ON REMUNERATION FOR BINDER FUNCTIONS

3.19 Application of this Part 3C, and definitions

3.20 General principles for determining remuneration for binder functions

3.21 Remuneration that may be offered or provided to a binder holder

3.22 Participation by a binder holder in profits attributable to the policies referred to in a binder agreement

PART 3D
NOTIFICATION OF CERTAIN ARRANGEMENTS WITH INDEPENDENT INTERMEDIARIES OR REPRESENTATIVES

3.23 Definitions

3.24 Notification of certain arrangements with independent intermediaries or representatives

PART 4

LIMITATION ON PROVISIONS OF CERTAIN POLICIES

(Section 54)

4.1 Definitions

4.1A Application of this Part

4.2 Limitations on policies

4.2A Maximum fees, penalties or any other charges on loans

4.3 General exclusion

PART 5

REQUIREMENTS AND LIMITATIONS REGARDING THE VALUES AND BENEFITS OF POLICIES

(Section 54)

PART 5A

POLICIES OTHER THAN POLICIES TO WHICH PART 5B APPLIES

5.1 Application of this Part 5A, and definitions

5.2 Basis for determination of values and benefits of policies

5.3 Fund member policies

5.4 Policies other than fund member policies

5.4A Deduction of administration charge

5.5 Interest on the excess amount

5.6

5.7 Delayed implementation

5.8 Amendments to actuarial basis and values

5.9 Variable premium increases in respect of policies to which this Part applies

PART 5B

INVESTMENT POLICIES THAT STARTED ON OR AFTER 1 JANUARY 2009

5.10 Application of this Part 5B, and definitions

5.11 Basis for determination of values and benefits of policies

5.12 Maximum charges that may be deducted

5.13 Disclosure

PART 5C
PRINCIPLES FOR CALCULATION OF CAUSAL EVENT CHARGES

5.14 Definitions

5.15 General principles for the calculation of causal event charges

PART 6

BINDER AGREEMENTS

6.1 Definitions and interpretation

6.2 Requirements, limitations and prohibitions relating to binder holders

6.2A Governance and oversight requirements

6.3 Requirements, limitations and prohibitions relating to binder agreements

6.4

6.5 Exemption

6.6 Reporting requirements

6.7 Transitional arrangements

PART 7

TITLE AND COMMENCEMENT

7.1

7.2

PART 1
INTERPRETATION

1.1 Definitions

In these regulations “the Act” means the Long-term Insurance Act, 1998, and any word or expression to which a meaning has been assigned in the Act shall have the meaning so assigned to it, and unless a different meaning is assigned elsewhere in these regulations—

[Para subs by reg 2(a) of GoN R1437 in G. 41334.]

“Companies Act” means the Companies Act, 2008 (Act 71 of 2008);

[“Companies Act” ins by reg 2(b) of GoN R1437 in G. 41334.]

“effective date” means the date referred to in regulation 8.2;

[“effective date” ins by reg 2(c) of GoN R1437 in G. 41334.]

“insurer” means a long-term insurer;

[“insurer” ins by reg 2(d) of GoN R1437 in G. 41334.]

“juristic person” includes—

(a) a company, close corporation or co-operative incorporated or registered in terms of legislation whether in the Republic or elsewhere;

(b) an association, partnership, club or other body of persons of whatever description, corporate or unincorporated; or

(c) a trust or trust fund;

[“juristic person” ins by reg 2(e) of GoN R1437 in G. 41334.]

“Part” means the applicable Part of these regulations;

“policy” means a long-term policy;

[“policy” ins by reg 2(f) of GoN R1437 in G. 41334.]

“SAFEX” ...

[“SAFEX” rep by reg 2(g) of GoN R1437 in G. 41334.]

“Schedule” means the applicable Schedule to the Act;

“section” means the applicable section of the Act.

PART 2

LIMITATION ON ASSETS

(Section 31)

2.1 Definitions

For the purposes of this Part and section 31 and, unless the context otherwise indicates—

“asset-holding intermediary”, in relation to a long-term insurer, means an undertaking, other than a company the shares of which are listed on a licensed stock exchange in the Republic—

(a) which is a subsidiary of the long-term insurer or would be its subsidiary if that insurer were a company;

(b) the management of the investments of which is under de facto control of the long-term insurer; and

(c) which has assets which are regarded and dealt with, for all intents and purposes, as if they were the assets of the long-term insurer;

“associated company” means a company—

(a) which is an associate, as defined in section 26(5), of a long-term insurer;

(b) which exercises control, as defined in section 26(6), over a long-term insurer; or

(c) over which a long-term insurer exercises control as defined in section 26(6),

other than a company which is an asset-holding intermediary or a property company;

“call option” means an option contract under which the holder of the option contract has the right but not an obligation, in accordance with the terms of the contract, to purchase (or to make a cash settlement in lieu thereof) the quantity of the underlying asset covered by the call option contract;

“convertible debenture” means a debenture which is convertible into equity shares of a company;

“equity shares” in relation to a company, means shares, excluding any part thereof which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution;

[“equity shares” subs by reg 3(a) of GoN R1437 in G. 41334.]

“linked policy” means a long-term policy in relation to which the liabilities of the long-term insurer are linked liabilities as defined in section 33(2);

“long position” means long position as defined in the rules of SAFEX;

“market value”, in relation to an asset, means—

(a) in the case of an asset which is listed on a licensed stock exchange and for which a price was quoted on that stock exchange on the date as at which the value is calculated, the price last so quoted;

(b) in the case of an asset which is a long-term policy, the amount which on any day would be payable to the policyholder upon the surrender of the policy on that day;

(c) in any other case, the price which could have been obtained upon a sale of the asset between a willing buyer and a willing seller dealing at arm’s length, as estimated by the long-term insurer, or by the Registrar if the Registrar is not satisfied with that estimate;

“multiple” means the futures contract’s unit of trading in its description;

“n.e.s.” means not elsewhere specified in this Part;

“net loans” means the positive amount (if any) by which the aggregate amount of loans made by a long-term insurer to its asset-holding intermediary, exceeds the aggregate amount of loans made to it by that asset-holding intermediary;

“property company” means a company—

(a) whose ownership of—

(i) immovable property; or

(ii) all of the shares in a company—

(aa) whose principal business consists of the ownership of immovable property; or

(bb) which exercises control, as defined in section 26(6), over a company whose principal business consists of the ownership of immovable property; or

(iii) a linked policy, to the extent that the policy benefits thereunder are determined by reference to the value of immovable property,

constitutes, in the aggregate, 50 per cent or more of the market value of its assets;

(b) which derives 50 per cent or more of its income, in the aggregate, from—

(i) investments in immovable property;

(ii) investments in another company which derives 50 per cent or more of its income from investments in immovable property; or

(iii) a linked policy to the extent that the policy benefits thereunder are determined by reference to the value of immovable property; or

(c) which exercises control, as defined in section 26(6), over a company referred to in paragraph (a) or (b);

“put option” means an option contract under which the holder of the option contract has the right but not an obligation in accordance with the terms of the contract to sell (or to make a cash settlement in lieu thereof) the quantity of the underlying asset covered by the put option contract;

“rules of SAFEX” means rules issued by SAFEX in terms of section 10(2)(b) read with section 17 of the Financial Markets Act, 2012 (Act 19 of 2012);

[“rules of SAFEX” subs by reg 3(b) of GoN R1437 in G. 41334.]

“SAFEX” means the South-African Futures Exchange;

[“SAFEX” ins by reg 3(c) of GoN R1437 in G. 41334.]

“shares” include share stock;

“short position” means short position as defined in the rules of SAFEX.

2.2 General limitation on assets

For the purposes of section 31(1), a long-term insurer shall have assets of the kinds specified in Schedule 1 having a market value which, when expressed as a percentage of the aggregate value of the relevant liabilities of the long-term insurer, does not exceed the percentage specified in column 2 of the Table to this Part in relation to the particular kinds or categories of assets specified in column 1 of that Table.

2.3 Assets of asset-holding intermediary

For the purposes of regulation 2.2 the assets of the kinds set out in Schedule 1 of an asset-holding intermediary of a long-term insurer, other than a claim thereof against that long-term insurer, shall be deemed to be assets of the long-term insurer—

(a) in place of the net loans made by it to the asset-holding intermediary, to the extent determined in accordance with the formula—

A

___ x C

B

(b) in place of its shares, other than equity shares, in the asset-holding intermediary, to the extent determined in accordance with the formula—

A

___ x D

B

(c) in place of its equity shares in the asset-holding intermediary, to the extent determined in accordance with the formula—

F

E x ____

G

in which formulae—

1. represents the market value of each asset or kind or category of asset specified in column 1 of the Table to this Part of the asset-holding intermediary;

2. represents the aggregate market value of all the assets of the asset-holding intermediary;

100. represents the amount of any claim arising from any net loans to the asset holding intermediary;

4. represents the value of shares, other than equity shares, held by the long-term insurer in the asset-holding intermediary, plus or minus the amount to be apportioned to those shares by virtue of the excess or shortfall of the assets of the asset-holding intermediary over its liabilities;

5. represents A minus the sum of the amounts determined in accordance with the formulae referred to in paragraphs (a) and (b);

6. represents the value of the equity shares held by the long-term insurer in the asset-holding intermediary;

7. represents the aggregate value of all equity shares of the asset-holding intermediary.

2.4 Liabilities of asset-holding intermediary

For the purposes of regulation 2.2, the liabilities of an asset-holding intermediary of a long-term insurer, other than a claim of the long-term insurer against that asset-holding intermediary, shall be deemed to be liabilities of the long-term insurer to the extent determined in accordance with the formula—

B

A x ____

C

in which formula—

1. represents the aggregate value of those liabilities, plus the value of those of the shares, other than equity shares, in the asset-holding intermediary concerned, which are not owned by the long-term insurer concerned;

2. represents the value of the equity shares held by the long-term insurer in the asset-holding intermediary;

100. represents the aggregate value of all equity shares of the asset-holding intermediary.

2.5 Deemed assets

For the purposes of regulation 2.2, there shall be deemed as assets of a long-term insurer, or, where appropriate, its asset-holding intermediary, in place of the market value of an asset thereof which is a linked policy, those assets of the particular kind of categories specified in Schedule 1 to the extent, in respect of each such particular kind or category, of an amount which bears the same proportion to the market value of the linked policy as each of those kinds or categories of assets by reference to the value of which the policy benefits are to be determined, is stated in terms of the policy (or, if not so stated, is estimated by the long-term insurer which is liable under the policy), bears to the total of all of the assets to which the policy is linked.

2.6 Futures contracts

(1) For the purposes of regulation 2.2, a futures contract shall be deemed to be the asset or kind of asset to which the futures contract relates. The exposure in consequence of concluding a futures contract shall be included in the calculation of the overall exposure to the particular asset or category of assets concerned, and the assets of the kind specified in item 1, 2, 16(5)(d) or 18 of the Table to Schedule 1 shall be adjusted accordingly. The exposure arising from the use of a purchased futures contract (long position) shall be added, while assets of the kind specified in item 1, 2, 16(5)(d) or 18 of the Table to Schedule 1 shall be reduced, and the exposure arising from the use of a sold futures contract (short position) deducted from the particular asset or category of assets whilst the assets of the kind specified in item 1, 2, 16(5)(d) or 18 of the Table to Schedule 1 shall be increased.

(2) The balance of any margin deposit shall be deemed to be an asset of the kinds specified in items 2 and 16(5)(b) of the Table to Schedule 1.

(3) For the purposes of this regulation “exposure” means the number of contracts x multiple x current price, where the current price shall be the “mark-to-market” as defined in the rules of SAFEX on the reporting date.

2.7 Option contracts

(1) For the purposes of regulation 2.2, an option contract shall be deemed to be the asset or kind of asset to which the option contract relates. The exposure in consequence of concluding an option contract shall be included in the calculation of the overall exposure to the particular asset or category of assets concerned and the assets of the kind specified in item 1, 2, 16(5)(d) or 18 of the Table to Schedule 1 shall be adjusted accordingly. The exposure arising from the use of an option contract that results in a positive holding shall be added to the particular asset or category of assets while assets of the kind specified in item 1, 2, 16(5)(d) or 18 of the Table to Schedule 1 shall be reduced. The exposure arising from the use of an option contract that results in a negative holding shall be deducted from the particular asset or category of assets, while assets of the kind specified in item 1, 2, 16(5)(d) or 18 of the Table to Schedule 1 shall be increased. A positive holding constitutes a call option bought (long call) and a put option sold (short put), and a negative holding constitutes a call option sold (short call) and a put option bought (long put).

(2) The balance of any margin shall be deemed to be an asset of the kinds specified in items 2 and 16(5)(b) of the Table to Schedule 1.

(3) For the purposes of this regulation “exposure” means the number of contracts x delta x the market value of the underlying asset or kind of assets where “delta” represents the change in option contract premium associated with one percentage point move in the market price of the underlying asset.

2.8 Other derivatives

Any derivative in relation to which no basis for valuation has been provided in regulation 2.6 or 2.7 shall be—

(a) deemed to be the asset or kind of asset to which the derivative relates; and

(b) valued as determined by the Registrar.

Table

CATEGORIES OF ASSETS

(Regulation 2.2)

In this Table particular items or groups of items referred to in Schedule 1, or particular kinds of assets falling within the more general description of those categories in Schedule 1, are specified in column 1. The maximum permitted holding of those specified assets, calculated according to their market value and expressed as a percentage of the liabilities concerned, is specified in column 2.

PART 3

REMUNERATION

[Heading subs by reg 4(a) of GoN R1437 in G. 41334.]

(Section 49)

PART 3A
LIMITATION ON REMUNERATION FOR RENDERING SERVICES AS INTERMEDIARY· POLICIES OTHER THAN POLICIES TO WHICH PART 3B APPLIES

[Heading ins by reg 1.1 of GoN R952 in G. 31395; subs by reg 4(b) of GoN R1437 in G. 41334.]

3.1 Application of this Part 3A, and definitions

[Heading subs by reg 1.2(a) of GoN R952 in G. 31395.]

This Part 3A applies to policies, components and benefit components other than those to which Part 3B applies, and unless the context indicates otherwise—

[Para following the heading subs by reg 1.2(a) of GoN R952 in G. 31395.]

“administrative work”...

[“administrative work” rep by reg 4(c) of GoN R1437 in G. 41334.]

“annualised premium”, in relation to a group scheme or fund policy, means 12/m of the total premiums payable under the group scheme or fund policy during a scheme year, excluding transfer values inwards and credits arising in the group scheme or fund policy to employers of fund members in consequence of the withdrawal of members;

“benefit component” means each separately identifiable kind of policy benefit undertaken to be provided under a particular kind of policy;

“component” means a part of a policy, if any, where that part provides a policy benefit for which an identifiable, separate premium is payable;

[“component” ins by reg 1.2(b) of GoN R952 in G. 31395.]

“compulsory”, in relation to an annuity, means that there is an obligation in terms of the rules of a fund to enter into a policy which provides the annuity;

“credit scheme” means a group scheme under which every life insured is indebted to or a surety of the policyholder whose insurable interest as policyholder arises solely from that indebtedness or suretyship;

“fund member policy” means an individual policy—

(a) of which a fund is the policyholder;

(b) under which a specified member of the fund (or the surviving spouse, children, dependants or nominees of the member) is the life insured; and

(c) which is entered into by the fund exclusively for the purpose of funding that fund’s liability to the member (or the surviving spouse, children, dependants or nominees of the member) in terms of the rules of that fund;

“group of companies” has the meaning defined in section 1 of the Companies Act;

[“group of companies” ins by reg 4(d) of GoN R1437 in G. 41334.]

“group scheme” means a scheme or arrangement which provides for the entering into of one or more policies, other than an individual policy, in terms of which two or more persons without an insurable interest in each other, for the purposes of the scheme, are the lives insured;

“immediate annuity” means an annuity that is paid under a policy, where the first payment period begins within 12 months after the policy has been entered into;

[“immediate annuity” ins by reg 1.2(c) of GoN R952 in G. 31395.]

“independent intermediary” means a person, other than a representative, rendering services as intermediary;

“individual policy” means a policy under which a particular person is the life insured, or two or more particular persons having an insurable interest in each other are the lives insured jointly;

“investment policy” means a policy other than a policy which is an “excluded policy” as defined in Part 5A;

[“investment policy” subs by reg 1.2(d) of GoN R952 in G. 31395.]

“m” means the number of months in a scheme year;

“multiple premium policy” means a policy under which the premium is payable in two or more amounts;

“policy” means a long-term policy other than a reinsurance policy;

“policy benefit” has the meaning assigned to it in the Act, but excludes a loan in respect of the policy, or a consideration payable upon the full or partial surrender of the policy;

[“policy benefit” ins by reg 1.2(e) of GoN R952 in G. 31395.]

“Policyholder Protection Rules” means the Policyholder Protection Rules made under section 62 of the Act;

[“Policyholder Protection Rules” ins by reg 4(e) of GoN R1437 in G. 41334.]

“premium”, in relation to a premium period, means the premium which is payable under a policy in respect of every separately identifiable benefit component of that policy;

[“premium” am by reg 4(f) of GoN R1437 in G. 41334.]

“premium-paying term”, in relation to a multiple premium policy, other than a group scheme or fund policy, means the whole period during which the several amounts of premium are payable, determined by reference to—

(a) the longer of—

(i) 10 years; or

(ii) the number of complete years in the period extending from the date of commencement of the first premium period of the policy to a date—

(aa) in the case of a fund member policy, 66 years; or

(bb) in any other case, 75 years, after the date of birth of the life insured under the policy; or

(b) if it is stated in or ascertainable from the written provisions of the policy at its commencement, and is a shorter period than that determined in accordance with paragraph (a), the shorter of—

(i) the particular limited period for which those several amounts of premium are expressed to be payable; or

(ii) the period during which those several amounts of premium must be paid before there shall or may—

(aa) be provided a policy benefit, otherwise than upon the death of, or upon the occurrence of a health event or a disability event in relation to a life insured under the policy; or

(bb) be paid, upon the surrender of the policy, consideration the amount of which is stated in or ascertainable from written provisions of the policy at its commencement;

“premium period”, in relation to a policy other than a group scheme or a fund policy, means one of a succession of periods of time, each of 12 months’ duration, the first of which commences on, and ends 12 months after, the date on which the policy is entered into or, if it is a later date, the date on which the obligation of the long-term insurer becomes operative;

“primary commission” means commission which is payable generally in respect of all policies in accordance with this Part other than secondary commission;

“rendering services as intermediary” means the performance by a person other than a long-term insurer or a policyholder, on behalf of a long-term insurer or a policyholder, of any act directed towards entering into, maintaining or servicing a policy or collecting, accounting for or paying premiums or providing administrative services in relation to a policy, and includes the performance of such an act in relation to a fund, a member of a fund and the agreement between the member and the fund;

“replacement investment event” means a causal event resulting in the levying of a causal event charge in excess of 15% of the investment value or materially equivalent value of a policy, where ‘causal event’, ‘causal event charge’ and ‘investment value’ have the meanings assigned to them in Part 5A and ‘materially equivalent value’ means the value contemplated in subregulation 5.2(2)(b) of Part 5A;

[“replacement event” subs by reg 1.2(f) of GoN R952 in G. 31395; subs as “replacement investment event” by reg 4(g) of GoN R1437 in G. 41334.]

“replacement investment policy” means a multiple premium policy which is an investment policy, where the policyholder is or was either the policyholder or the life insured in respect of any other investment policy, and where a replacement event occurs in respect of that other investment policy within a period of four months before or after the replacement investment policy is entered into;

[“replacement policy” subs as “replacement investment policy” by reg 4(h) of GoN R1437 in G. 41334.]

“replacement risk policy” means an individual risk policy as defined in the Policyholder Protection Rules that is entered into as a result of a replacement as contemplated in the Policyholder Protection Rules;

[“replacement risk policy” ins by reg 4(i) of GoN R1437 in G. 41334.]

“representative” means a person employed or mandated by a long-term insurer for the purpose of rendering services as intermediary only in relation to policies—

(a) entered into or to be entered into by that insurer;

(b) entered into or to be entered into by another insurer which is also part of the same group of companies that the insurer is part of;

(c) entered into or to be entered into on or after the effective date by another insurer which has a written agreement with that insurer in terms of which the person employed or mandated by that insurer may render services as intermediary in relation to—

(i) a class of policies of that other insurer which none of the insurers referred to in paragraphs (a) and (b) are registered to underwrite; or

(ii) a class or types of policies of that other insurer which the Registrar has determined by notice on the official website; or

(d) entered into prior to the effective date by another insurer which concluded a written agreement with that insurer prior to 1 January 2017 in terms of which the person employed or mandated by that insurer may render services as intermediary in relation to that other insurer's policies;

“retirement annuity fund” means a retirement annuity fund as defined in the Income Tax Act, 1962;

[“retirement annuity fund” ins by reg 1.2(g) of GoN R952 in G. 31395.]

“Scale A” means the scale of commission set out in Annexure 2 to this Part;

“secondary commission” means commission which is payable, in addition to primary commission, in respect of certain policies only, as provided in and subject to this Part;

“scheme year”, in relation to a group scheme or a fund policy, means a period—

(a) commencing on the later of—

(i) the date that the fund policy or group scheme is entered into with the long-term insurer concerned, or any anniversary of that date; or

(ii) the date of the appointment of an independent intermediary for the purposes of rendering services as intermediary in relation to the group scheme or fund policy;

(b) and ending on the earlier of—

(i) the day preceding the commencement of the next scheme year;

(ii) the date of termination of the group scheme or fund policy with that long-term insurer; or

(iii) the date of termination of the appointment of the independent intermediary rendering services as intermediary in relation to that group scheme or fund policy;

“single premium policy” means a policy under which the premium is payable in one amount only;

“Table” means the Table set out in Annexure 1 to this Part;

“term cover” means a policy under which a long-term insurer undertakes to provide policy benefits only upon—

(a) the life of a life insured having ended;

(b) the life of a life insured having begun;

(c) a health event occurring; or

(d) a disability event occurring,

during a specified period only;

“this Part” means this Part 3A;

[“this Part” ins by reg 1.2(h) of GoN R952 in G. 31395.]

“tied”, in relation to a compulsory annuity, means that there is an obligation to enter into the policy concerned with a particular insurer and no other.

3.2 General limitations

(1) No consideration shall, directly or indirectly, be provided to, or accepted by or on behalf of, an independent intermediary for rendering services as intermediary, otherwise than by way of the payment of commission in monetary form.

(2) No commission shall be paid or accepted otherwise than in accordance generally with this Part and more particularly as specified in the Table.

(3) Irrespective of how many persons render services as intermediary in relation to a policy, the total commission payable in respect of that policy shall not exceed the maximum commission payable in terms of regulation 3.4.

(4) No secondary commission shall be paid or accepted—

(a) in respect of a single premium policy;

(b) except in the case of a policy and benefit component of a kind specified in items 1.1, 2.1.1, 2.2.1, 3.2.1 and 5.1.1 of the Table;

[Reg 3.2(4)(b) subs by reg 4(k) of GoN R1437 in G. 41334.]

(d) if the policy concerned has terminated before the commencement of its second premium period.

(4A) No remuneration or consideration shall, directly or indirectly, be provided to, or accepted by or on behalf of, a representative for rendering services as intermediary, otherwise than in accordance with the principle of "Equivalence of Reward", in terms whereof the remuneration paid, whether in cash or in kind, must substantially be in accordance with this Part.

[Reg 3.2(4A) ins by reg 4(l) of GoN R1437 in G. 41334.]

(5) The Registrar may for purposes of subregulation (4A) by notice on the official website determine that particular forms of remuneration or consideration, whether in cash or in kind, comply or do not comply with the principle of “Equivalence of Reward”.

[Reg 3.2(5) ins by reg 4(m) of GoN R1437 in G. 41334.]

3.3 Time of payment of commission

(1) Primary commission shall not be paid or accepted before—

(a) the first premium period has commenced; or

(b) the premium in respect of which it is payable has been received by the long-term insurer concerned, except that, in the discretion of that insurer—

(i) in the case of a policy and benefit component of a kind specified in items 1.1, 2.1.1, 2.2.1, 3.2.1 and 5.1.1 of the Table, primary commission may be paid and accepted in one or more amounts after the policy has been entered into;

[Reg 3.3(1)(b)(i) subs by reg 4(n) of GoN R1437 in G. 41334.]

(ii) in the case of a group scheme or fund policy, primary commission in respect of a particular scheme year may be paid and accepted in one or more amounts after the policy has been entered into; and

(iii) in any other case, primary commission in respect of a particular premium period may be paid in one or more payments and accepted after the commencement of that premium period.

(2) Secondary commission may be paid and accepted in one or more amounts after the second premium period has commenced, at the discretion of the long-term insurer.

(3) If the full amount of primary or secondary commission is paid in more than one amount aggregating to that full amount, the long-term insurer concerned may pay interest at 15 per cent per annum, or such other rate of interest as may be prescribed by the Registrar from time to time, compounded annually from the earliest date on which the full amount could have been paid, on any outstanding amount, until the full amount has been paid.

3.4 Maximum commission payable

(1) No primary commission shall exceed, in respect of each kind of policy and benefit component specified in column 2 of the Table, an amount arrived at by applying, in the case of—

(a) a single premium policy, other than a fund policy and a group scheme, the percentage specified in column 3 of the Table to the amount of the premium concerned;

(b) a multiple premium policy, other than a fund policy and a group scheme, the percentage specified in column 4 of the Table to the total amount of the premium payable during the premium-paying term, calculated as if the premium payable during the first premium period were payable at that level throughout the premium-paying term of the policy, which commission may be paid and accepted in one or more amounts at the discretion of the long-term insurer: Provided that such commission shall not exceed, in the case of a policy and benefit component specified in items 1.1, 2.1.1, 2.2.1, 3.2.1 and 5.1.1 of the Table, an amount equal to the percentage specified in column 5 of the Table of the premium payable during the first premium period of the policy; or

[Reg 3.4(1)(b) subs by reg 4(o) of GoN R1437 in G. 41334.]

(c) a fund policy or a group scheme, an amount which shall not exceed 12/m of the aggregate commission on the annualised premium as provided for in Scale A.

(2) No secondary commission shall exceed one-third of the amount of the primary commission paid in respect of the policy and benefit component concerned: Provided that if such commission is paid and accepted in more than one amount, the value thereof discounted at 15 per cent per annum, or such other rate of interest as may be prescribed by the Registrar from time to time, compounded annually to the beginning of the second premium period of the policy, shall not exceed one third of the value of the primary commission excluding interest.

3.5 Adjustment and refund of commission

(1) If the provisions of a multiple premium policy are varied so that the total amount of the premium which was payable during the premium-paying term of the policy and which was used for the purpose of the calculation of commission in terms of regulation 3.4(1), is, for any reason—

[Words preceding reg 3.5(1)(a) subs by reg 4(p) of GoN R1437 in G. 41334.]

(a) increased, the primary and secondary commission payable in relation to that increase shall be dealt with in terms of this Part as if—

(i) the total amount of the increase payable during the remainder of the premium-paying term were the only premium payable under the policy; and

(ii) the premium period in which that variation becomes operative were the first premium period of the policy; or

(b) reduced, with effect from a date before the end of the second premium period of the policy—

(i) the primary commission previously calculated in terms of regulation 3.4(1)(b) to be payable shall be recalculated in accordance with this Part in relation to the total amount of premium as so reduced and any amount of commission which has been paid, or would have been payable had the reduction not occurred, and which exceeds the amount payable in accordance with the recalculation, shall be determined by the insurer concerned; such part of that amount as exceeds the percentage in column A of the Table in subregulation (2) shall be reversed and, if already paid, shall be refunded to the insurer by the person to whom it was paid;

(ii) the secondary commission previously calculated in terms of regulation 3.4(2) to be payable, shall be recalculated in accordance with this Part in relation to the total amount of primary commission as reduced in accordance with subparagraph (i) and any amount of commission which has been paid, or would have been payable had the reduction not occurred, and which exceeds the amount payable in accordance with the recalculation shall be determined by the insurer concerned; such part of that amount as exceeds the percentage in column B of the Table in subregulation (2) shall be reversed and, if already paid, shall be refunded to the insurer by the person to whom it was paid.

(2)

(a) If a premium or any part thereof is—

(i) for any reason refunded by the long-term insurer or, in the case of a multiple premium policy which is not—

(aa) a fund policy; or

(bb) a fund member policy other than a fund member policy which funds a retirement annuity fund, or

(cc) a policy in respect of which commission has been paid only after each premium in respect of which it is payable has been received by the long-term insurer concerned (including but not limited to a replacement investment policy),

[Reg 3.5(2)(a)(i)(cc) subs by reg 4(q) of GoN R1437 in G. 41334.]

for any reason not paid on its due date, including that the policy has been made paid-up or surrendered, but excluding termination upon a health event, a disability event or the death of a life insured, during the first two premium periods in the case of a policy referred to in items 1.1, 2.1.1, 2.2.1, 3.2.1 and 5.1.1 of the Table the commission payable in terms of this Part shall be recalculated by reference to the scale and shall not exceed the percentage of maximum commission in column A or B, respectively, and any amount of commission which has already been paid in excess of the commission as so recalculated, shall be reversed by the long-term insurer and refunded to it by the person to whom it was paid:

[Words succeeding reg 3.5(2)(a)(i)(cc) subs by reg 4(r) of GoN R1437 in G. 41334.]

(ii) in the case of any policy not mentioned in subparagraph (i), for any reason refunded by the long-term insurer, or for any reason not paid on its due date, any commission paid by the long-term insurer shall be reversed and refunded to it by the person to whom it was paid;

(b) Subparagraphs (i) and (ii) of paragraph (a) shall—

(i) not apply to the extent that, and for so long as, payment of an unpaid premium is effected by means of the maintenance of the policy in force as contemplated in section 52(2) or (3);

(ii) be deemed not to have been applicable if and to the extent that, any premium or part thereof which was unpaid is later paid to the long-term insurer, and in that event any reversed commission refunded to the long-term insurer may again be paid to the person by whom it was refunded.

3.6 Special provisions concerning fund and fund member policies

(1) No commission shall be paid or accepted in relation to so much of the premium payable under a fund policy as has already borne commission under a prior, substituted fund policy.

(2) The commission payable in respect of a fund policy or a fund member policy, as provided for in this Part shall be reduced by the value of any consideration provided by the fund concerned, or its members, for services rendered as intermediary in connection with the agreement whereby the fund assumed the obligation concerned to the member.

3.7 Commission when policy has different benefit components

If, in respect of a policy which comprises more than one benefit component, it is not specified in or ascertainable from the written provisions of the policy what portion of the total premium payable is attributable to the different benefit components, the commission payable in terms of this Part shall not exceed that which would have been so payable had the policy comprised, and had the total premium been attributable to, only that benefit component which most closely reflects the main purpose of the policy to the exclusion of other subordinate purposes of the policy.

3.8 Voidness of certain agreements

Any agreement, scheme or arrangement to provide consideration for the rendering of services as intermediary otherwise than in accordance with this Part shall be void.

3.9 Special provisions concerning replacement investment policies

(1) Commission may only be paid in respect of a replacement investment policy as a level percentage of the premiums received, and may only be paid once the premium in respect of which it is payable has been received by the long-term insurer concerned, whether or not—

(a) the replacement investment policy comprises more than one benefit component; or

(b) the portion of the total premium attributable to the different benefit components of the replacement investment policy is specified in or ascertainable from the written provisions of the policy.

(2)

(a) The total amount of commission paid on a replacement investment policy may not exceed the total of the primary and secondary commission that would have been payable in terms of this Part in respect of a policy other than a replacement investment policy; and

(b) in determining such total amount, the long-term insurer concerned may include interest at 15 per cent per annum, or such other rate of interest as may be prescribed by the Registrar from time to time, compounded annually from the earliest date on which the full amount of primary or secondary commission could have been paid if the policy was not a replacement policy, until such full amount has been paid.

(3) In the event of commission on a replacement policy being paid or accepted otherwise than in accordance with subregulation (1) or (2), whether due to the fact that the long-term insurer was not aware at the time of payment that the policy in question was a replacement policy, or for any other reason, then any commission paid by the long-term insurer in excess of the commission payable in accordance with subregulation (2), or paid earlier than permitted in subregulation (1), shall upon identification of the excess or early payment, be reversed and refunded to the long-term insurer by the person to whom it was paid.

[Reg 3.9 subs by reg 4(s) of GoN R1437 in G. 41334.]

3.9A Special provisions concerning replacement risk policies

(1) Notwithstanding regulation 3.4, a long-term insurer must either—

(a) not pay any commission to any person in respect of a replacement risk policy unless and until the confirmation referred to in Rule 19 of the Policyholder Protection Rules, where required, has been provided; or

(b) where the long-term insurer does pay commission to a person in respect of a replacement risk policy, reverse such payment and ensure that the payment is refunded to the long-term insurer if the confirmation referred to in Rule 19 of the Policyholder Protection Rules, where required, is not provided within the time specified in that Rule.

(2) In the event of commission on a replacement risk policy being paid or accepted otherwise than in accordance with subregulation (1), whether due to the fact that the long-term Insurer was not aware at the time of payment that the policy in question was a replacement risk policy, or for any other reason, then any commission paid by the long-term insurer shall upon identification be reversed and refunded to the long-term insurer by the person to whom it was paid.

ANNEXURE 1

TABLE

[Annexure 1 subs by reg 1.3 of GoN R952 in G. 31395; subs by reg 4(u) of GoN R1437 in G. 41334.]

ANNEXURE 2

SCALE A

1. Normal commission

[Annexure I scale A para 1 subs by reg 4(v) of GoN R1437 in G. 41334.]

2. Special commission

In addition to the normal commission contemplated in paragraph 1, there may be paid, once only and only in respect of the period of 12 months following the date on which the group scheme or fund policy is established, a special commission equal to the lesser of-

(a) 7,5 per cent of the total premium payable during that period of 12 months; or

(b) R7 500.

[Part 3 am by GoN R197 in G. 20934, reg 2(a) of GoN R164 in G. 23105, by GoN R1208 and 1209 in G. 25370; subs by reg 1 of GoN R186 in G. 29681; effectually renumbered as Part 3A by GoN R952 in G. 31395; Annexure 2 scale A para 2(b) subs by reg 4(w) of GoN R1437 in G. 41334.]

PART 3B
LIMITATION ON REMUNERATION FOR RENDERING SERVICES AS INTERMEDIARY – INVESTMENT POLICIES THAT STARTED ON OR AFTER 1 JANUARY 2009
[Part 3B heading subs by reg 4(x) of GoN R1437 in G. 41334.]

3.10 Application of this Part 3B, and definitions

(1) This Part 3B applies to—

(a) investment policies that started on or after 1 January 2009, but except only for purposes of regulation 3.15(4), does not apply to risk components of such investment policies; and

(b) any variable premium increase (as defined in Part 5A) in respect of a policy to which Part 5A applies.

[Reg 3.10(1) subs by reg 4(y) of GoN R1437 in G. 41334.]

(2) In this Part 3B, unless defined differently in this Part 3B or unless the context indicates otherwise, any word or expression to which a meaning has been assigned in Part 3A or 5B has the meaning assigned to it in that Part, and –

“discount term”, in relation to a multiple premium policy, means the period that begins on the premium commencement date and:

(a) in the case of a fund member policy, is a period of 25 years or, if it is shorter, the period for which the premium is to be paid specified in the policy, or determinable from its written provisions, as at the start of the policy; or

(b) in the case of a policy other than a fund member policy, is a period of 15 years or, if it is shorter, the period for which the premium is to be paid specified in the policy, or determinable from its written provisions, as at the start of the policy;

“fund member policy” has the meaning assigned to it in Part 5A;

“insurer” means a long-term insurer;

“investment policy” has the meaning assigned to it in Part 5B;

“member” has the meaning assigned to it in Part 5A;

“payment date”, in relation to a premium, means the date on which that premium must be paid in terms of the policy;

“preservation fund” means a pension preservation fund or a provident preservation fund, which terms have the meanings assigned to it in section 1 of the Income Tax Act, 1962 (Act 58 of 1962);

“risk component” means a component that on its own constitutes an excluded policy;

“Table” means the table accompanying this Part; and

“this Part” means this Part 3B.

3.11 General prescriptions

(1) Remuneration for rendering services as intermediary may be paid by or on behalf of an insurer, and received by an independent intermediary—

(a) only in accordance with this Part;

(b) only after the policy has started; and

(c) only as commission in monetary form.

(2)

(a) No remuneration or consideration shall, directly or indirectly, be provided to, or accepted by or on behalf of, a representative for rendering services as intermediary, otherwise than in accordance with the principle of Equivalence of Reward, in terms whereof the remuneration paid, whether in cash or in kind, must substantially be in accordance with this Part.

(b) The Registrar may for purposes of paragraph (a) by notice on the official website determine that particular forms of remuneration or consideration, whether in cash or in kind, comply or do not comply with the principle of "Equivalence of Reward”.

[Reg 3.11(2) subs by reg 4(z) of GoN R1437 in G. 41334.]

(3) The total commission per policy may not exceed the maximum prescribed by this Part, irrespective whether more than one independent intermediary or representative renders services in respect of that policy.

(4) If a policy has two or more components, each component must for the purposes of this Part, and where applicable, for the purposes of Part 3A, be dealt with as if it were a separate policy.

(5) If a policy (that does not have two or more components) or a component provides more than one type of policy benefit, and one or more of these benefits is a benefit other than a risk benefit, the maximum commission in respect of that policy or component must be determined in accordance with this Part.

(6) Any agreement, scheme or arrangement to offer, provide, accept, pay, or receive remuneration, otherwise than in accordance with this Part, is void.

3.12 Maximum commission

(1) The maximum commission that may be paid in respect of a multiple premium policy, is an amount equal to 5% of each premium.

(2)

(a) Subject to paragraph (b), the maximum commission that may be paid in respect of a single premium policy is an amount equal to 3% of the premium;

(b) The maximum commission that may be paid in respect of a single premium policy—

(i) of which the policy benefit is an immediate annuity, is an amount equal to 1.5% of the premium;

(ii) that is a fund member policy which funds a retirement annuity fund, upon a transfer from a fund other than a retirement annuity fund, is an amount equal to 1.5% of the premium;

(iii) that is a fund member policy which funds a retirement annuity fund, upon a transfer from a retirement annuity fund, is nil;

(iv) that is a fund member policy which funds a preservation fund, upon a transfer from a fund other than a preservation fund, is an amount equal to 1.5% of the premium;

(v) that is a fund member policy which funds a preservation fund, upon a transfer from a preservation fund, is nil;

(vi) that is a fund member policy, which does not fund a retirement annuity fund or a preservation fund, upon a transfer from another fund, is an amount equal to 1.5% of the premium.

3.13 Time of payment of commission

(1) Commission in respect of a premium may be paid only on or after the payment date of that premium.

(2) Despite subregulation (1), an insurer, at its discretion, may discount commission in respect of a multiple premium policy in terms of regulation 3.15, and pay the discounted commission at any time after the policy has started.

(3)

(a) An insurer, at its discretion, may pay commission in two or more instalments, provided that the sum of the instalments, before any increase in terms of paragraph (b), does not exceed the maximum commission referred to in regulation 3.12.

(b) Where commission is paid in two or more instalments, the insurer, at its discretion, may increase any instalment at an annual effective rate of not more than 6% from the date the commission becomes payable to the date on which that instalment is paid.

3.14 Premium increases and additional premiums

If the premium is increased in accordance with the terms of the policy as at the start of the policy or as amended from time to time, or if an additional premium is paid, the discounted and undiscounted commission in respect of the increased portion of the premium or in respect of the additional premium must, except for the purpose of subregulation 3.15(4), be dealt with as if—

(a) the increased portion of the premium, or the additional premium, were a premium payable or paid under a separate policy; and

(b) that separate policy starts on the first or only payment date of the increased portion of the premium or the additional premium.

3.15 Discounting of commission

(1) In the case of a multiple premium policy the insurer, at its discretion, may discount a portion of the commission in respect of every premium of which the payment date falls within the discount term: Provided that an insurer, at its discretion, may discount a portion of the commission in respect of every premium of which the payment date falls within a shorter period than the discount term, in which case that shorter period will be regarded as the discount term for purposes of that policy.

(2) The maximum portion of the commission that may be discounted in respect of each premium is an amount equal to 2,5% of that premium, and the portion of commission that is discounted must be the same proportion of every premium.

(3) The discounting must be done—

(a) once only and only at the start of the policy, and this may be done also at the payment of an additional premium and at the start of payment of an increased premium, as contemplated in regulation 3.14;

(b) from the payment date of each premium to the premium commencement date, at an annual effective rate of not less than 6%.

(4) Despite subregulation (2), but subject to regulation 3.12(1), if the commission discounted for the policy, or where the policy at its start has two or more components the aggregate commission discounted for all the components (including risk components), comes to less than four hundred Rand, the insurer, at its discretion, may discount a larger portion of the commission in respect of all the premiums, at a level higher than 2,5% of each premium, to allow for a discounted commission for the policy, or an aggregate discounted commission for all the components of the policy (including risk components), of not more than four hundred Rand.

(5) The discounting in terms of subregulation (4) may be done once only and only at the start of the policy, but not at the payment of an additional premium or at the start of an increased premium, as contemplated in regulation 3.14.

3.16 Redirecting of commission

(1) A policyholder (excluding a person to whom the policy has been ceded as security) or member may at any time during the life of an investment policy instruct the insurer in writing to stop paying further discounted and undiscounted commission to an independent intermediary or a representative, provided that as part of that instruction the policyholder or member also must instruct the insurer—

(a) to pay the further commission to another independent intermediary, nominated by the policyholder or member in that instruction, who has a contract with the insurer for rendering services as intermediary in respect of policies of the insurer of the type of policy in question; or

(b) to pay the applicable portion of the further commission, in accordance with the principle of equivalence of reward referred to in regulation 3.11(2), to another representative of the insurer nominated by the policyholder or member in that instruction, who is approved by the insurer to render services as intermediary in respect of the policy in question; or

(c) to pay the applicable portion of the further commission, in accordance with the principle of equivalence of reward referred to in regulation 3.11(2), to another representative of the insurer to be appointed by the insurer to render services as intermediary to the policyholder or member in respect of the policy in question.

(2) The insurer must, at no additional cost to the policyholder, comply with an instruction contemplated in subregulation (1).

3.17 Adjustment and refund of commission

(1) If, within five years after the premium commencement date, the premium is stopped or decreased – for any reason other than where the policy ends on account of a disability event, a health event, or the death of a life insured - the insurer must reverse a proportion of any discounted commission payable or paid on premiums received.

(2) The proportion of commission to be reversed based on premiums received as contemplated in terms of subregulation (1), must be calculated by applying the applicable adjustment percentage in column 2 of the Table to the ratio that the premium decrease bears to the premium in respect of which the discounted commission first was calculated.

(3) If a premium or a part of it, of which the payment date falls within five years after the premium commencement date, is not paid to the insurer or is paid back by the insurer - for any reason other than where the premium is stopped or decreased, or where the policy ends on account of a disability event, a health event, or the death of a life insured - the insurer must reverse any discounted commission payable or paid in respect of that premium or part of it.

(4) If a premium or a part of it, whether its payment date falls within or after five years after the premium commencement date, is not paid to the insurer or is paid back by the insurer, the insurer must reverse any undiscounted commission paid in respect of that premium or part of it.

(5)

(a) If discounted or undiscounted commission paid to an independent intermediary or a representative is reversed in terms of subregulation (1), (3) or (4), the independent intermediary or representative must pay it back to the insurer.

(b) If commission has been paid back to the insurer in terms of paragraph (a), and the premium in question or part of it is paid to the insurer thereafter, the insurer may again pay that commission to the independent intermediary or representative.

(6) Subregulations (1) to (5) do not apply to the extent that, and for as long as, the policy is maintained in terms of section 52(2), but not made paid-up.

3.18 Replacement investment policies

(1) Commission may not be discounted in respect of a replacement Investment policy.

(2) In the event of commission in respect of a replacement investment policy having been paid otherwise than in accordance with this Part, whether because the insurer at the time of the payment was not aware that the policy in question was a replacement investment policy, or for any other reason, then any commission paid by the insurer in excess of the maximum that may be paid in accordance with this Part, or paid earlier than permitted in this Part, must, upon identification of the payment, be reversed and paid back to the insurer by the person to whom it was paid.

[Reg 3.18 subs by reg 4(aa) of GoN R1437 in G. 41334.]

Table
Regulation 3.17(2)

[Part 3B ins by reg 1.4 of GoN R952 in G. 31395.]

PART 3C

LIMITATION ON REMUNERATION FOR BINDER FUNCTIONS

3.19 Application of this Part 3C, and definitions

(1) This Part 3C applies to remuneration provided by an insurer or any person on its behalf to a person for a rendering binder function.

(2) In this Part 3C unless the context indicates otherwise, any word or expression to which a meaning has been assigned in Part 6 has the meaning assigned to it in that Part, and—

“cell structure” means an arrangement under which a person (cell owner)—

(a) holds an equity participation in a specific class or type of shares of an insurer, which equity participation is administered and accounted for separately from other classes or types of shares;

(b) is entitled to a share of the profits and liable for a share of the losses as a result of the equity participation referred to in paragraph (a), linked to profits or losses generated by the insurance business referred to in paragraph (c); and

(c) places insurance business with the insurer referred to in paragraph (a), which business is contractually ring-fenced from the other insurance business of that insurer for as long as the insurer is not in winding-up.

3.20 General principles for determining remuneration for binder functions

(1) When remuneration is provided by or on behalf of an insurer to any person for rendering a binder function—

(a) such remuneration must be reasonable and commensurate with the actual cost of performing the binder function, taking into account the nature of the function and the resources, skills and competencies reasonably required to perform it;

(b) the payment of such remuneration must not result in the person being remunerated more than once for performing a similar function on behalf of the insurer and/or policyholder;

(c) any actual or potential conflicts between the interests of policyholders and the interests of the person receiving the remuneration must be effectively mitigated; and

(d) the payment of such remuneration must not impede the delivery of fair outcomes to policyholders.

3.21 Remuneration that may be offered or provided to a binder holder

(1) An insurer may pay a binder holder a fee for services rendered under a binder agreement, if the fee is consistent with the principles referred to in regulation 3.20(1).

(2) Despite subregulatlon (1), an insurer must not without the prior approval of the Registrar referred to in subregulation (3) pay a binder holder a fee for services rendered under a binder agreement that exceeds the value listed in the Table below, reflected as a percentage of the aggregate of the total premiums payable by policyholders in respect of the policies to which the binder function relates, if that binder holder is—

(a) a non-mandated intermediary that is authorised to render “advice” as defined in the FAIS Act in respect of policies;

(b) a non-mandated intermediary that is an associate of another non-mandated intermediary that is authorised to render “advice” as defined in the FAIS Act in respect of policies.

Table

(3) The Registrar, subject to such conditions as the Registrar may impose, may on application from an insurer grant approval to the insurer to pay a binder holder a fee in excess of the fees referred to in subregulation (2) if the Registrar is satisfied that the fee is consistent with the principles referred to in regulation 3.20.

(4) Any fee referred to under subregulation (1) payable to a non-mandated intermediary that may perform the service or function contemplated in section 49A(1)(e) of the Act under a binder agreement, may not constitute or be based on a percentage of the difference between an amount claimed or the maximum value of policy benefits payable under a policy and the policy benefits actually provided to a policyholder in settlement of a claim.

(5) Any fee referred to under this regulation 3.21, payable to a non-mandated intermediary that is a binder holder, must be disclosed to a policyholder, which disclosure must be included in the disclosures contemplated under regulation 6.2(1)(g).

3.22 Participation by a binder holder in profits attributable to the policies referred to in a binder agreement

(1) A non-mandated intermediary that is a binder holder, in respect of the services rendered under the binder agreement, may not directly or indirectly receive or be offered any share in the profits of the insurer attributable to the type or kind of policies referred to in the binder agreement.

(2) Subregulation (1) does not prohibit a non-mandated intermediary that is a binder holder and entered into a cell structure with an insurer from receiving dividends in respect of shares held in that insurer as part of that cell structure.

(3) An administrative FSP or underwriting manager, in respect of the services rendered under the binder agreement, may share in the profits of the insurer attributable to the type or kind of policies referred to in the binder agreement.

[Part 3C ins by reg 4(bb) of GoN R1437 in G. 41334.]

PART 3D
NOTIFICATION OF CERTAIN ARRANGEMENTS WITH INDEPENDENT INTERMEDIARIES OR REPRESENTATIVES

3.23 Definitions

In this Part 3D—

"binder function" has the meaning assigned to it in Part 6; and

"independent intermediary", "representative" and “rendering services as intermediary” has the meaning assigned to such terms in Part 3A.

3.24 Notification of certain arrangements with independent intermediaries or representatives

An Insurer must at least 30 days before entering into an arrangement to pay remuneration to an independent intermediary or representative for a service, function or activity which in the opinion of the insurer does not constitute rendering services as intermediary or a binder function notify the Registrar in writing and in the format determined by the Registrar of the arrangement to be entered into.

[Part 3D ins by reg 4(cc) of GoN R1437 in G. 41334.]

PART 4

LIMITATION ON PROVISIONS OF CERTAIN POLICIES

(Section 54)

4.1 Definitions

In this Part—

“excess premium” means a premium which is received by, or which becomes due to, a long-term insurer during a premium period, and which—

(a) by itself exceeds;

(b) when aggregated with all premiums already received, and still to be received, during that premium period, exceeds; or

(c) is the first of increased recurrent premiums which, if it had been received by the long-term insurer at that increased rate during that premium period, would have caused the total value of the premiums received by the long-term insurer during that premium period to exceed,

by a rate of more than 20 per cent, the higher of the total value of the premiums received by the long-term insurer during any one of the two premium periods immediately preceding that premium period: Provided that if a premium is increased during the second premium period, the percentage increase shall be determined in relation to the first premium period only;

[“excess premium” subs by reg 5(a) of GoN R1437 in G. 41334.]

“extended restriction period” means a restriction period—

(a) which has not expired;

(b) which includes every earlier restriction period any part of which runs concurrently with it; and

(c) the commencement date of which, from time to time, is the commencement date of the earliest restriction period which runs concurrently with it;

“free surrender value” means the value of the consideration which the long-term insurer would provide if the policy is surrendered on the day preceding the date of commencement of an extended restriction period;

“fund member policy” means a long-term policy other than a fund policy—

(a) of which a fund is the sole policyholder;

(b) under which a specified member of the fund (or the surviving spouse, child, dependant or nominee of the member) is the life insured; and

(c) which is entered into by the fund for the purpose of exclusively funding the fund’s liability to that member (or the surviving spouse, children, dependants or nominees of the member) in terms of the rules of the fund;

[“fund member policy” subs by reg 5(b) of GoN R1437 in G. 41334.]

“linked benefit” means a policy benefit, the value of which is not guaranteed by the long-term insurer and is determined solely by reference to the value of particular assets or particular categories of assets which are specified in the policy and which are actually held by or on behalf of the long-term insurer specifically for the purpose of the policy;

“policy” means a long-term policy, whether entered into before or after the commencement of this Act, excluding—

(a) a reinsurance policy;

(b) a fund policy;

(c) a fund member policy, for as long as no right under the policy is transferred by the fund to a life insured under the policy, or is transferred to any person except another fund for the direct or indirect benefit of a life insured under the policy; or

(d) a living annuity as defined in section 1 of the Income Tax Act, 1962 (Act 58 of 1962);

[“policy” subs by reg 5(c) of GoN R1437 in G. 41334.]

“policy benefit” means one or more sums of money, services or other benefits, including an annuity, but excluding a loan in respect of a policy or consideration upon the surrender of a policy;

“premium” means the premium which is stipulated in the policy, or otherwise agreed upon between the parties to the policy, to be provided to the long-term insurer, including any part of a premium;

“premium period” means one of a succession of periods, each of 12 months’ duration, the first of which begins on, and ends 12 months after, the first day of the month in which the first premium, or any part thereof, is received by the long-term insurer or, if it is a later date, the first day of the month in which the undertaking of the long-term insurer to provide policy benefits under the policy, becomes operative;

“restricted amount” means an amount equal to—

(a) the aggregate of the free surrender value, and the total value of the premiums received by the long-term insurer during the extended restriction period concerned, plus interest on the free surrender value and each premium at the rate of five per cent per annum compounded annually; less

(b) the aggregate of all payments already made by the long-term insurer in respect of the policy, whether as a policy benefit (other than a policy benefit referred to in subregulation (2) of regulation 4.2) or upon the surrender of any part of the policy, during the extended restriction period concerned, plus interest on each payment at five per cent per annum compounded annually;

“restriction period”, means a period of five years which commences, if the date concerned is 1 January 1994 or later—

(a) on the date when the first premium period begins; or

(b) during a premium period after the first such period, on the first day of the month in which an excess premium is received by the insurer.

4.1A Application of this Part

(1) This Part does not apply to a policy that is a tax free investment contemplated in section 12T of the Income Tax Act, 1962 (Act 58 of 1962).

[Reg 4.1A ins by reg 2 of GoN R170 in G. 38507.]

4.2 Limitations on policies

(1) Subject to subregulations (2), (3), (4) and (5), a long-term insurer, and any person who acts as intermediary between a long-term insurer and any person in respect of a policy or proposal for a policy, shall not undertake to provide, or provide—

(a) a policy benefit under a policy during an extended restriction period;

(b) upon the full or partial surrender of a policy during an extended restriction period—

(i) if the policy has previously been partially surrendered during the extended restriction period concerned, any further consideration; or

(ii) if the policy has not been previously partially surrendered during the extended restriction period concerned, any consideration the value of which exceeds the restricted amount less the capital (excluding capitalised interest) of a loan already provided in respect of the policy during that extended restriction period:

Provided that where the policy is fully surrendered and the full value of the consideration to be provided thereupon exceeds the amount thus determined by not more than R10 000 the full consideration may be provided;

[Reg 4.2(1)(b) subs by reg 5(d) of GoN R1437 in G. 41334.]

(c) a loan under or on security of a policy during an extended restriction period—

(i) if such a loan has previously been provided in respect of the policy during the extended restriction period concerned; or

(ii) if such a loan has not previously been provided in respect of the policy during the extended restriction period concerned, the amount of which exceeds the restricted amount; or

(d) directly or indirectly, by means of one or more policies, during an extended restriction period, any benefit (whether as policy benefits or loans in respect of policies or consideration upon the surrender of policies, or any combination thereof) which achieves substantially the result that is achieved by an annuity, but which is not, and is not expressly stipulated in the policy or policies to be, an annuity.

(2) Subregulation (1)(a) shall not apply to a policy benefit which is to be provided and is provided under the policy upon—

(a) the life of a life insured having ended;

(b) the life of a life insured having begun;

(c) a health event occurring;

(d) a disability event occurring;

(e) loss of income occurring.

[Reg 4.2(2) subs by reg 5(e) of GoN R1437 in G. 41334.]

(3) Subparagraph (1)(a) shall not apply to a policy benefit which is an annuity—

(a) the payments of which are to be made, and are made, at intervals not exceeding 12 months;

(b) at least one of the payments of which is to be made and, except due to the prior death of the life insured, is made, within 31 days before the expiry of the extended restriction period concerned; and

(c) the total amount of the payments of which in any period of 12 months does not differ, by a rate of more than 20 per cent, from the total amount of the payments thereof in the immediately preceding period of 12 months, except in the case of an annuity—

(i) which constitutes a linked benefit, where the difference, during the period concerned, results solely from the determination of the value of the relevant assets;

(ii) payable in terms of a policy with two or more policyholders or lives insured and where the difference results solely from a reduction in the annuity payable during the period concerned consequent upon the death of one of those policyholders or lives insured; or

(iii) where the difference results solely from a reduction in the annuity payable during the period concerned consequent upon the surrender of a part of the policy.

(4) Subregulation (1) shall not apply in the event of—

(a) the death, placement under curatorship or sequestration of the estate of a policyholder who is a natural person; or

(b) the winding-up, liquidation, placement under curatorship or judicial management, by an order of Court, of a policyholder which is a juristic person.

(5) Subregulation (1)(c) and (d) shall not apply to a premium advance made under non-forfeiture provisions in a policy.

4.2A Maximum fees, penalties or any other charges on loans

(1) Where the terms of a loan on the security of a long-term policy provide for the charging of interest, at a stated fixed rate, whether simple or compound interest, an insurer may only apply such interest to the capital amount of the loan and not to any other cost or loss in respect of the loan.

(2) Where the terms of a loan on security of a long-term policy do not provide for the charging of interest, an insurer may not impose any fees, penalties or other charges in respect of the loan in excess of an amount equal to the maximum casual event charge that the insurer would have been permitted to charge if the capital amount of the loan had been the amount surrendered in terms of a casual event referred to in paragraph (d) or (f) of the definition of casual event in Part 5A.

[Reg 4.2A ins by reg 5(f) of GoN R1437 in G. 41334.]

4.3 General exclusion

This Part shall not apply in respect of anything done, before or after the commencement of this Part, in relation to a policy entered into before the commencement of this Part if, from a date prior to 1 March 1993, the policy expressly provided, in writing, for it to be done.

PART 5

REQUIREMENTS AND LIMITATIONS REGARDING THE VALUES AND BENEFITS OF POLICIES

(Section 54)

PART 5A

POLICIES OTHER THAN POLICIES TO WHICH PART 5B APPLIES

[Heading ins by reg 2.1 of GoN R952 in G. 31395.]

5.1 Application of this Part 5A, and definitions

[Heading subs by reg 2.2(a) of GoN R952 in G. 31395.]

This Part 5A applies to policies other than policies to which Part 5B applies, and in this Part 5A, unless the context indicates otherwise—

[Para following the heading subs by reg 2.2(a) of GoN R952 in G. 31395.]

“actuarial basis”, in relation to a policy, means the underlying actuarial rules, specifications and formulae in terms of which the policy operates, which:

(a) in compliance with the Act, are approved by the statutory actuary of the insurer, in particular for the purposes of sections 46 and 52; and

(b) if and while the Insurance Act, 1943 applied to the policy, in compliance with that Act, were approved by the valuator of the insurer, in particular for the purposes of sections 34 and 62(2) of that Act;

“basic premium” means the premium, including a premium paid by virtue of a premium-waiver benefit, less charges (if any) deductible from the premium for rider-benefits;

“basic risk benefit” means a risk benefit for which the charge is determined periodically with reference to changes in factors pertaining to the risk, including but not limited to the age of the life insured, the amount of the risk cover, or the investment value of the policy, but excluding a rider-benefit;

“benefit” means a policy benefit, including a consideration payable upon the full or partial surrender of a policy, but excluding a loan in respect of a policy;

“causal event”, in relation to a policy, means one of the following events—

(a) the policy becomes fully paid-up;

(b) the basic premium is reduced, without the policy thereby coming to an end or becoming fully paid-up;

(c) the remaining policy term or the remaining premium-paying term is reduced, without the policy thereby coming to an end or becoming fully paid-up;

(d) the policy is surrendered in part, other than for the purpose of a transfer from one fund to another in terms of section 14 of the Pension Funds Act, 1956, or a part of the policy comes to an end for another reason (other than because risk cover under the policy has come to an end);

(e) the policy, in the case of a fund member policy, is surrendered in part for the purpose of a transfer from one fund to another in terms of section 14 of the Pension Funds Act, 1956;

(f) the policy is surrendered in full, other than for the purpose of a transfer from one fund to another in terms of section 14 of the Pension Funds Act, 1956, or the policy comes to an end for another reason (other than because the policy has reached its maturity date); or

(g) the policy, in the case of a fund member policy, is surrendered in full for the purpose of a transfer from one fund to another in terms of section 14 of the Pension Funds Act, 1956;

“causal event charge” means a charge other than an administration charge contemplated in regulation 5.4A, occasioned by and pertaining to a causal event;

[“casual event charge” subs by reg 6(a) of GoN R1437 in G. 41334.]

“charge” means a charge stipulated in a policy or its actuarial basis, whether or not the actuarial basis has been expressly incorporated in the policy, which charge is deductible in respect of the policy in accordance with its terms or actuarial basis;

“come to an end” means that the final benefit under a policy has become payable, including in the case of a fund member policy for the purpose of a transfer from one fund to another in terms of section 14 of the Pension Funds Act, 1956, or that the policy has lapsed without a benefit becoming payable;

"component” has the meaning assigned in Part 3A;

[“component” ins by reg 6(b) of GoN R1437 in G. 41334.]

“dependant” has the meaning assigned in section 1 of the Pension Funds Act, 1956;

“effective date” means 1 December 2006;

“excluded policy” means—

(a) a fund policy;

(b) a reinsurance policy;

(c) a policy that provides risk benefits only;

(d) a whole-life policy that provides risk benefits and has an investment value or a materially equivalent value referred to in regulation 5.2(2)(b), and in respect of which policy, immediately before a causal event, the ratio of the aggregate of the sums insured of all basic risk benefits to the monthly basic premium (or the monthly equivalent where recurring premiums are not paid monthly) is greater than the threshold ratio in the table below:

(e) and any other policy that provides primarily risk benefits;

“fund member policy” means a policy—

(a) of which a fund is or was the policyholder; and

(b) which is or was entered into by the fund for the purpose of funding exclusively the fund’s liability to a particular member (or to the surviving spouse, children, dependants or nominees of the member) in terms of the rules of the fund;

“growth rate” means, over a given period, the positive or negative investment return declared for a portfolio, which investment return is net of those portfolio charges that are deducted before the declaration of the investment return, and in the case where a bonus is declared is inclusive of vested and non-vested bonuses;

“insurer”...

[“insurer” rep by reg 6(c) of GoN R1437 in G. 41334.]

“investment value” means the value of a policy—

(a) calculated using a method commonly referred to as a back-end loaded basis, by accumulating the basic premium less deductions at the growth rate that applies to the policy, which deductions comprise—

(i) benefits paid, excluding basic risk benefits and rider-benefits;

(ii) charges for basic risk benefits;

(iii) charges deducted when benefits are paid or the policy is altered;

(iv) charges stipulated as a fixed amount, which amount, over the full term of the policy, is designed to remain unchanged or is designed to be increased at a specified rate at regular intervals;

(v) charges stipulated as a percentage or proportion of premiums, which percentage or proportion is designed to remain unchanged over the full term of the policy; and

(vi) those portfolio charges that are deducted after the declaration of the growth rate, where, in the case of general portfolio charges deducted after the declaration of the growth rate, their percentage or proportion of the value of the portfolio is designed to remain unchanged over the full term of the policy;

provided that in determining the growth rate to be applied for the purposes of this calculation, the percentage or proportion of the value of the portfolio for general portfolio charges that are deducted before the declaration of the growth rate, is designed to remain unchanged over the full term of the policy; and

(b) adjusted, where the growth rate that applies to the policy does not follow the fluctuation in the value of the portfolio on a daily basis, and where that is required by the terms or actuarial basis of the policy, by a market-adjustment factor to take into account the difference between the value of the policy so calculated and the value of the portfolio;

“member”, in relation to a fund member policy, means the member of the fund in respect of whom the fund had or has taken out the policy;

“nominee”, in relation to a member, means a nominee of the member contemplated in the rules of the fund;

“policy” means a long-term policy, whether entered into before or after the commencement of the Act;

“portfolio” means the one or more investment funds representing the underlying assets of a policy;

“portfolio charges” means charges deducted from a portfolio, being—

(a) “specific portfolio charges”, namely charges for specific expenses, which expenses include but are not limited to taxes, statutory levies, investment expenses (including investment performance fees), and investment guarantees; and

(b) “general portfolio charges”, namely management charges, capital charges and other stipulated general charges, which general portfolio charges are stipulated as a percentage or proportion of the value of the portfolio;

“rider-benefit” means a risk benefit for which the charge is a certain amount or a percentage of the premium or is otherwise fixed, which risk benefit excludes a basic risk benefit;

“this Part” means this Part 5A;

[“this Part” subs by reg 2.2(b) of GoN R952 in G. 31395.]

"universal whole of life policy” means a policy other than a fund member policy that is a whole-life policy that is not an excluded policy and—

(a) that provides risk benefits and has an investment value or a materially equivalent value referred to in regulation 5.2(2)(b); and

(b) in respect of which the underlying actuarial basis of the policy, whether or not the actuarial basis has been expressly incorporated in the policy, provides that, at inception of the policy, less than 40% of the total premium payable by the policyholder over the expected lifetime of the policy will be allocated towards the investment benefits;

[“universal whole of life policy” ins by reg 6(d) of GoN R1437 in G. 41334.]

“values” means all values of a policy including, but not limited to, its investment value, its remaining value and other values contemplated in section 52(2), and its maturity value;

[“values” am by reg 6(e) of GoN R1437 in G. 41334.]

“variable premium increase” means an increase in an existing recurring premium payable by a policyholder under a policy, which increase is not a regular contractual premium increase provided for and determinable in the policy at the start of that policy.

[“variable premium increase” ins by reg 6(f) of GoN R1437 in G. 41334.]

5.2 Basis for determination of values and benefits of policies

(1) The values and benefits of a policy, and charges in respect of the policy, are determined, over the full term of the policy, in accordance with its terms and its underlying actuarial basis, whether or not the actuarial basis has been expressly incorporated in the policy.

(2) Notwithstanding anything to the contrary in the terms or actuarial basis of a policy which is not an excluded policy, and in respect of which a causal event has occurred on or after 1 January 2001, but subject to regulation 4.2—

(a) where the terms or actuarial basis of that policy make provision for the calculation of an investment value as described in the definition “investment value”, regulations 5.3 to 5.6 apply to that policy; or

(b) where the terms or actuarial basis of that policy do not make provision for the calculation of an investment value as described in the definition “investment value”, the values or benefits of that policy upon or immediately after the causal event must be, as certified by the insurer’s statutory actuary, materially equivalent to such values or benefits as determined in accordance with regulations 5.3 to 5.6 for a policy contemplated in paragraph (a).

5.3 Fund member policies

(1) Where a causal event occurred in respect of a fund member policy on or after 1 January 2001, but before the effective date, and the insurer on account of that causal event deducted causal event charges which in total exceed the maximum prescribed in subregulation (2), the insurer must—

(a) if the policy has not come to an end before the effective date, within six months after the effective date credit the policy with the amount by which the total causal event charges deducted exceed the prescribed maximum (“the excess amount”) plus interest on the excess amount calculated in accordance with regulation 5.5; or

(b) if the policy has come to an end before the effective date, and if the amount by which the total causal event charges deducted exceed the prescribed maximum (“the excess amount”) is R150 or more, upon the written request of the member, or in the case of a deceased member upon the written request of the dependants or nominees of the member, which request in every case must be received by the insurer within three years after the effective date, within six months after having received the written request pay the excess amount plus interest on the excess amount calculated in accordance with regulation 5.6, less any tax that must be deducted, to the member or to the dependants or nominees of a deceased member.

(2) The maximum deductible charges for purposes of subregulation (1) are—

(a) where the causal event is one contemplated in paragraph (a), (c), (f) or (g) of the definition “causal event”, 35% of the investment value immediately before the causal event;

(b) where the causal event is one contemplated in paragraph (b) of the definition “causal event”, a percentage of the investment value immediately before the causal event equal to 35% multiplied by the amount by which the basic premium has been reduced divided by the basic premium before it was reduced;

(c) where the causal event is one contemplated in paragraph (d) or (e) of the definition “causal event”, 35% of the amount by which the investment value immediately before the causal event has been reduced.

(3) Where a causal event occurs in respect of a fund member policy on or after the effective date, but before 1 January 2018, the insurer may not on account of that casual event deduct casual event charges which in total exceed the maximum prescribed in subregulation (4).

[Reg 5.3(3) subs by reg 6(g) of GoN R1437 in G. 41334.]

(4) The maximum deductible charges for purposes of subregulation (3) are—

(a) where the causal event is one contemplated in paragraph (a), (c), (f) or (g) of the definition “causal event”, 30% of the investment value immediately before the causal event;

(b) where the causal event is one contemplated in paragraph (b) of the definition “causal event”, a percentage of the investment value immediately before the causal event equal to 30% multiplied by the amount by which the basic premium has been reduced divided by the basic premium before it was reduced;

(c) where the causal event is one contemplated in paragraph (d) or (e) of the definition “causal event”, 30% of the amount by which the investment value immediately before the causal event has been reduced.

(5) Where a casual event occurs in respect of a fund member policy during a period referred to in column 1 of Table A below, the insurer may not on account of that casual event deduct casual event charges which in total exceed the maximum percentage set out in the corresponding line in column 2 of Table A below.

[Reg 5.3(5) ins by reg 6(h) of GoN R1437 in G. 41334.]

5.4 Policies other than fund member policies

(1)

(a) Where a causal event occurred in respect of a policy other than a fund member policy on or after 1 January 2001, but before the effective date, and the insurer on account of that casual event deducted causal event charges which in total exceed the maximum prescribed in subregulation (2), the insurer must, if the policy has not come to an end before the effective date, within six months after the effective date credit the policy with the amount by which the total causal event charges deducted exceed the prescribed maximum (“the excess amount”) plus interest on the excess amount calculated in accordance with regulation 5.5.

(b) Despite paragraph (a), where a policy other than a fund member policy has come to an end before the effective date, no maximum is prescribed with regard to the deduction of causal event charges on account of a causal event.

(2) The maximum deductible charges for purposes of subregulation (1) are—

(a) where the causal event is one contemplated in paragraph (a) or (c) of the definition “causal event”, 35% of the investment value immediately before the causal event;

(b) where the causal event is one contemplated in paragraph (b) of the definition “causal event”, a percentage of the investment value immediately before the causal event equal to 35% multiplied by the amount by which the basic premium has been reduced divided by the basic premium before it was reduced;

(c) No maximum is prescribed with regard to the deduction of causal event charges on account of a causal event contemplated in paragraph (d) or (f) of the definition “causal event”.

(3) Where a causal event occurs in respect of a policy other than a fund member policy on or after the effective date but before 1 January 2018, the insurer may not on account of that causal event deduct causal event charges which in total exceed the maximum prescribed in subregulation (4).

[Reg 5.4(3) subs by reg 6(i) of GoN R1437 in G. 41334.]

(4) The maximum deductible charges for purposes of subregulation (3) are—

(a) where the causal event is one contemplated in paragraph (a) or (c) of the definition “causal event”, 30% of the investment value immediately before the causal event;

(b) where the causal event is one contemplated in paragraph (b) of the definition “causal event”, a percentage of the investment value immediately before the causal event equal to 30% multiplied by the amount by which the basic premium has been reduced divided by the basic premium before it was reduced;

(c) where the causal event is one contemplated in paragraph (d) of the definition “causal event”, 40% of the amount by which the investment value immediately before the causal event has been reduced;

(d) where the causal event is one contemplated in paragraph (f) of the definition “causal event”, 40% of the investment value immediately before the causal event.

(5) Where a causal event occurs in respect of a policy other than a fund member policy, but that is not a universal whole of life policy, during a period referred to in column 1 of Table A below, the insurer may not on account of that causal event deduct causal event charges which in total exceed the maximum percentage set out in the corresponding line in column 2 of Table A below.

[Reg 5.4(5) ins by reg 6(j) of GoN R1437 in G. 41334.]

(6) Where a casual event occurs in respect of a universal whole of life policy during a period referred to in column 1 of Table A below, the insurer may not on account of that casual event charges which in total exceed the maximum percentage set out in the corresponding line in column 2 of Table A below.

[Reg 5.4(5) ins by reg 6(j) of GoN R1437 in G. 41334.]

5.4A Deduction of administration charge

(1) The insurer may, in addition to causal event charges, deduct in respect of any causal event taking place after 31 December 2017, either during or after the charge term, an administration charge of not more than R500.

(2) Despite paragraph (a), the administration charge must, if necessary, be reduced proportionally so that the investment value Immediately prior to the causal event, less the causal event charge and administration charge, is not smaller than 70% of the investment value immediately before the causal event.

[Reg 5.4A ins by reg 6(k) of GoN R1437 in G. 41334.]

5.5 Interest on the excess amount

The interest on the excess amount contemplated in regulations 5.3(1)(a) and 5.4(1)(a) is—

(a) calculated from and including the date the excess amount was deducted, to but excluding the date it is credited to the policy; and

(b) at an annual interest rate equal to the growth rate (net of those portfolio charges that are deducted after the declaration of the growth rate) over this period, which annual interest rate is subject to a maximum effective rate of 10% and a minimum effective rate of 0%.

5.6 The interest on the excess amount contemplated in regulation 5.3(1)(b) is—

(a) calculated from and including the date the causal event occurred, to but excluding the date the excess amount is paid to the member or to the dependants or nominees of a deceased member;

(b) for the period from the date the causal event occurred, to and including the date the policy came to an end, at an annual interest rate equal to the growth rate (net of those portfolio charges that are deducted after the declaration of the growth rate) over this period, which annual interest rate is subject to a maximum effective rate of 10% and a minimum effective rate of 0%; and

(c) for the period from and excluding the date the policy came to an end, to but excluding the date the excess amount is paid, at an annual effective rate of 5%.

5.7 ...

[Reg 5.7 rep by reg 6(l) of GoN R1437 in G. 41334.]

5.8 Amendments to actuarial basis and values

(1) An insurer must, before giving effect to an amendment made to the actuarial basis of a policy, where that amendment will have the effect of reducing the values or benefits of that policy, inform the Registrar of the amendment. The insurer must also provide the reasons for the amendment.

(2) The Registrar may, if he or she is of the opinion that an amendment contemplated in subregulation (1) was affected to directly or indirectly reduce the impact on the insurer of complying with this Part, direct the insurer to review that amendment.

(3) An insurer must keep a record of amendments contemplated in subregulation (1), which record must be made available to the Registrar on request.

[Reg 5.8 subs by reg 6(m) of GoN R1437 in G. 41334.]

5.9 Variable premium increases in respect of policies to which this Part applies

Despite anything contained in this Part or the regulations, any variable premium increase on or after 1 January 2018 in respect of—

(a) a policy other than a universal whole of life policy to which this Part applies;

(b) the investment component of a universal whole of life policy,

is subject to Part 3B and Part 5B ad must be regarded as constituting a separate policy for purposes of the application of those Parts.

[Part 5 subs by reg 1 of GoN R1218 in G. 29446; effectually renumbered as Part 5A by GoN R952 in G. 31395; reg 5.9 subs by reg reg 6(n) of GoN R1437 in G. 41334.]

PART 5B

INVESTMENT POLICIES THAT STARTED ON OR AFTER 1 JANUARY 2009

5.10 Application of this Part 5B, and definitions

This Part 5B applies to investment policies that started on or after 1 January 2009, and unless defined differently in this Part 5B or unless the context indicates otherwise, any word or expression to which a meaning has been assigned in Part 5A has the meaning assigned to it in that Part, and—

“causal event charge” means a charge, other than an administration charge contemplated in regulation 5.12(3), occasioned by and pertaining to a causal event;

“charge” means a charge stipulated in a policy, which charge is deductible in respect of that policy in accordance with its terms and its actuarial basis;

“charge percentage”, in relation to an investment policy, means 15% reduced on a straight-line basis to 0% over the charge term;

“charge term” means the term during which the insurer may deduct a causal event charge, which term starts on the premium commencement date and is equal to—

(a) in the case of a single premium policy the shorter of—

(i) five years; or

(ii) the period until the date on which the policy will reach maturity;

(b) in the case of a multiple premium policy—

(i) 10 years, if the premium term is 20 years or longer;

(ii) half of the premium term, if the premium term is 10 years or longer but shorter than 20 years;

(iii) five years, if the premium term is five years or longer but shorter than 10 years; or

(iv) the premium term, if the premium term is shorter than five years;

“excluded policy” means a policy contemplated in paragraphs (a), (b), (c) and (d) of the definition “excluded policy” in Part 5A;

“investment policy” means a single premium policy or a multiple premium policy, other than an excluded policy;

“payment date”, in relation to a premium, means the date on which that premium must be paid in terms of the policy;

“premium commencement date” means the payment date of the only or first premium;

“premium term”, in relation to a multiple premium policy, means the shorter of the following periods—

(a) the period for which the premiums are to be paid in terms of the policy - which period, as at the start of the policy, is specified in the policy or is determinable from its written provisions; or

(b) the period for which the premiums are to be paid before a policy benefit is to be provided - excluding where the policy benefit is to be provided on account of a disability event, a health event or the death of a life insured; or

(c) the period for which the premiums are to be paid before a consideration must or may be paid upon the full or partial surrender of the policy - if the amount of the consideration, as at the start of the policy, is specified in the policy or is determinable from its written provisions; or

(d) the longest of the following periods—

(i) 10 years; or

(ii) in the case of a fund member policy- the number of full years from the start of the policy to the 66th birthday of the life insured; or

(iii) the number of full years from the start of the policy to the 75th birthday of the life insured;

“start”, in relation to a policy, means when the application for that policy is accepted by the insurer; and

“this Part” means this Part 5B.

5.11 Basis for determination of values and benefits of policies

(1) The values and benefits of an investment policy, and charges in respect of the policy, are determined, over the full term of the policy, in accordance with its terms, which terms must be in accordance with its actuarial basis.

(2) Notwithstanding anything to the contrary in the terms or actuarial basis of an investment policy, but subject to regulation 4.2, where a causal event has occurred in respect of that policy and that policy’s terms or actuarial basis do not make provision for the calculation of an investment value as described in the definition of “investment value” in Part 5A, the values or benefits of that policy upon or immediately after the causal event must be, as certified by the insurer’s statutory actuary, materially equivalent to such values or benefits as determined in accordance with regulation 5.12 for an investment policy of which the terms or actuarial basis do make provision for the calculation of an investment value as described in the definition “investment value”.

5.12 Maximum charges that may be deducted

(1) Where a causal event occurs in respect of an investment policy, the insurer may not on account of that causal event deduct causal event charges which in total exceed the maximum prescribed in subregulation (2).

(2) The maximum deductible charges for purposes of subregulation (1) are—

(a) where the causal event is one contemplated in paragraph (a), (c), (f) or (g) of the definition “causal event”, the charge percentage (15% or less) of the investment value immediately before the causal event;

(b) where the causal event is one contemplated in paragraph (b) of the definition “causal event”, a percentage of the investment value immediately before the causal event equal to the charge percentage (15% or less) multiplied by the amount by which the basic premium has been reduced divided by the basic premium before it was reduced;

(c) where the causal event is one contemplated in paragraph (d) or (e) of the definition “causal event”, the charge percentage (15% or less) of the amount by which the investment value immediately before the causal event has been reduced.

(3)

(a) The insurer may, in addition to causal event charges, deduct in respect of any causal event, either during or after the charge term, an administration charge of not more than R500.

[Reg 5.12(3)(a) subs by reg 6(o) of GoN R1437 in G. 41334.]

(b) Despite paragraph (a), the administration charge must, if necessary, be reduced proportionally so that the investment value immediately prior to the causal event, less the causal event charge and administration charge, is not smaller than 70% of the investment value immediately before the causal event.

5.13 Disclosure

(1) An insurer must ensure that—

(a) when an investment policy is applied for, the prospective policyholder or member is within 30 days from the date of application provided in writing with the information referred to in subregulation (2);

(b) the summary to be provided to the policyholder or member in accordance with section 48 of the Act contains the information referred to in subregulation (2); and

(c) the policyholder or member is at least annually provided with the information referred to in subregulation (2) in writing, by telefax or any appropriate electronic communication reducible to printed form.

(2) The information for purposes of subregulation (1) is—

(a) a summary of the content of the provisions of this Part to the extent that those provisions may be or may become applicable to the policy;

(b) an explanation of what constitutes a causal event in respect of the policy in question;

(c) a statement, expressed as a percentage and, where a Rand value amount is determinable, also as a Rand value amount, of the maximum causal event charges that may be deducted; and

(d) the administration charge that may be deducted when a causal event occurs.

[Part 5B ins by reg 2.3 of GoN R952 in G. 31395.]

PART 5C
PRINCIPLES FOR CALCULATION OF CAUSAL EVENT CHARGES

5.14 Definitions

In this Part 5C any word or expression to which a meaning has been assigned in Part 5A and Part 5B, depending on the context in which this Part 5C is applied, has the meaning assigned to it in Part 5A and Part 5B, respectively.

5.15 General principles for the calculation of causal event charges

(1) For purposes of compliance with Parts 5A and 5B, an insurer must consider all causal event charges that arose after 1 January 2001.

(2) When calculating causal event charges in respect of policies referred to in Part 5A and Part 5B, an insurer must—

(a) take into account the cumulative effect on a policy’s investment value of charges that have already been deducted in respect of previous causal events;

(b) on the occurrence of a second or subsequent causal event on a policy, determine the causal event charge for that second or subsequent event by taking into account the cumulative effect of that charge and all prior causal event charges on the policy's investment value;

(c) ensure that the cumulative effect of multiple causal event charges during the life of a policy does not result in the policy’s investment value at any time being reduced by a greater portion than would have been the case if, at the time of the first causal event, the maximum causal event charge has been deducted.

(3) For purposes of subregulation (2)(b), the calculation of the cumulative causal event charges and the impact on the policy's investment value may take into account the time value of money, but any simplification applied in the calculation methodology may not result in a reduced policy investment value.

(4) For purposes of subregulation (2)(c), the maximum causal event charge means the lower of—

(a) the highest charge the insurer applies to any one causal event for the type of policy concerned according to the insurer's actuarial basis; and

(b) the highest causal event charge, at the time of the first causal event, provided for in Part 5A, Part 5B or for the type of policy concerned.

(4) In applying the principles in subregulation (2), an insurer must apply the same method of calculation to all policies of the same type.

(5) An insurer must, where the actuarial basis provides for a charge percentage that is less than the maximum prescribed charges, apply the lesser percentage in calculating causal event charges and in determining their cumulative effect.

(6) An insurer must, prior to adjusting the actuarial basis for policies to ensure that these bases are not inconsistent with the minimum principles contained in this Part, inform the Registrar of the proposed amendment and the reasons therefore.

[Part 5C ins by reg 6(p) of GoN R1437 in G. 41334.]

PART 6

BINDER AGREEMENTS

6.1 Definitions and interpretation

In this Part 6, unless the context indicates otherwise—

“administrative FSP” has the meaning assigned to it in the Codes of conduct for administrative and discretionary FSPs published in Board Notice 79 of 8 August 2003, and amended from time to time, under the FAIS Act;

[“administrative FSP” subs by reg 7(a) of GoN R1437 in G. 41334.]

“associate”—

(a) has the meaning assigned to it in the General Code of Conduct; and

(b) in addition to paragraph (a), includes, in respect of a juristic person—

(i) another juristic person that has a significant owner or member of its governing body that is also a significant owner or member of the governing body of the first mentioned juristic person; and

(ii) another juristic person that has a person as a significant owner or member of its governing body who is an associate (within the meaning of paragraph (a)) of a significant owner or member of the governing body of the first mentioned juristic person;

[“associate” subs by reg 7(b) of GoN R1437 in G. 41334.]

“binder agreement” means an agreement contemplated in section 49A of the Act;

[“binder agreement” subs by reg 7(c) of GoN R1437 in G. 41334.]

“binder function” means any of the functions contemplated in section 49A(1)(a) to (e) of the Act;

[“binder function” ins by reg 7(d) of GoN R1437 in G. 41334.]

“binder holder” means a person with whom an insurer has concluded a binder agreement;

“enter into” means any act that results in an insurer becoming liable to provide policy benefits under a policy where the person performing the act may do so without the insurer becoming aware of the act until after the act has been performed;

“FAIS Act” means the Financial Advisory and Intermediary Services Act, 2002 (Act 37 of 2002);

[“FAIS Act” ins by reg 7(e) of GoN R1437 in G. 41334.]

“funeral and assistance policies” means one or more—

(a) life policy where the policy benefits relate only to services or costs associated with funerals; or

(b) assistance policy;

[“funeral and assistance policies” ins by reg 7(f) of GoN R1437 in G. 41334.]

“General Code of Conduct” means the General Code of Conduct for Authorised Financial Services Providers and Representatives as published in Board Notice 80 of 2003, and amended from time to time, under section 15 of the FAIS Act;

[“General Code of Conduct” ins by reg 7(g) of GoN R1437 in G. 41334.]

“governing body” means a person or body of persons, whether elected or not, that manages, controls, formulates the policy and strategy of the financial institution, directs its affairs or has the authority to exercise the powers and perform the functions of the financial institution, and includes—

(a) the general partners of an en commandite partnership or the partners of any other partnership;

(b) the members of a close corporation;

(c) the trustees of a trust; and

(d) the board of directors of a company;

[“governing body” ins by reg 7(h) of GoN R1437 in G. 41334.]

“independent intermediary” has the meaning assigned to it in regulation 3.1;

“insurer” ...

[“insurer” rep by reg 7(i) of GoN R1437 in G. 41334.]

“integration” means policy and policyholder data is in a format that is readily recognisable and capable of being meaningfully utilised immediately by the core insurance systems and applications of the insurer;

[“integration” ins by reg 7(j) of GoN R1437 in G. 41334.]

“inter-related” has the meaning assigned to in section 1 of the Companies Act;

[“inter-related” ins by reg 7(k) of GoN R1437 in G. 41334.]

“mandated intermediary” means an independent intermediary that holds a written mandate from a potential policyholder or policyholder that authorises that intermediary, without having to obtain the prior approval of that potential policyholder or policyholder, to perform any act, including termination, in relation to a policy, that legally binds that potential policyholder or policyholder, other than an act directed only at changing the underlying investment portfolio of a policy;

“non-mandated intermediary” means a representative or an independent intermediary, other than a mandated intermediary or an underwriting manager;

“policy” means a long-term policy other than a reinsurance policy;

[“policy” subs by reg 7(l) of GoN R1437 in G. 41334.]

“qualifying stake” means in respect of a person that—

(a) is a company, that another person, directly or indirectly, alone or together with a related or inter-related person—

(i) holds at least 15% of the issued shares of the first mentioned person;

(ii) has the ability to exercise or control the exercise of at least 15% of the voting rights attached to securities of the first-mentioned person;

(iii) has the ability to dispose of or control the disposal of at least 15% of the first-mentioned person’s securities; or

(iv) holds rights in relation to the first-mentioned person that, if exercised, would result in that other person, directly or indirectly, alone or together with a related or inter-related person—

(aa) holding at least 15% of the securities of the first-mentioned person;

(bb) having the ability to exercise or control at least 15% of the voting rights attached to shares or other securities of the first-mentioned person; or

(cc) having the ability to dispose of or direct the disposal of at least 15% of the first-mentioned person's securities;

(b) is a close corporation, that another person, directly or indirectly, alone or together with a related or inter-related person, holds at least 15% of the members’ interests or controls, or has the right to control, at least 15% of members’ votes in the close corporation;

(c) is a trust, means that another person has, directly or indirectly, alone or together with a related or inter-related person—

(i) the ability to exercise or control the exercise of at least 15% of the votes of the trustees;

(ii) the power to appoint at least 15% of the trustees; or

(iii) the power to appoint or change any beneficiaries of the trust;

[“qualifying stake” ins by reg 7(m) of GoN R1437 in G. 41334.]

“related” has the meaning assigned to in section 1 of the Companies Act;

[“related” ins by reg 7(n) of GoN R1437 in G. 41334.]

“renew” means any act that results in the renewal or reinstatement of an insurer’s liability to provide policy benefits under a policy where the person performing the act may do so without the insurer becoming aware of the act until after the act has been performed;

“representative” has the meaning assigned to it in regulation 3.1, but excludes any natural person;

[“representative” subs by reg 7(o) of GoN R1437 in G. 41334.]

“settle a claim” means any act that results in—

(a) the acceptance of partial or full liability under a claim for policy benefits or a part thereof;

(b) the determination of the liability of an insurer under a claim for policy benefits; or

(c) the rejection of or refusal to pay a claim for policy benefits or a part thereof;

where the person performing the act may do so without the insurer becoming aware of the act until after the act has been performed;

“significant owner” means a person that, directly or indirectly, alone or together with a related or inter-related person, has the ability to control or influence materially the business or strategy of another person. A person has the ability referred to in that subsection if—

(a) the person, directly or indirectly, alone or together with a related or inter-related person, has the power to appoint 15% of the members of the governing body of the other person;

(b) the consent of the person, alone or together with a related or inter-related person, is required for the appointment of 15% of the members of a governing body of the other person; or

(c) the person, directly or indirectly, alone or together with a related or interrelated person, holds a qualifying stake in the other person;

[“significant owner” ins by reg 7(p) of GoN R1437 in G. 41334.]

“this Part” means this Part 6;

“underwriting manager” means a person that—

(a) performs one or more binder function; and

(b) if that person renders services as an intermediary as defined in Part 3A of the Regulations—

(i) does not perform any act directed towards entering into, maintaining or servicing a policy on behalf of an insurer, a potential policyholder or policyholder (including the performance of such an act in relation to a fund, a member of a fund and the agreement between the member and the fund); and

(ii) renders those services (other than the services referred to in paragraph (i) above) to or on behalf of an insurer only; and

(c) does not have any relationship with an insurer (including the secondment of that person's employees to an insurer or an associate of an insurer, the outsourcing of that person's infrastructure to an insurer or an associate of an insurer, or any similar arrangement) which may result in that person or its employees de facto, directly or indirectly, performing any act directed towards entering into, varying or renewing a policy on behalf of an insurer, a potential policyholder or policyholder; and

[“underwriting manager” subs by reg 7(q) of GoN R1437 in G. 41334.]

“vary” means any act that results in the variation, termination, repudiation or denial of an insurer’s liability to provide policy benefits under a policy where the person performing the act may do so without the insurer becoming aware of the act until after the act has been performed, and includes any act declaring a policy void.

6.2 Requirements, limitations and prohibitions relating to binder holders

(1) An insurer, subject to subregulations (1A) to (4) and regulation 6.5, may have a binder agreement with one or more of the following persons only—

(a) a non-mandated intermediary;

(b) an underwriting manager; or

(c) an administrative FSP.

(1A) An insurer may only enter into a binder agreement with a person referred to in subregulation (1) if the outsourcing of a binder function to that person—

(a) is intended to promote the delivery of fair outcomes to customers;

(b) would not result in a duplication of administrative efforts or costs for the insurer; and

(c) would not impede the insurer's ability to on an ongoing basis identify, assess, manage and report on the risks of poor customer outcomes potentially arising from the manner in which the insurer conducts its business.

(2) A non-mandated intermediary referred to under subregulation (1)(a) may not conduct any business with any mandated intermediary that is an associate of that non-mandated intermediary in relation to the same policy or policies of an insurer.

(3) An underwriting manager referred to under subregulation (1)(b) may not conduct any business with a mandated or non-mandated intermediary, or a representative of a mandated or non-mandated intermediary or an administrative FSP that is an associate of that underwriting manager in relation to the same policy or policies of an insurer.

(4)

(a) An underwriting manager referred to under subregulation (1)(b) who is a binder holder of one insurer cannot also be a binder holder of other insurers in respect of the same class of policies defined in section 1 of the Act, unless all the relevant insurers have agreed thereto in writing.

(b) Paragraph (a) does not apply if an underwriting manager enters into a binder agreement with an insurer during a termination period referred to in regulation 6.3(1)(s) in respect of a binder agreement with another insurer and that underwriting manager may not perform any binder functions on behalf of that other insurer during that termination period.

[Reg 6.2 subs by reg 7(r) of GoN R1437 in G. 41334.]

6.2A Governance and oversight requirements

(1) An insurer must before entering into a binder agreement and at all times thereafter—

(a) have the necessary resources and ability to exercise effective oversight over the binder holder on an ongoing basis, particularly in respect of identifying, assessing, managing and reporting on the risks of poor customer outcomes arising from conducting insurance business through binder agreements;

(b) satisfy itself of the adequacy of the binder holder's—

(i) governance, risk management and internal control framework, including the binder holder's ability to comply with applicable laws and the binder agreement; and

(ii) fitness and propriety, including any specific technical expertise required to perform the function to which the binder agreement relate;

(c) have documented controls in place to ensure the validity, accuracy, completeness and security of any information provided by the binder holder; and

(d) have appropriate contingency plans in place to address any shortcomings it may identify that could lead to it not being satisfied as to the matters provided for in paragraph (b), including where the binder holder is unable to provide the insurer with the relevant data in the appropriate format.

(2) An insurer must before entering into a binder agreement and at all times thereafter be satisfied that the binder holder has the operational ability to ensure integration between the information technology system of the insurer and the information technology system of the binder holder, which enables the insurer to have access to up-to-date, accurate and complete data held by the binder holder as and when requested by the insurer and as required in terms of the binder agreement and any other regulatory requirements relating to data management, including the requirements in the Policyholder Protection Rules.

(3) An insurer must regularly review and, where appropriate, act upon the information received from the binder holder to assess the appropriateness and suitability of the functions being performed in terms of the binder arrangement in delivering fair outcomes to policyholders on an ongoing basis.

[Reg 6.2A ins by reg 7(s) of GoN R1437 in G. 41334.]

6.3 Requirements, limitations and prohibitions relating to binder agreements

(1) A binder agreement must, in addition to those matters provided for under section 49A(2)—

(a) specify if the binder holder is a non-mandated intermediary, an underwriting manager or an administrative FSP;

(b) specify the duration of the agreement;

(c) specify the level and standard of service that must be rendered to a policyholder, where relevant, and to the insurer;

(d) require that the binder holder at all times is fit and proper, and has appropriate governance, risk management, internal controls and information technology systems in place to render the services under the binder agreement;

[Reg 6.3(1)(d) subs by reg 7(t) of GoN R1437 in G. 41334.]

(e) require that the binder holder comply with applicable laws;

(f) specify the Rand value of the remuneration or consideration contemplated under Part 3C payable by the insurer to the binder holder or if the Rand value is not fixed or determinable on entering into the agreement, the basis on which the remuneration or consideration payable will be calculated, in respect of each binder function performed under the binder agreement;

[Reg 6.3(1)(f) subs by reg 7(u) of GoN R1437 in G. 41334.]

(g) specify the disclosures that must be made and the information that must be provided to a policyholder, and the manner in which such disclosures or information must be made or provided when a binder holder—

(i) enters into, varies or renews a policy;

(ii) determines the wording of a policy;

(iii) determines premiums under a policy;

(iv) determines the value of policy benefits under a policy; or

(v) settles a claim under a policy;

(h) provide for the type and frequency of reporting by the binder holder on the services rendered under the binder agreement;

(i) provide for the manner in and the means by which an insurer will monitor the binder holder’s performance under and compliance with the binder agreement;

(j) provide for periodic performance reviews of the binder holder and the regular review of the binder agreement;

(k) specify that the insurer has a right to access any data held by the binder holder as and when such data is requested by the insurer;

[Reg 6.3(1)(k) subs by reg 7(v) of GoN R1437 in G. 41334.]

(l) address confidentiality, privacy and the security of information of the insurer and policyholders;

(m) address ownership of intellectual property;

(n) specify that the binder holder must take the necessary steps to allow the Registrar access to its business and information in respect of the functions performed under the agreement;

(o) include indemnity and liability provisions;

(p) require the binder holder to provide the insurer with access to up-to-date, accurate and complete data (in accordance with regulation 6.2A(2)) to ensure that the insurer is able to comply with any regulatory requirements provided for in the Policyholder Protection Rules, at the following intervals—

(i) daily, in respect of policies other than funeral and assistance policies;

(ii) monthly, in respect of funeral and assistance policies;

[Reg 6.3(1)(p) subs by reg 7(w) of GoN R1437 in G. 41334.]

(q) set out any warranties or guarantees to be furnished and insurance to be secured by the binder holder in respect of its ability to fulfil its contractual obligations;

(r) provide for a dispute resolution process;

(s) provide for a termination period, irrespective of the circumstances under which the agreement is terminated (including the lapsing or non-renewal of the agreement), of at least 90 days, that will allow—

(i) the binder holder and insurer to comply with any legislative requirements relating to the policies referred to in the binder agreement; and

(ii) for the transfer or sharing of all electronic and paper-based records in respect of the policies referred to in the binder agreement, including the names and identity numbers of all policyholders, insured persons and beneficiaries; and

(t) provide for business contingency processes, including the continuity of service if the binder holder is placed under curatorship, business rescue, becomes insolvent, is liquidated or is for any reason unable to continue to render the services in accordance with the binder agreement.

(2) Subregulation(1)(t) does not prohibit a binder agreement from providing that an insurer may—

(a) limit or prevent a binder holder from performing certain or all binder functions during the termination period; or

(b) take reasonable measures to limit any risks it may be exposed to resulting from or associated with a binder agreement or its termination.

(3)

(a) A binder agreement may only provide for matters referred to in section 49A of the Act, this Part and matters incidental thereto, and may not regulate any other arrangement or relationship with the binder holder, irrespective of such other arrangement or relationship being dependent on the conclusion of a binder agreement or that the binder agreement is in addition to or consequential to such other arrangement or relationship.

(b) A binder agreement may not prohibit an insurer from communicating directly with its policyholders or any independent intermediary.

(4) A binder agreement concluded with a non-mandated intermediary, in addition to the matters provided for under subregulation (1), must limit the discretion of the binder holder in respect of—

(a) the maximum value of policy benefits that may be determined under each policy or the maximum value of any claim that may be settled by the binder holder under the policies to which the binder agreement relates;

(b) the morbidity and mortality risk factors, where appropriate, that must be considered by the binder holder when entering into, varying or renewing a policy or determining the value of policy benefits under a policy;

(c) other parameters in accordance with which the binder holder must render the services provided for in the binder agreement; and

(d) any guarantee of policy benefits that may be provided for under an investment policy as defined in Part 3A of the Regulation.

(5) A binder agreement concluded with a non-mandated intermediary may not authorise the binder holder to—

(a) refuse to renew a policy;

(b) reject or refuse to pay a claim for policy benefits or a part thereof;

(c) terminate, repudiate or deny an insurer’s liability to provide policy benefits under a policy; or

(d) declare a policy void.

(6) An insurer must promptly take reasonable steps to rectify any non-adherence to a binder agreement.

[Reg 6.3(6) subs by reg 7(x) of GoN R1437 in G. 41334.]

(7) An insurer must retain a copy of a binder agreement for a period of at least five years from the date on which a binder agreement ls terminated.

[Reg 6.3(7) subs by reg 7(x) of GoN R1437 in G. 41334.]

6.4 ...

[Reg 6.4 rep by reg 7(y) of GoN R1437 in G. 41334.]

6.5 Exemption

Despite regulation 6.2(2) or (3), the Registrar may on application from an Insurer referred to in regulation 6.2(2) or (3) or an insurer that is the holding company or associate of more than one person referred to in regulation 6.2(2) or (3) exempt, subject to such conditions as the Registrar may impose, the insurer or such person from regulation 6.2(2) or (3), if the Registrar is satisfied that—

(a) any actual or potential conflict of interest is effectively mitigated;

(b) the delivery of fair outcomes to policyholders will not be impeded; and

(c) the person has the operational and financial capability to perform the binder function or to conduct such business.

[Reg 6.5 subs by reg 7(z) of GoN R1437 in G. 41334.]

6.6 Reporting requirements

(1) An insurer must, at least 30 days before entering into a binder agreement, notify the Registrar in writing and in the format determined by the Registrar of the Proposed binder agreement.

(2) An insurer must, at least 60 days before the expiry of the termination period referred to under regulation 6.3(1)(s), inform the Registrar in writing and in the format required by the Registrar—

(a) of the date on which the binder agreement will terminate;

(b) of the reasons for the termination of the binder agreement;

(c) how the policies to which the binder agreement relates will be dealt with;

(d) how any legislative requirements relating to the termination of the binder agreement or policies, if one or more policies to which the binder agreement relates will be terminated, will be complied with.

[Reg 6.6 subs by reg 7(aa) of GoN R1437 in G. 41334.]

6.7 ...

[Part 6 ins by reg 2 of GoN R1218 in G. 29446; subs by reg 2 of GoN R186 in G. 29681; am by reg 3 of GoN R952 in G. 31395; subs by reg 1 of GoN R1077 in G. 34877 wef 1 January 2012; reg 6.7 rep by reg 7(bb) of GoN R1437 in G. 41334.]

PART 8

TITLE AND COMMENCEMENT

8.1 These regulations are called the Regulations under the Long-term Insurance Act, 1998.

8.2 The amendments to the Regulations, subject to subregulation 8.3, take effect on 1 January 2018.

8.3 Despite regulation 8.2 the—

(a) repeal of the definition of “administrative work” in regulation 3.1 in part 3A takes effect 12 months after the effective date;

(b) insertion in Part 3A of regulation 3.9A takes effect 6 months after the effective;

(c) the amendment of item 5.2.2.1 and repeal of items 5.2.2.1.1 and 5.2.2.1.2 in the Table in Annexure 1 in Part 3A takes effect 12 months after the effective date;

(d) insertion of subregulations (2) and (3) in regulation 3.21 in Part 3C takes effect—

(i) on the effective date for binder agreements entered into on or after the effective date;

(ii) for binder agreements entered into after 1 January 2017 but before the effective date, the earliest of—

(aa) 6 months after the effective date; or

(bb) the date on which any amendment to binder fees payable under such binder agreement is made;

(e) insertion of subregulation (2) in regulation 6.2A in Part 6 takes effect 24 months after the effective date; and

(f) amendment to paragraph (p) in subregulation (1) in regulation 6.3 in Part 6 takes effect 24 months after the effective date.

[Part 7 ins by reg 2 of GoN R1077 in G. 34877; subs by reg 8 of GoN1437 in G. 41334.]

[Editor Note: GN R1437 in G. 41334, substitute part 8 whereas part 8 is absent. Part 7 in the principal regulation matches with Part 8 in the amending Regulations and amended accordingly.]

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