Key Benefits:
PART II
Licensing and Matters Incidental thereto (ss 4-11)
[Ch2703s4]4. ...... 2 of 2007, s. 107
[Ch2703s5]5. Licensing of fund
(1) Any person who wishes to apply for the licensing of a fund shall submit to the Registrar–
(a) an application for a licence in the prescribed form; and
(b) if the application is for a licence, two copies of printed, duplicated or typed rules providing for the matters referred to in section 7.
(2) If, on receipt of an application in terms of subsection (1)-
(a) for licensing, after considering the application, the rules accompanying such application and such further information as he may require, the Registrar is satisfied that-
(i) the rules are not inconsistent with the provisions of this Act, and
(ii) the fund is or will be based on sound financial principles,
he shall license the fund;
(3)–(4) ...... 2 of 2007, s. 107
(5) The Registrar-
(a) may at any time return the rules submitted in terms of subsection (1) to the applicant for reconsideration or amendment;
(b) shall, on the licensing of a fund in terms of subsection (2)(a)-
(i) return to the fund a copy of the rules endorsed by him; and
(ii) issue to the fund a licensing certificate.
(6) ...... 2 of 2007, s. 107
[Ch2703s6]6. Effect of licensing of fund
(1) On licensing in terms of section 5(2)(a)-
(a) a fund shall, under the name by which it is so licensed, become a body corporate capable of suing and being sued in its corporate name and of doing all such things as may be necessary or incidental to the exercise of its powers or the performance of its functions in terms of its rules;
(b) all the assets, rights, liabilities and obligations pertaining to the business of the fund shall, notwithstanding anything to the contrary contained in any law or in the memorandum, articles of association, constitution or rules of any body, corporate or unincorporate, having control of the business of the fund, be deemed to be assets, rights, liabilities and obligations of the fund to the exclusion of any other person, and no person shall have any claim on the assets or rights or be responsible for any liabilities or obligations of the fund, except in so far as the claim has arisen or the responsibility has been incurred in connection with transactions relating to the business of the fund;
(c) the assets, rights, liabilities and obligations of the fund, including any assets held by any person in trust for the fund, as existing immediately before its licensing, shall vest in and devolve upon the fund without any formal transfer or cession.
(2) Every director, manager, controller and principal officer of a fund shall be under the same civil liability, in relation to the administration of the affairs of the fund, as if he had been a trustee under a trust for the administration of the fund and as if the members of the fund had been beneficiaries of such a trust, unless the director, manager, controller or principal officer proves that the act causing pecuniary loss to the fund was not done by him and that he had no knowledge of the intention to do such act and that the exercise of due diligence by him did not or would not have made him aware of it.
(1) The rules of a fund-
(a) shall state the name of the fund; and
(b) shall comply with such requirements as may be prescribed.
(2) Requirements prescribed for the purposes of subsection (1)(b) may relate to-
(a) the membership of the fund;
(b) the contributions to be paid to the fund, whether compulsory or otherwise;
(c) the benefits to be payable from the fund;
(d) the commutation of any pension;
(e) the appointment or election of trustees to administer the fund and their powers and duties;
(f) the dissolution of the fund, including the appointment and powers of a liquidator;
(g) the amendment or replacement of the rules.
(3) Subject to the provisions of this Act, the rules of a licensed fund shall be binding on-
(a) the fund; and
(b) any participating employer and the members and officers of the fund; and
(c) any person who claims under the rules or whose claim is derived from a person claiming under the rules of the fund.
[Ch2703s8]8. Amendment of rules of a fund
(1) Subject to the provisions of this section, the rules of a fund may be amended or repealed and replaced at any time in accordance with such procedure as is provided for in the rules:
Provided that no such amendment or replacement shall be valid until it has been approved by the Registrar and registered in terms of subsection (3).
(2) Where a resolution has been passed approving the amendment or replacement of the rules of a fund, the principal officer of a fund shall, within one month of the passing of the resolution, submit two copies thereof to the Registrar, together with-
(a) a certificate signed by the principal officer certifying that the rules of the fund applicable to the amendment or replacement have been complied with;
(b) a statement setting out the reasons for the amendment or replacement; and
(c) if the amendment or replacement affects the financial position of the fund, a certificate in connection with the financial soundness thereof by the actuary or, if the fund has no actuary, by the auditor.
(3) If the Registrar is satisfied that an amendment or replacement referred to in subsection (1) is not inconsistent with the provisions of this Act, he shall register such amendment or replacement and return to the principal officer of the fund a copy of the resolution with the date of registration endorsed thereon:
Provided that if any such amendment or replacement has the effect of reducing any benefit that has accrued to a member in respect of his service prior to the amendment or replacement, the Registrar may refuse to approve the amendment or replacement if he is of the opinion that it is unjust to any member or group of members or that it has not been approved by a majority of the members of the fund either in writing or at a meeting called for the purpose by the trustees administering the fund or the participating employers, as the case may be.
(4) If at any time the Registrar considers that the rules of a fund require to be amended for the purpose of ensuring compliance with the provisions of this Act, he shall direct the fund to effect such amendment within such period as he may specify and the fund shall comply with such direction.
[Ch2703s9]9. Conclusiveness of licensing certificate
A licensing certificate of a fund shall, upon its mere production, in the absence of proof of fraud, be conclusive evidence that all the requirements of this Act in respect of licencing and all matters precedent and incidental thereto have been complied with and that the fund is duly licensed.
[Ch2703s10]10. Dissolution of licensed fund
(1) Subject to the provisions of this section, a licensed fund-
(a) may be dissolved in accordance with the provisions of the rules of the fund; and
(b) shall be dissolved where so directed by the Registrar in terms of section 19.
(2) Where the Registrar has, in terms of section 19, directed that a licensed fund be dissolved, a liquidator approved by the Registrar shall be appointed in the manner provided in the rules of the fund and the following provisions shall apply-
(a) the liquidator, with the approval of the Registrar, shall determine the date of liquidation and the period of backdating, if any, for the purpose of including in the calculations in connection with the liquidation those members who during that period resigned or were discharged solely because of the impending winding-up or liquidation of the business operations of a participating employer and who shall be deemed to be members for the purposes of the liquidation;
(b) until the liquidation is completed, the provisions of this Act shall, as far as practicable, continue to apply to the fund as if the liquidator were the principal officer of the fund;
(c) the liquidator shall, as soon as possible, lodge with the Registrar a list of the assets and liabilities of the fund certified by him as correct and a scheme setting out the manner in which he proposes to realise the assets of the fund, to discharge the liabilities to persons other than members and beneficiaries and to meet the expenses of liquidation;
(d) the actuary shall submit to the liquidator a report showing the proportion of the amount available for distribution that the actuary recommends should be applied for the benefit of each beneficiary:
Provided that if the fund in terms of section 14 has not appointed an actuary the amount to be applied for the benefit of each beneficiary shall be determined by the liquidator;
(e) the liquidator shall submit the report in terms of paragraph (d) to the Registrar with his estimate of the total amount available for distribution and his recommendation as to the manner in which the amount to be applied for the benefit of each member or beneficiary should be applied;
(f) the documents submitted by the liquidator in terms of paragraph (e) shall lie open at the registered office of the fund for inspection by interested parties for a period of one month;
(g) the Registrar shall, at the expense of the fund, cause to be published in the Gazette and in a newspaper circulating in the district in which the registered office of the fund is situated a notice which-
(i) specifies the period during which and the places at which the documents referred to in paragraph (f) shall lie open for inspection in terms of that paragraph; and
(ii) calls upon every interested person who has any objection to the method of distribution recommended by the liquidator to lodge his objection in writing with the Registrar within such period as may be specified in the notice, being not less than one month from the last day on which the documents lie open for inspection;
(h) if no objection is lodged with the Registrar in terms of paragraph (g), he shall direct the liquidator to complete the liquidation in accordance with the scheme recommended;
(i) if any objection is lodged with the Registrar in terms of paragraph (g), the Registrar shall consider the objection and shall direct the liquidator to complete the liquidation in accordance with the scheme as recommended or as amended by the Registrar in such manner as he thinks fit after considering the objections received;
(j) the Registrar may give to the liquidator such directions relating to the liquidation as he thinks fit and such directions shall, subject to the provisions of paragraph (k), be binding upon the liquidator;
(k) within one month of receiving any direction from the Registrar in terms of paragraph (j), the liquidator shall post a copy thereof to every member, beneficiary and creditor of the fund and the liquidator or any person aggrieved by any such direction from the Registrar may apply by motion to the High Court within two months after the direction has been communicated to the liquidator for an order setting aside the direction or to make such other order as it thinks fit;
(l) the Registrar shall direct the liquidator to complete the liquidation in accordance with his directions in terms of paragraph (j) or with any court order in terms of paragraph (k), as the case may be;
(m) within one month after the completion of the liquidation of the fund, the liquidator shall lodge with the Registrar a final account signed and certified by him as correct showing the manner in which the assets of the fund have been realised and distributed;
(n) every claim against the fund shall be proved to the satisfaction of the liquidator, subject to a right of appeal to the High Court and the liquidator may require any claim to be made on affidavit.
