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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.
[Ch2703s7]7. Rules of a fund
(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.
[Ch2703s11]11. ...... 2 of 2007, s. 107