Pension And Provident Funds - Registration And Matters Incidental Thereto (Ss 4-11)

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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