Financial Services Board Amendment Act [No. 12 of 2000]
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VOL. 4] 9 CAPE TOWN, 3 MAY 2000
UAPSTAD, 3 MEI 2000 No. 21141
THE PRES~ENCY
No. ti7. 3 Mei 2000
It is hereby notified that the President has assented to the following Act which is hereby published for general information:—
No. 12 of 2000: Financial Services Board Amendment Act, 2000.
DIE PRESIDENSIE
No. 447. 3 May 2000
Hierby word bekend gemaak dat die President sy goed- keuring geheg het am die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:—
No. 12 van 2m: Wysigingswet op die Raad op Finansiele Dienste, 2000.
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Act No. 12,2000 FINANCIAL SERVICES BOARD AMENDMENT ACT, 2000
GENERAL EXPLANATORY NOTE:
[ 1 Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President.) (Assented to 20 April 2000.)
ACT To amend the Financial Services Board Act, 1990, so as to insert a definition; to amend the provisions dealing with the functions of the Financial Services Board; to make further provision for the appointment of members of the Financial Services Board and its executive; to amend certain outdated provisions; to repeal the provision relating to the pension rights of certain officers and employees; to provide for consultation before the imposition of levies on financial institutions; to repeal the provision regarding the printing of the annual report; to make further provision for the provision of information and assistance to other regulatory authorities; to make further provision for the limitation of liability of certain functionaries, bodies and persons; to further regulate the prohibition on the use of a name or description implying a connection with the Financial Services Board; and to further regulate the constitution and functions of the board of appeal; and to provide for matters connected therewith.
B E IT ENACTED by Parliament of the Republic of South Africa, as follows:— Amendment of section 1 of Act 97 of 1990, as amended by section 1 of Act 41 of 1992, section 67 of Act 104 of 1993 and section 5 of Act 22 of 1997
1. Section 1 of the Financial Services Board Act, 1990 (hereinafter referred to as the 5 principal Act), is amended by the insertion after the definition of “Minister” of the following definition:
“ ‘supervision’, in relation to supervision by the board over the performance of functions by the executive officer in terms of any law, means— (a) the determination by the board that a particular function or category of 10
functions— (i) may not be performed by the executive officer without the prior
approval of the board; (ii) may be performed by the executive officer in accordance with
guidelines issued by the board: or 15 (iii) may be performed by the executive officer in his or her discretion;
and (b) the periodical reporting to the board by the executive oficer on the
performance of his or her functions at such a time and in such a manner as may be determined by the board, 20
and ‘supervise’ shall have a corresponding meaning:”.
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Act No. 12, 2000 FINANCIAL SERVICES BOARD AMENDklENT ACT, 2000
Substitution of section 3 of Act 97 of 1990
2. The following section is substituted for section 3 of the principal Act:
“Functions of board
3. The functions of the board are— (a)
(b)
(c)
to supervise the [exercise of control, in terms of any law, over the 5 activities oq compliance with laws regulating financial institutions [and over] and the provision of financial services; [and] to advise the Minister on matters concerning financial institutions and financial services, either of its own accord or at the request of the Minister; and 10 to promot~rogrammes and initiatives by financial institutions and bodies representing the financial services industry to inform and educate users and potential users of financial products and services.”.
Substitution of section 4 of Act 97 of 1990
3. The following section is substituted for section 4 of the principal Act: 15
“Constitution of board
4. (1) The board shall [consist o~, be governed by so many members as the [State President] Minister may deem necessary and appoint, with due regard to the interests of the users of financial services and the suppliers of financial services, including financial intermediaries, and the public 20 interest.
(2) The [State President] Minister may appoint an alternate member for every member of the board.
(3) The [State President] Minister shall appoint a member of the board as the [chairman] chairperson and another member as the deputy 25 [chairman] chairperson.
(4) If the [chairman] chairperson is absent or is for any reason unable to act as [chairman] chairperson the deputy [chairman] chairperson shall perform the functions of the [chairman] chairperson.”.
Amendment of section 5 of Act 97 of 1990, as amended by section 68 of Act 104 of 30 1993
4. Section 5 of the principal Act is amended by the substitution for paragraph (b) of the following paragraph:
“(b) if, in the opinion of the [State President] Minister, he or she is actually engaged in the business of a financial institution or actually engaged in the 35 rendering of a financial service: Provided that the [State President] Minister may, in consultation with the recognised association or organisation of the relevant financial institution or financial service in which such person is actually engaged, appoint a person who would otherwise be disqualified in terms of this paragraph from being a member of the board;”. 40
Amendment of section 6 of Act 97 of 1990
5. Section 6 of the principal Act is amended by the substitution for subsection (2) of the following subsection:
“(2) The [State President] Minister may at any time terminate the membership of any member or alternate member of the board if in the opinion of the [State 45 President] Minister sufficient reasons exist therefore,”.
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Act No. 12,2000 FINANCIAL SERVICES BOARD AMENDMENT ACT, 2000
Amendment of section 7 of Act 97 of 1990
6. Section 7 of the principal Act is amended by the substitution for subsection (1) of the following subsection:
“(1) A member or alternate member of the board shall hold office, subject to the provisions of section 6, for such period, not exceeding three years, as the [State 5 President] Minister may determine at the time of his or her appointment: Provided that—
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(a) the term of office of not more than 50 per cent of the members or alternate members of the board shall expire within any calendar yew, and
(b) if at the expiry of the term of office of a member or alternate member of the 10 board a successor has not been appointed as provided for in this subsection, such member or dtemate member shall continue in office for a further period not exceeding six months until reappointed or until a successor is appointed, whichever occurs first.”.
Amendment of section 9 of Act 97 of 1990, as amended by section 2 of Act 41 of 1992 15
7. Section 9 of the principal Act is amended by the substitution for subsection (4) of the following subsection:
“(4) The executive shall consist of the executive officer, the deputy executive officers, [and] the chief actuary and such other officers or employees of the board as the board may from time to time appoint to the executive, on such conditions as 20 it deems fit.”.
Amendment of section 10 of Act 97 of 1990
8. Section 10 of the principal Act is amended by the substitution for subsection (2) of the following subsection:
“(2) Such a committee shall consist of so many members of the board or so 25 many other persons or so many members or other persons as the board may deem necessary, and the board may at any time dissolve or reconstitute such a committee: Provided that the nomination and appointment of other persons to a committee of the board shall not cease upon the vacation of office of a member of the board who served on such a committee.”. 30
Amendment of section 13 of Act 97 of 1990, as amended by section 3 of Act 41 of 1992
9. Section 13 of the principal Act is amended by the substitution for paragraph (c) of subsection ( 1 ) of the following paragraph:
“(c) officers and employees placed at the disposal of the board under section 35 [14(3)(a)] 15(3)(a) of the Public Service Act, [1984 (Act No. 111 of 1984)] 1994 (Proclamation No. 103 of 1994).”.
Amendment of section 14 of Act 97 of 1990, as amended by section 1 of Act 84 of 1992
10. Section 14 of the principal Act is amended by the substitution for subsection ( 1 ) 40 of the following subsection:
“(1 ) The board may pay to the persons in its employ, or provide them with, such remuneration, allowances, bonuses, subsidies, pension and other employment benefits as the board may, after having obtained such professional advice as it may deem fit, consider as being competitive in the open market [for the manpower 45 concerned and may determine without being subject to any provisions of the Public Service Act, 1984 (Act No. 111 of 1984)] but with due regard to section 18(b).”.
Repeal of section 15 of Act 97 of 1990
11. Section 15 of the principal Act is repelled. 50
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Act No. 12, 2000 FINANCIAL SERVICES BOARD AMENDMENT ACT. 2000
Amendment of section 15A of Act 97 of 1990, as inserted by section 2 of Act 84 of 1992
12. Section 15A of the principal Act is amended— (a) by the insertion after subsection (1) of the following subsection:
“(1 A) (a) Before imposing levies referred to in subsection (1), the board must publish the proposed levies in such manner as it considers appropriate in order to bring the proposed levies to the attention of the financial institutions in Question and the users of financial services rendered by these institutions, together with a statement that representa- tions about the proposed levies may be made to the board within a specified time.
(b) Before imposing levies the board must have regard to any representations made in pursuance of the statement referred to in paragraph (a).
(c) Paragraphs (a) and (b) do not apply where the board, with the approval of the Minister. is of the opinion that the delay involved in complying with those paragraphs would be prejudicial to the functions of the board-in terms of secti~n 3((z) and (c).’:; aid
(b) by the substitution for paragraph (c) of subsection (4) of the following paragraph:
“(c) The board [may] shall before taking a decision contemplated in paragraph (b)(i), grant the financial institution concerned the opportunity deemed fit by the board to be heard.”.
Substitution of section 18 of Act 97 of 1990, as substituted by section 5 of Act 41 of 1992
13. The following section is substituted for section 18 of the principal Act:
“Consultation with Minister
18. The board and [the executive officer, deputy executive officers and chief actuary] members of the executive contemplated in section 9(4)— @ shall consult with the Minister [in] on any matter relating to the
exercise of such powers and the performance of such duties under this Act or any other law as the Minister may determine from time to time; [and the board and the executive officer shall directly] and
~ q consult with the Minister in connection with any [other] matter [it or he] which any of them wishes to bring to the attention of the Minister,”.
Amendment of section 21 of Act 97 of 1990, as amended by section 69 of Act 104 of 1993
14. Section 21 of the principal Act is amended by the deletion of subsection (3).
Amendment of section 22 of Act 97 of 1990, as amended by section 7 of Act 41 of 1992
15. Section 22 of the principal Act is amended by the substitution for subsection (2) of the following subsection:
“(2) Notwithstanding the provisions of subsection(1). the executive officer mav. unless he or she is of the opi~ion that any such disclosure or rendering of assistance will not be in the public interest, but subject to ~uidelines issued by the board— @ disclose to any foreign financial or investment services regulatory or
supervisory authority, or any other regulatory or supervisory authority for financial or investment services in the Republic, including the Registrar of Medical Schemes and a self-regulator! body approved by the board, information relating to a particular tinancial or other institution or financial or other service or a particular individual who is or was involved in a particular fintincial institution or tinancitil service. if the e~ecutive officer is of the opinion that [taking into consideration the public interest] such in fornla-
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Act No. 12, 2000 FINANCIAL SERVICES BOARD AMENDMENT ACT, 2000
tion will be of importance to the relevant [foreign financial services] regulatory or supervisory authority, Registrar of Medical Schemes or self-regulatory body; and disclose to any foreign financial or investment services regulatory or superviso~ authority any information required in terms of any agreement, 5 communique or memorandum of understanding concluded by the board or the executive officer with any such authority, and may render any assistance to such authoritv: I
Provided that the ~oard or the executive officer may impose conditions relating to the use that may be made of any information or assistance and the preservation of 10 confidentiality in respect thereof.”.
Substitution of section 23 of Act 97 of 1990
16. The following section is substituted for section 23 of the principal Act:
“Limitation of liability
23. The Minister, the board, a member or dtemate member of the board or the board of appeal or any officer or employee in the employment of the board shall not be liable [in respect of any bona fide exercise of a discretion in the performance of any function by him] for any loss sustained by, or damage caused to, any person as a result of anything done or omitted by any such functionary, body or person in the bona$de, but not grossly negligent, exercise of any power or the carrying out of any duty or the. performance of any function under or in terms of this Act or any other law.”.
Substitution of section 24 of Act 97 of 1990
17. The following section is substituted for section 24 of the principal Act:
“Restriction on use of name or description implying connection with board
24. No person shall apply to any company, body, firm, business or undertaking a name or description signifying or implying some connection between such company, body, firm, business or undertaking and the board unless the person— (a) has been authorised by the board to do so; and (b) complies with the conditions determined by the board.”.
Amendment of section 26 of Act 97 of 1990, as amended by section 8 of Act 41 of 1992
18. Section 26 of the principal Act is amended— (a) by the substitution for subsection (1) of the following subsection:
“(1 ) There is hereby established a board of appeal, which shall consist of three persons with an alternate for each of them (hereafter referred to as ‘the members of the board of appeal’), appointed by the Minister, of whom— (a)
(b)
(c)
one shall be a person appointed on account of his or her wide experience and expert knowledge of law, who shall be the [chairman] chairperson; one shall be [one of the membem of the board] a person appointed on account of his or her wide experience and expert knowledge of financial institutions and financial services; and one shall be a person registered as an accountant and auditor under [section 23 OH the Public Accountants’ and Auditors’ Act, [1951 (Act No. 51 of 1951)] 1991 (Act No. 80 of 199 1), and who in the opinion of the Minister has wide experience of, and expert knowledge of the latest developments in, the accountants’ and auditors’ profess ion.’.;
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Act No. 12,2000 FINANCIAL SERVICES BOARD AMENDJVENT ACT, 2000
(b) by the substitution for subsection (1A) of the following subsection: “(1A) The executive officer shall designate [an officer of the board] YPerson to act as secretary of the board of appeal.”;
(c) by th~insertion after subsection (1A) of the following subsection: “(1 B).(a) When the board of appeal deems it necessary for the hearing 5
of a particular appeal that the board of appeal should be assisted by an assessor having expert knowledge of a particular matter, the board of appeal may co-opt any such person to participate in the appeal as an assessor of the board of appeal.
(b) Such assessor may not participate in any decision of the board of 10 appeal.”;
(d) by the insertion after subsection (2) of the following subsection: “(2A) The noting of an appeal in terms of subsection (2) does not
suspend the operation or execution of the decision pending the decision of the board of appeal, unless the board of appeal, on the application of 15 a party, directs otherwise.”;
(e) by the substitution for paragraph (b) of subsection (3) of the following paragraph:
“(b) in the case of the member referred to in subsection ( 1 )(b), [one of the other members of the board] a person temporarily appointed 20 [by the Minister] subject to the provisions of that subsection; and”;
(f) by the substitution for subsection (6) of the following subsection: “ (6) An appeal shall be heard on the date and at the place and time
fixed by the board of appeal, which shall in writing notify [the appellant as well as the executive officer] the parties to the appeal thereof.”; 25
(g) by the substitution for subsection (9) of the following subsection: “(9) [The appellant as well as the executive officer] Any party to an
appeal shall be entitled to be represented at an appeal by a legal [practitioner] representative.”;
(h) by the substitution for subsection (10) of the following subsection: 30 “(10) The board of appeal may after hearing the appeal—
(a) confirm, set aside or vary the relevant decision against which the appeal was brought;
(b) order that the decision of the board of appeal be given effect to; or (c) refer any matter back for consideration or reconsideration by the 35
executive officer in accordance with such directions as the board of appeal may lay down.”;
(i) by the substitution for subsection (12) of the following subsection: “(12) The decision of the board of appeal shall be put in writing, and
a copy thereof shall be furnished to [the appellant as well as to the 40 executive officer] every party to the appeal.;’; and
(j) by the substitution for subsection (14) of the following subsection: “(14) (a) The board of appeal may make such order as to costs,
including an order regarding the refunding of any fees paid in terms of subsection (2), as it may deem suitable and fair. 45
(b) An order as to costs shall have legal force and may be enforced as if it were issued in civil proceedings in a division of the High Court of South Africa within whose area of jurisdiction the board of appeal held its sitting.”.
Substitution of section 28 of Act 97 of 1990
19. The following section is substituted for section 28 of the principal Act:
“Application of Act
28. The provisions of this Act shall not affect the operation of any bank or mutual [building society or building society] bank registered in terms of the Banks Act, [1965 (Act No. 23 of 1965)] 1990 (Act No. 94 of 1990), Qr the Mutual [Building Societies Act, 1965 (Act No. 24 of 196j), or the Building Societies Act, 1986 (Act No. 82 of 1986)] Banks Act, 1993 (Act No. 124 of 1993), respectively, in respect of any bank or [building society]
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Act No. 12,2000 FINANCIAL SERVICES BOARD AMENDMENT ACT, 2000
mutual bank business carried on by such a bank or [building society] mutual bank in accordance with the provisions of the said Acts.”.
Savings and transitional provisions
20. (1) The repeal of section 15 of the principal Act by section 11 shall not affect— (a) the previous operation of section 15 or anything done under, in terms of or by 5
virtue of section 15; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under,
in terms of or by virtue of section 15. (2) The provisions of this Act shall not affect anything done or omitted under, in terms
of or by virtue of any provision of the principal Act, before the date of commencement 10 of this Act, which could have been done or omitted under, in terms of or by virtue of a provision of the principal Act as amended by this Act: Provided that anything specifically done by the Financial Services Board under sections 3(a) and 13(3) of the principal Act prior to the date of commencement of sections 1 and 2 of this Act, shall continue to have legal force unless the executive officer of that Board after the date of 15 commencement of this Act decides otherwise, and shall in any such case, be deemed to have been done by that executive officer.
(3) The provisions of this Act shall not affect— (a)
(b)
any legal proceedings in which the said Financial Services Board is involved, and which are pending in any court of law immediately prior to the date of 20 commencement of this Act, which proceedings shall proceed in all respects until final disposal thereof, as if this Act had not been passed; and any international agreement, memorandum of understanding or communiqu~ concluded before the date of commencement of this Act by the said Financial Services Board, provided that any functions or duties entrusted or imposed on, 25 or rights granted to, that Board under , in terms of or by virtue of any such agreement, memorandum or communique shall upon the date of commence- ment of this Act devolve on the executive officer of that Board.
Amendment of laws
21. The laws mentioned in the Schedule are amended to the extent indicated in the 30 third column thereof.
Substitution of long title of Act 97 of 1990
22. The following long title is hereby substituted for the long title of the principal Act: “TO provide for the establishment of a board to [exercise supervision over the business ofl supervise compliance with laws regulating financial institutions and 35 the provision of financial services; and for matters connected therewith.”.
Short title and commencement
23. This Act is called the Financial Services Board Amendment Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazefre.
16 No. 21141 GOVERNMENT GAZE~E, 3 MAY 2000
No. and year of law Short title Extent of amendment Act No. 32 of 1996 Supervision of Financial Institutions 1. The amendment of section 2 by
Rationalisation Act. 1996 [he deletion of subsection (6). Act No. 80 of 1998 Inspection of Financial Institutions 1. me amendment of section I by
Act, 1998 [he addition to the definition of “financial institution” of the fol- lowing paragraph:
‘.(c) for the purposes of imPle. mentation of any agree- ment, communique or memorandum of under- standing referred to in sec- tion 3A, any person referred to in that section;”
2. The insertion of the fo]lowing section after section 3:
“Inspections for purposes of agreements, communiques and memoranda of understanding
3A. The registrar may at any time instruct an inspector to carry out an inspection in accordance with the provi- sions of sections 4 and 5, pur- suant to and for the purposes of implementation of any agreement, comoruniq[i~ or memorandum of understand- ing contemplated in section ~~(~)(b) of the Financial Ser.
vices Board Act, 1990 (Act No, 97 of 1990). of the affairs or part of the affairs of ~ny person referred to in. or iden- tified by the requestln~ all- thority acting in terms of, any such agreement. comm[miqui or memorandum, and who is present or resident in the Re-
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Act No. 12, 2000 FINANCIAL SERVICES BOARD AMENDMENT ACT, 2000
SCHEDULE
LAWS AMENDED
(Section 21)