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Financial Institutions (Protection of Funds) Act, 2001 (Act No. 28 of 2001)

1. Definitions

 

(1) In this Act, unless the context indicates otherwise–

 

"administrative sanction"

[Definition deleted by section 290, item 1(a) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"applicant"

means the registrar or the directorate that refers a person to the enforcement committee;

[Definition inserted by section 41 of the Financial Services Laws General Amendment Act, 2008 (Act No. 22 of 2008)]

 

"Authority"

means the Financial Sector Conduct Authority established in terms of section 56 of the Financial Sector Regulation Act;"

[Definition inserted by section 290, item 1(b) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"board"

[Definition deleted by section 290, item 1(c) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"company"

includes a close corporation referred to in the Close Corporations Act, 1984 (Act No. 69 of 1983);

 

"Companies Act"

means the Companies Act, 2008 (Act No. 71 of 2008);

[Definition inserted by section 156(a) of Act No. 45 of 2013]

 

"contravention"

includes any non-compliance with any law;

[Definition inserted by section 41 of the Financial Services Laws General Amendment Act, 2008 (Act No. 22 of 2008)]

 

"determination"

[Definition deleted by section 290, item 1(c) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"directorate"

[Definition deleted by section 290, item 1(c) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"enforcement committee"

[Definition deleted by section 290, item 1(c) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"financial institution"

[Definition deleted by section 290, item 1(c) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"Financial Sector Regulation Act"

means the Financial Sector Regulation Act, 2017;

[Definition inserted by section 290, item 1(d) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"institution"

for the purposes of sections 5, 6, 9 and 10, means–

(a) a financial institution;
(b) any person, partnership, company or trust in which, or in the business of which, a financial institution or an unregistered person has or had a direct or indirect interest;
(c) any person, partnership, company or trust which has or had a direct or indirect interest in a financial institution or unregistered person, or in the business of a financial institution or an unregistered person;
(d) a participating employer in a pension fund organisation;
(e) any person, partnership, Company or trust that controls, manages or administers the affairs or part of the affairs of a financial institution or an unregistered person; or
(f) any unregistered person;

 

"law",

for the purposes of section 5A, means—

(a) this Act;
(b) the Pension Funds Act, 1956 (Act No. 24 of 1956);
(c) the Friendly Societies Act, 1956 (Act No. 25 of 1956);
(d) the Close Corporations Act, 1984 (Act No. 69 of 1984);
(e) the Trust Property Control Act, 1988 (Act No. 57 of 1988);
(f) the Banks Act, 1990 (Act No. 94 of 1990);
(g) the Mutual Banks Act, 1993 (Act No. 124 of 1993);
(h) the Long-term Insurance Act, 1998 (Act No. 52 of 1998);
(i) the Short-term Insurance Act, 1998 (Act No. 53 of 1998);
(j) the Medical Schemes Act, 1998 (Act No. 131 of 1998);
(k) the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001);
(l) the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002);
(m) the Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002);
(n) the Co-operative Banks Act, 2007 (Act No. 40 of 2007);
(o) the Companies Act, 2008 (Act No. 71 of 2008);
(p) the Financial Markets Act, 2012 (Act No. 19 of 2012);
(q) the Credit Rating Services Act, 2012 (Act No. 24 of 2012);

including any subordinate legislation, enactment or regulatory instrument made under these Acts;

[Definition substituted  by section 290, item 1(f) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

"nominee company"

means a company, controlled by a financial institution, which—

(a) is incorporated under the provisions of the Companies Act;
(b) has as a special condition contemplated in section 15(2) of the Companies Act the requirement to act as nominee for, or representative of, any person in the holding of any property in trust for such person or persons;
(c) is precluded as a special condition in its Memorandum of Incorporation from incurring any liabilities other than to the persons on whose behalf it holds assets, to the extent of their respective rights to, and interest in, such assets; and
(d) has entered into an irrevocable written agreement with a financial institution which controls the company, and in terms of which such financial institution has undertaken to pay all the expenses of, and incidental to, its formation, operations and liquidation;

[Definition amended by section 156(e) of Act No. 45 of 2013]

 

"official web site"

means a web site as defined in section 1 of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002), set up by the board;

[Definition inserted by section 156(f) of Act No. 45 of 2013]

 

"person"

includes any institution, partnership or trust;

[Definition inserted by section 41 of the Financial Services Laws General Amendment Act, 2008 (Act No. 22 of 2008)]

 

"registrar"

means—

(a) the Authority; or
(b) the registrar of medical schemes referred to in section 1 of the Medical Schemes Act, 1998;

[Definition substituted by section 290, item 1(g) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of  by section 41 of the Financial Services Laws General Amendment Act, 2008 (Act No. 22 of 2008)]

 

"respondent"

[Definition deleted by section 290, item 1(h) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of by section 41 of the Financial Services Laws General Amendment Act, 2008 (Act No. 22 of 2008)]

 

"trust property"

means any corporeal or incorporeal, movable or immovable asset invested, held, kept in safe custody, controlled, administered or alienated by any person, partnership, company or trust for, or on behalf of, another person, partnership, company or trust, and such other person, partnership, company or trust is hereinafter referred to as the principal;

 

"unregistered person"

means any person, partnership, company or trust not registered, approved or otherwise authorised by the registrar under a relevant law to carry on the business of a financial institution, but who or which carries on such business or a business corresponding to a business normally carried on by a financial institution.

 

(2) Unless the context otherwise indicates, words and expressions not defined in subsection (1) have the same meaning ascribed to them in terms of the Financial Sector Regulation Act.

[Section 1(2) inserted by section 290, item 1(i) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]

 

 

1 In terms of section 1 of the Financial Services Board Act, 1990, a "financial institution" is defined as –

"a)

i) any pension fund organisation registered in terms of the Pension Funds Act, 1956 (Act No. 24 of 1956). or any person referred to in section 13B of that Act administering the investments of such a pension fund or the disposition of benefits provided for in the rules of such a pension fund;
ii) any friendly society registered in terms of the Friendly Societies Act, 1956 (Act No. 25 of 1956), or any person in charge of the management of the affairs of such a society;
iii) any ‘unit trust scheme’ as defined in section 1 of the Unit Trusts Control Act, 1981 (Act No. 54 of 1981), or any management company or trustee in relation to such a scheme;
iv) any ‘scheme’ as defined in section 1 of the Participation Bonds Act, 1981 (Act No. 55 of 1981), or any manager or nominee company in relation to such a scheme;
v) any ‘stock exchange’, ‘member’ or ‘stockbroker’ as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985), or any person referred to in section 4(1) of that Act managing investments as contemplated in that section;
vi) any ‘financial exchange’, ‘member’ or ‘recognised clearing house’ as defined in section 1 of the Financial Markets Control Act, 1989 (Act No. 55 of 1989), or any person referred to in section 5( 1) of that Act managing investments as contemplated in that section;
vii) any ‘registered insurer’ as defined in section 1(1) of the Insurance Act, 1943 (Act No. 27 of 1943);
viii) any agent, broker or other person contemplated in section 20bis of the Insurance Act, 1943;
ix) any person deemed, in terms of section 60 of the Insurance Act, 1943, to be carrying on insurance business in the Republic;
x) any person rendering or who is to render services contemplated in section 23A(1) of the Insurance Act, 1943;
xi) any ‘central securities depository’ or a ‘depositary institution’ as defined in section 1 of the Safe Deposit of Securities Act, 1992 (Act No. 85 of 1992), or any member of such a securities depository;
b)
i) a bank as defined in section 1 (1) of the Banks Act, 1990 (Act No. 94 of 1990), or a mutual bank as defined in section l(1) of the Mutual Banks Act, 1993 (Act No. 124 of 1993), which deals with trust property as a regular feature of its business; or
ii) any other person who or which deals with trust property as a regular feature of his, her or its business, but who is not registered, licensed, recognised, approved or otherwise authorised to deal so in terms of any Act, other than the Companies Act, 1973 (Act No. 61 of 1973), the Close Corporations Act, 1984 (Act No. 69 of 1984), and the Trust Property Control Act, 1988 (Act No. 57 of 1988);"