| (1) |
For the purposes of this section, "associate", in relation to— |
| (a) |
a natural person, means— |
| (i) |
a person who is recognised in law or the tenets of religion as the spouse, life partner or civil union partner of that person; |
| (ii) |
a child of that person, including a stepchild, an adopted child and a child born out of wedlock; |
| (iii) |
a parent or stepparent of that person; |
| (iv) |
a person in respect of which that person is recognised in law or appointed by a court as the person legally responsible for managing the affairs of or meeting the daily care needs of the first-mentioned person; |
| (v) |
a person who is the permanent life partner or spouse or civil union partner of a person referred to in subparagraphs (ii) to (iv); |
| (vi) |
a person who is in a commercial partnership with that person; |
| (vii) |
another person who has entered into an agreement or arrangement with that natural person, relating to the acquisition, holding or disposal of, or the exercising of voting rights in respect of, shares in the market infrastructure in question; |
| (i) |
which is a company, means its subsidiary and its holding company and any other subsidiary or holding company thereof as defined in section 1 of the Companies Act; |
| (ii) |
which is a close corporation registered under the Close Corporations Act, 1984 (Act No. 69 of 1984), means any member thereof as defined in section 1 of that Act; |
| (iii) |
which is not a company or close corporation, means another juristic person which would have been its subsidiary or holding company— |
| (aa) |
had it been a company; or |
| (bb) |
where that other juristic person is not a company either, had both it and that other juristic person been a company; |
| (iv) |
means any person in accordance with whose directions or instructions its board of directors or, in the case where such juristic person is not a company, the governing body of such juristic person, acts; |
| (c) |
in relation to any person— |
| (i) |
means any juristic person whose board of directors or, in the case where such juristic person is not a company, the governing body of such juristic person, acts in accordance with its directions or instructions; |
| (ii) |
means a trust controlled or administered by it. |
| (2) |
For the purposes of this section, a person controls a market infrastructure— |
| (a) |
that is a company, if that person, alone or with associates— |
| (i) |
holds shares in the market infrastructure of which the total nominal value represents more than 15 per cent of the nominal value of all the issued shares thereof; |
| (ii) |
is directly or indirectly able to exercise or control the exercise of more than 15 per cent of the voting rights associated with securities of that company, whether pursuant to a shareholder agreement or otherwise, or |
| (iii) |
has the right to appoint or elect, or control the appointment or election of, directors of that company who control more than 15 per cent of the votes at a meeting of the board; |
| (b) |
that is a close corporation, if that person, alone or with associates, owns more than 15 per cent of the members’ interest, or controls directly, or has the right to control, more than 15 per cent of members’ votes in the close corporation; or |
| (c) |
that is a trust, if that person, alone or with associates, has the ability to control more than 15 per cent of the votes of the trustees or to appoint more than 15 per cent of the trustees, or to appoint or change more than 15 per cent of the beneficiaries of the trust. |
| (3) |
A person may not, without the prior approval of the Authority, acquire or hold shares or any other interest in a market infrastructure, if the acquisition or holding results in that person, directly or indirectly, alone or with an associate, exercising control within the meaning of subsection (2) over the market infrastructure. |
| (4) |
A person may not, without the prior approval of the Authority, acquire shares or any other interest in a market infrastructure in excess of that approved under subsection (3). |
[Section 67(4) substituted by section 290, item 49(a) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (a) |
A person may not, without the prior approval of the Minister, acquire or hold shares or any other interest in a market infrastructure, if the acquisition or holding results in the per cent referred to in subsection (2) exceeding 49 per cent. |
| (b) |
Any request for approval referred to in paragraph (a) must be submitted through the Authority to the Minister. |
| (6) |
An approval referred to in subsection (3), (4) or (5)— |
[Words preceding section 67(6)(a) substituted by section 290, item 49(b) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (a) |
may be given subject to the condition that the aggregate nominal value of the shares owned by the person concerned and his or her associates may not exceed such percentage as may be determined by the Authority; |
| (b) |
may not be given if it will defeat the objects of this Act referred to in section 2; and |
| (c) |
may be refused if the person concerned, alone or with his or her associates, has not owned shares in the market infrastructure— |
| (i) |
of the aggregate nominal value; and |
| (ii) |
for a minimum period, not exceeding 12 months, that the Authority or the Minister, as the case may be, may determine. |
| (7) |
If the Authority or the Minister, as the case may be, is satisfied on reasonable grounds that the retention of a particular shareholding or other interests by a particular person will be prejudicial to the market infrastructure, the Authority or the Minister, as the case may be, may apply to the court in whose area of jurisdiction the main office of the market infrastructure is situated, for an order— |
| (a) |
compelling that person to reduce, within a period determined by the court, the shareholding or other interests in the market infrastructure to a shareholding with a total nominal value not exceeding— |
| (i) |
in a case where subsection (3) applies, 15 per cent; or |
of the total nominal value of all the issued shares of the market infrasrtructure; and
[Section 67(7)(a) substituted by section 290, item 49(c) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (b) |
limiting, with immediate effect, the voting or other rights that may be exercised by such person by virtue of his or her shareholding or other interest in the market infrastructure, to 15 or 49 per cent of the voting or other rights attached to the shares or other interests, as the case may be. |
| (8) |
An application referred to in subsection (3), (4) or (5) must be made in the manner and form prescribed by the Authority. |
[Section 67(8) substituted by section 290, item 49(d) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
National Environmental Management Act, 1998 (107 of 1998)
