In these Regulations, "the Act" means the Banks Act, 1990 (Act No. 94 of 1990), and any word or expression to which a meaning has been assigned in the Act or the Regulations relating to Banks shall bear the meaning so assigned thereto and, unless the content otherwise indicates—
"associate"
| (a) |
in relation to a juristic person— |
| (i) |
which is a company, means any subsidiary or holding company of that company, any other subsidiary of that holding company and any other company of which that holding company is a subsidiary; |
| (ii) |
which is a close corporation registered under the Close Corporations Act, 1984 (Act No. 69 of 1984), means any member thereof; |
| (iii) |
which is not a company or a close corporation as contemplated in this definition, means another juristic person that would have been a subsidiary of the first-mentioned juristic person— |
| (aa) |
had such first-mentioned juristic person been a company; or |
| (bb) |
in the case when that other juristic person, too, is not a company, had both the first-mentioned juristic person and that other juristic person been a company; |
| (iv) |
means any person in accordance with whose directions or instructions the board of directors of or, in the case when such juristic person is not a company, the governing body of such juristic person is accustomed to act; and |
| (b) |
in relation to any person— |
| (i) |
means any juristic person of which the board of directors or, in the case when such juristic person is not a company, of which the governing body is accustomed to act in accordance with the directions or instructions of the person first-mentioned in this paragraph; and |
| (ii) |
includes any trust controlled or administered by that person; |
"bank"
means an institution that is registered as a—
| (a) |
bank in terms of the Banks Act; or |
| (b) |
mutual bank in terms of the Mutual Banks Act; |
"connected persons"
means two or more persons—
| (a) |
that are predominantly engaged in financial activities; |
| (b) |
one or more of which is a bank; |
| (c) |
each of which is an associate of any one of the others; and |
| (i) |
owing to the fact that one of them directly or indirectly owns or exercises control over the other or others, constitutes a single financial entity; or |
| (ii) |
are so interconnected that should one of them experience financial difficulties, another one or all of them would be likely to be adversely affected, |
irrespective of whether any of those persons are not domiciled in the same country as the other or others;
"financial asset"
means—
| (b) |
a contractual right to— |
| (i) |
receive cash or another financial asset from another person; |
| (ii) |
exchange financial instruments with another person under conditions that are potentially favourable; or |
| (c) |
an equity instrument; |
"financial instrument"
means any instrument that gives rise to a financial—
| (a) |
asset of one person; and |
| (b) |
liability or equity instrument of another person; |
"financial liability"
means an obligation to—
| (a) |
deliver cash or another financial asset to another person; or |
| (b) |
exchange financial instruments with another person under conditions that are potentially unfavourable; |
"holding of a financial instrument"
means the holding of a financial instrument by a bank—
| (a) |
on behalf of a buyer or seller; |
| (b) |
for purposes of the management and control of such financial instrument |
| (c) |
within the limited or unlimited discretion of the bank; and |
| (d) |
for any length of time; |
"long position"
means the position when a person has bought a financial instrument in order to establish a market position and such market position has not yet been closed out by means of an offsetting sale;
"market value"
means the amount obtainable from the sale, or payable on acquisition, of a financial instrument in the market;
"Mutual Banks Act"
means the Mutual Banks Act, 1993 (Act No. 124 of 1993), as amended from time to time;
"net market value"
means the aggregated market value of all the long and short positions in a particular financial instrument category;
"netting"
means the process whereby—
| (a) |
a person's long position in a financial instrument is off-set against that person's short position in the financial instrument; and |
| (b) |
that person's short position in a financial instrument is off-set against his long position in the financial instrument, |
in order to ascertain the net position of the person in question;
"particular instrument"
means an interest-rate future, forward rate agreement or forward commitment to buy or sell loan stock;
"qualifying capital"
for purposes of a bank's trading activities includes tertiary capital;
"realisable value"
means a fair estimate of the market value at which a position could be sold without unduly affecting the market price of the instrument;
"Regulations relating to Banks"
means the Regulations relating to Banks as promulgated in Government Notice No. R.628 of 26 April 1996, as amended from time to time;
"short position"
means the position when a person has sold a financial instrument in order to establish a market position and such market position has not been closed out by means of a matching purchase;
"stock position"
includes—
| (a) |
commodities when the full contract price has been paid for; |
| (b) |
work-in-progress and finished goods resulting from the processing of commodities; or |
| (c) |
raw materials that will be combined with commodities to produce a finished processed commodity; |
"tertiary capital"
means—
| (a) |
accrued current-period uncapitalised profits derived from the trading book; or |
| (b) |
capital obtained by means of an unsecured subordinated loan for a period of not less than two years subject at least to the condition that- |
| (i) |
the prior written approval of the Registrar is obtained before the proceeds of such loan may qualify as capital; |
| (ii) |
the underlying debt instrument shall not be payable to bearer; |
| (iii) |
the loan may be repaid before maturity only at the option of the bank concerned and with the prior written approval of the Registrar; |
| (iv) |
no asset of the borrowing bank may be pledged or otherwise encumbered as security for any liability by virtue of the loan; and |
| (v) |
in the event of the borrowing bank's qualifying capital falling below the prescribed minimum amount, the Registrar may require that interest and capital payments in respect of the loan be deferred for such a period of time and subject to such conditions, if any, as the Registrar may deem fit; |
"trading book of a bank"
includes—
| (a) |
proprietary positions in financial instruments that are held for resale or that are taken on by the bank with the intention of benefiting, in the short term, from actual or expected differences between their buying and selling prices, or from other price or interest-rate variations, or positions in financial instruments arising from matched principal broking, or positions taken in order to hedge other elements of the trading book; |
| (b) |
exposures due to unsettled transactions, free deliveries and over-the-counter ("OTC") derivative instruments, including exposures resulting from— |
| (i) |
repurchase agreements and securities lending based on securities included in the trading book, as contemplated in paragraph (a); |
| (ii) |
resale agreements and securities borrowing transactions; |
and subject to at least the following conditions—
| (i) |
exposures are marked to market on a daily basis; |
| (ii) |
collateral is adjusted in order to take account of material changes in the value of the underlying securities involved in the agreement or transaction in question; and |
| (iii) |
an agreement exists that allows the claims of the bank to be automatically and immediately offset against the claims of its counterpart in the event of default; |
| (c) |
exposures, in the form of fees, commission, interest, dividends, and margin on exchange-traded derivatives, that are directly related to the items included in paragraph (a) or (b). |
Stamp Duties Act, 1968 (Act 77 of 1968)
