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Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002)

Introductory Provisions

1. Definitions and application

 

 

1) In this Act, unless the context indicates otherwise -

 

"advice"

means, subject to subsection (3)(a), any recommendation, guidance or proposal of a financial nature furnished, by any means or medium, to any client or group of clients -

a) in respect of the purchase of any financial product; or
b) in respect of the investment in any financial product; or
c) on the conclusion of any other transaction, including a loan or cession ,aimed at the incurring of any liability or the acquisition of any right or benefit in respect of any financial product; or
d) on the variation of any term or condition applying to a financial product , on the replacement of any such product, or on the termination of any purchase of or investment in any such product, and irrespective of whether or not such advice –
i) is furnished in the course of or incidental to financial planning in connection with the affairs of the client; or
ii) results in any such purchase, investment, transaction, variation, replacement or termination, as the case may be, being effected;

 

"Advisory Committee"

[Definition deleted by section 175(a) of Act No. 45 of 2013]

 

"application"

in relation to the performance of any act by the registrar , means, except where in a specific case other specific provision is made, an application referred to in section 3(2);

 

"auditor"

means an auditor registered in terms of the Auditing Profession Act; 2005 (Act No. 26 of 2005).

 

"authorised financial services provider" or "provider"

means a person who has been granted an authorisation as a financial services provider by the issue to that person of a licence under section 8;

 

"Board"

means the Financial Services Board established by section 2 of the Financial Services Board Act;

 

"board of appeal"

means the board of appeal established by section 26(1) of the Financial Services Board Act;

 

"client"

means a specific person or group of persons, excluding the general public, who is or may become the subject to whom a financial service is rendered intentionally, or is the successor in title of such person or the beneficiary of such service;

 

"code of conduct"

means any published code of conduct contemplated in section 15;

 

"collective investment scheme"

means a collective investment scheme as defined in the Collective Investment Schemes Control Act, 2002;

 

"Companies Act"

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

[Definition inserted by section 175(b) of Act No. 45 of 2013]

 

"complainant"

means, subject to section 26(1)(a)(ii), a specific client who submits a complaint to the Ombud;

 

"complaint"

means, subject to section 26(1)(a)(iii), a specific complaint relating to a financial service rendered by a financial services provider or representative to the complainant on or after the date of commencement of this Act, and in which complaint it is alleged that the provider or representative -

a) has contravened or failed to comply with a provision of this Act and that as a result thereof the complainant has suffered or is likely to suffer financial prejudice or damage;
b) has wilfully or negligently rendered a financial service to the complainant which has caused prejudice or damage to the complainant or which is likely to result in such prejudice or damage; or
c) has treated the complainant unfairly;

 

"compliance officer"

means a compliance officer for an authorised financial services provider referred to in section 17;

 

"continuous professional development"

means a process of learning and development with the aim of enabling a financial services provider, key individual, representative or compliance officer to maintain the competency to comply with this Act;

[Definition inserted by section 175(c) of Act No. 45 of 2013]

 

"Court"

means any court having jurisdiction;

 

"document"

includes a document created, recorded, transmitted or stored in digital or other intangible but readable form by way of electronic, magnetic, optical or any similar means.

 

"exempt"

means to exempt, on application by a person or on the registrar' s own initiative, on any of the grounds mentioned in section 44(1)(a), (b) or (c) and (4)(a);

 

"financial product"

means, subject to subsection (2) –

a) securities and instruments, including –
i) shares in a company other than a "share block company" as defined in the Share Blocks Control Act, 1980 (Act No. 59 of 1980) ;
ii) debentures and securitised debt;
iii) any money-market instrument;
iv) any warrant, certificate, and other instrument acknowledging, conferring or creating rights to subscribe to, acquire, dispose of, or convert securities and instruments referred to in subparagraphs (i), (ii) and (iii);
v) any "securities" as defined in section 1 of the Financial Markets Act, 2012 (Act No. 19 of 2012);

[Subparagraph (v) amended by section 175(d) of Act No. 45 of 2013]

b) a participatory interest in one or more collective investment schemes;
c) a long-term or a short-term insurance contract or policy, referred to in the Long-term Insurance Act, 1998 (Act No. 52 of 1998), and the Short-term Insurance Act, 1998 (Act No. 53 of 1998), respectively;
d) a benefit provided by –
i) a pension fund organisation as defined in section 1(1) of the Pension Funds Act, 1956 (Act No. 24 of 1956), to the members of the organisation by virtue of membership; or
ii) a friendly society referred to in the Friendly Societies Act, 1956 (Act No. 25 of 1956), to the members of the society by virtue of membership;
e) a foreign currency denominated investment instrument, including a foreign currency deposit;
f) a deposit as defined in section 1(1) of the Banks Act, 1990 (Act No. 94 of 1990);
g) a health service benefit provided by a medical scheme as defined in section 1(1) of the Medical Schemes Act, 1998 (Act No. 131 of 1998);
h) any other product similar in nature to any financial product referred to in paragraphs (a) to (g), inclusive, declared by the registrar by notice in the Gazette to be a financial product for the purposes of this Act;

[Subparagraph (h) amended by section 175(e) of Act No. 45 of 2013]

i) any combined product containing one or more of the financial products referred to in paragraphs (a) to (h), inclusive;
j) any financial product issued by any foreign product supplier and marketed in the Republic and which in nature and character is essentially similar or corresponding to a financial product referred to in paragraphs (a) to (1), inclusive;

 

"financial service"

means any service contemplated in paragraph (a), (b) or (c) of the definition of "financial services provider", including any category of such services;

 

"Financial Services Board Act"

means the Financial Services Board Act , 1990 (Act No. 97 of 1990);

 

"financial services provider"

means any person, other than a representative, who as a regular feature of the business of such person  -

a) furnishes advice; or
b) furnishes advice and renders any intermediary service; or
c) renders an intermediary service;

 

"fit and proper requirements"

means the requirements published under section 6A;

[Definition inserted by section 175(f) of Act No. 45 of 2013]

 

"intermediary service"

means, subject to subsection (3)(b), any act other than the furnishing of advice, performed by a person for or on behalf of a client or product supplier –

a) the result of which is that a client may enter into, offers to enter into or enters into any transaction in respect of a financial product with a product supplier; or
b) with a view to—
i) buying, selling or otherwise dealing in (whether on a discretionary or non-discretionary basis), managing, administering, keeping in safe custody, maintaining or servicing a financial product purchased by a client from a product supplier or in which the client has invested;
ii) collecting or accounting for premiums or other moneys payable by the client to a product supplier in respect of a financial product; or
iii) receiving, submitting or processing the claims of a client against a product supplier;

 

"key individual"

in relation to an authorised financial services provider, or a representative, carrying on business as —

a) a corporate or unincorporated body, a trust or a partnership, means any natural person responsible for managing or overseeing, either alone or together with other so responsible persons, the activities of the body, trust or partnership relating to the rendering of any financial service; or
b) a corporate body or trust consisting of only one natural person as member, director, shareholder or trustee, means any such natural person ;

 

"licence"

means a licence contemplated in section 7(1);

 

"licensee"

means a financial services provider to whom a licence has been issued under section 8;

 

"Minister"

means the Minister of Finance;

 

"Office"

means the Office of the Ombud established by section 20(1);

 

"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 175(g) of Act No. 45 of 2013]

 

"Ombud"

means -

a) the Ombud for Financial Services Providers appointed in terms of section 21(1); and
b) for the purposes of sections 27, 28, 31 and 39, includes a deputy ombud;

 

"person"

means any natural person, partnership or trust, and includes -

a) any organ of state as defined in section 239 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
b) any company incorporated or registered as such under any law;
c) any body of persons corporate or unincorporate;

 

"prescribe"

means prescribe by regulation ;

 

"product supplier"

means any person who issues a financial product;

[Definition amended by section 175(h) of Act No. 45 of 2013]

 

"publish"

means any direct communication transmitted by any medium, or any representation or reference written, inscribed, recorded, encoded upon or embedded within any medium, by means of which a person, other than the registrar, seeks to bring any information to the attention of any other person, or all or part of the public;

[Definition inserted by section 175(i) of Act No. 45 of 2013]

 

"registrar"

means the person referred to in section 2;

[Definition amended by section 175(j) of Act No. 45 of 2013]

 

"regulation"

means a regulation made under section 35;

 

"regulatory authority"

means an entity established in terms of national legislation responsible for regulating activities of an industry, or sector of an industry.

 

"representative"

means any person, including a person employed or mandated by such first-mentioned person, who renders a financial service to a client for or on behalf of a financial services provider, in terms of conditions of employment or any other mandate, but excludes a person rendering clerical, technical, administrative, legal, accounting or other service in a subsidiary or subordinate capacity, which service -

a) does not require judgment on the part of the latter person; or
b) does not lead a client to any specific transaction in respect of a financial product in response to general enquiries ;

 

"rule"

means a rule made by the Board under section 26 ;

 

"this Act"

includes any regulation, rule or code of conduct, and any notice given, approval or exemption granted, determination made, requirement or condition determined or imposed, or any other decision referred to in section 3(1).

 

2) For the purposes of this Act a financial product does not include any financial product exempted from the provisions of this Act by the registrar by notice in the Gazette, taking into consideration the extent to which the rendering of financial services in respect of the product is regulated by any other law.

[Subsection 2 amended by section 175(k) of Act No. 45 of 2013]

 

3) For the purposes of this Act –
a) advice does not include –
i) factual advice given merely –
aa) on the procedure for entering into a transaction in respect of any financial product;
bb) in relation to the description of a financial product ;
cc) in answer to routine administrative queries;
dd) in the form of objective information about a particular financial product; or
ee) by the display or distribution of promotional material;
ii) an analysis or report on a financial product without any express or implied recommendation, guidance or proposal that any particular transaction in respect of the product is appropriate to the particular investment objectives, financial situation or particular needs of a client;
) advice given by –
aa) the board of management, or any board member, of any pension fund organisation or friendly society referred to in paragraph (d) of the definition of "financial product" in subsection (1) to the members of the organisation or society on benefits enjoyed or to be enjoyed by such members; or
bb) the board of trustees of any medical scheme referred to in paragraph (g) of the said definition of "financial product", or any board member, to the members of the medical scheme, on health care benefits enjoyed or to be enjoyed by such members; or
iv) any other advisory activity exempted from the provisions of this Act by the registrar by notice in the Gazette;

[Subparagraph (iv) amended by section 175(l) of Act No. 45 of 2013]

b) intermediary service does not include –
i) the rendering by a bank, mutual bank or co-operative bank of a service contemplated in paragraph (b)(ii) of the definition of "intermediary service" where the bank, mutual bank or co-operative bank acts merely as a conduit between a client and another product supplier;
ii) an intermediary service rendered by a product supplier –
aa) who is authorised under a particular law to conduct business as a financial institution; and
bb) where the rendering of such service is regulated by or under such law;
iii) any other service exempted from the provisions of this Act by the registrar by notice in the Gazette.

[Subparagraph (iii) amended by section 175(m) of Act No. 45 of 2013]

 

4) The rendering of a financial service in respect of a deposit referred to in paragraph (f) of the definition of "financial product " in subsection (1) with a term not exceeding 12 months by a provider which is a bank as defined in the Banks Act, 1990, or a mutual bank as defined in the Mutual Banks Act , 1993, or a co-operative bank as defined in the Co-operative Banks Act, 2007 (Act No. 40 of 2007), is regulated by this Act in the code of conduct contemplated in section 15(2)(b).

[Subsection 4 amended by section 175(n) of Act No. 45 of 2013]

 

5) Provisions of this Act relating to financial services providers, representatives and product suppliers apply to any natural person or group of natural persons acting within the scope of their official duties in the employ of the State, or any organisational unit of the State, or any public entity, unless the Minister by notice in the Gazette determines otherwise in respect of any such person, group, unit or entity .

 

6) This Act must be construed as being in addition to any other law not inconsistent with its provisions and not as replacing any such law.