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

Part I : Introductory Provisions

1. Definitions and application

 

 

1) In this Code-

 

"the Act"

means the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002), a word or expression to which a meaning has been assigned in the Act or in the Exchange Control laws, shall, unless clearly inappropriate, have that meaning and, unless the context indicates otherwise-

 

"churn"

means excessive trading in a client’s account by a forex investment intermediary to maximise the commissions or the revenue of the intermediary regardless of the client’s interests;

 

"clearing firm"

means an entity outside the Republic which complies with the requirements set out in, and has been approved in accordance with, the Regulations, and which handles confirmation, delivery and settlement of foreign exchange transactions in the foreign exchange market;

 

"currency pair"

means the two individual currencies involved in a foreign exchange transaction:

 

"drawdown"

means the reduction in a managed forex account or a self directed forex account value because of a trade or series of trades in the relevant account;

 

"ensure"

means, in relation to a person and any matter mentioned in a provision of this Code, to take any necessary steps in order that the clear objective of the provision is achieved;

 

"Exchange Control laws"

means the Currency and Exchanges Act, 1933 (Act No. 9 of 1933), and any exchange control regulations, rules and rulings promulgated or issued under or by virtue of that Act;

 

"foreign forex services provider"

means a person outside the Republic of South Africa who complies with the requirements set out in, and has been approved in accordance with, the Regulations, to the extent that the person carries on, as a regular feature, business corresponding to and complementing the business of a forex investment intermediary in the Republic;

 

"forex investment"

means an investment in a financial product referred to in paragraph (e) of the definition of "financial product" in section 1(1) of the Act, in foreign exchange trading based on price fluctuations in the foreign exchange market, but excluding transactions in foreign exchange conducted under Exchange Control laws by authorised dealers and their bureaux de change or commercial agencies;

 

"forex investment advisor"

means a financial services provider carrying on, as a regular feature of business, the rendering of advice on forex investments;

 

"forex investment business"

means the business carried on by forex investment advisors and forex investment intermediaries;

 

"forex investment intermediary"

means a financial services provider carrying on, as a regular feature of business, the rendering of intermediary services in respect of forex investments;

 

"forex services provider"

means an authorised financial services provider carrying on business as a forex investment advisor or a forex investment intermediary (including any representative of any such advisor or intermediary);

 

"General Code"

means the General Code of Conduct for Authorised Financial Services Providers and Representatives, 2003, published by Board Notice No. 80 of 2003, in Gazette No 25299 of 8 August 2003;

 

"introducing broker"

means a forex services provider who in terms of a written agreement introduces clients' funds to a foreign forex services provider for the purpose of discretionary or non-discretionary dealing on such introduced funds;

 

"leverage"

means the usage or gearing of a relatively small foreign currency margin deposit to control a much larger foreign currency amount usually expressed as the ratio of the margin deposit to the total value of levered foreign currency;

 

"managed forex account"

means a forex investment resulting from the advice or the intermediary services of a forex investment advisor or a forex investment intermediary, and which account is managed for or on behalf of a client by that intermediary or another forex investment intermediary appointed by the first mentioned intermediary;

 

"margin"

means a specified amount of money used as collateral to insure against potential losses from outstanding positions;

 

"margin call"

means a call from a clearing firm to a client to deposit additional collateral to cover outstanding commitments arising from outstanding loss-making positions;

 

"margin requirement"

means the amount of margin required by a specified amount of leveraged currency;

 

"omnibus account"

means an account that one forex investment intermediary or foreign forex services provider carries for another foreign forex services provider in which the deposits of multiple individual account holders are combined in such a manner that the funds are at all times identifiable as belonging to a specific person;

 

"Regulations"

means Chapter VI of the Financial Advisory and Intermediary Services Regulations, 2003, as inserted by Government Notice No. 297 of 12 March 2004 in Gazette No. 261 12 of that date;

 

"self-directed forex account"

means a forex investment, arranged by a forex investment advisor or forex investment intermediary, on which the client involved has full discretionary dealing power.