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

Chapter II  Authorisation of Financial Services Providers

8. Application for authorisation

 

 

1) An application for an authorisation referred to in section 7(1), including an application by an applicant not domiciled in the Republic, must be submitted to the registrar in the form and manner determined by the registrar by notice on the official web site, and be accompanied by information to satisfy the registrar that the applicant complies with the fit and proper requirements determined for financial services providers or categories of providers, determined by the registrar by notice in the Gazette, in respect of –
a) personal character qualities of honesty and integrity;
b) competence;
bA) operational ability; and
c) financial soundness.

[Subsection 1 amended by section 182(a) of Act No. 45 of 2013]

 

(1A) If the applicant is a partnership, trust or corporate or unincorporated body, the requirements in paragraphs (a) and (b) of subsection (1) do not apply to the applicant, but in such a case the application must be accompanied by additional information to satisfy the registrar that every person who acts as a key individual of the applicant complies with the fit and proper requirements for key individuals in the category of financial services providers applied for, in respect of—

(a)        personal character qualities of honesty and integrity;

(b)        competence; and

(c)        operational ability,

to the extent required in order for such key individual to fulfil the responsibilities imposed by this Act.

[Subsection (1A) inserted by section 182(b) of Act No. 45 of 2013]

 

2) The registrar may –
a) require an applicant to furnish such additional information, or require such information to be verified, as the registrar may deem necessary; and
b) take into consideration any other information regarding the applicant or proposed key individual of the applicant, derived from whatever source, including the Ombud and any other regulatory or supervisory authority, if such information is disclosed to the applicant and the latter is given a reasonable opportunity to respond thereto.

[Subparagraph (b) amended by section 182(c) of Act No. 45 of 2013]

 

3) The registrar must after consideration of an application –
a) grant the application if the registrar—
i) is satisfied that the applicant and its key individual or key individuals comply with the requirements of this Act; and
ii) approves the key individual or key individuals of the applicant, in the case of a partnership, trust or corporate or unincorporated body; or
b) refuse the application if the registrar—
i) is not satisfied that the applicant and its key individual or key individuals comply with the requirements of this Act; or
ii) does not approve the key individual or key individuals of the applicant in the case of a partnership, trust or corporate or unincorporated body.

[Subsection 3 amended by section 182(d) of Act No. 45 of 2013]

 

4)
a) Where an application is granted, the registrar may impose such conditions and restrictions on the exercise of the authority granted by the licence, and to be included in the licence, as are necessary, having regard to –
i) all facts and information available to the registrar pertaining to the applicant and any key individual of the applicant ;
ii) the category of financial services which the applicant could appropriately render or wishes to render;
iii) the category of financial services providers in which the applicant is classified for the purposes of this Act; and

[Subparagraph (iii) amended by section 182(e) of Act No. 45 of 2013]

iv) the category or subcategory of financial products in respect of which the applicant could appropriately render or wishes to render financial services.

[Subparagraph (iv) amended by section 182(e) of Act No. 45 of 2013]

b) Conditions and restrictions contemplated in paragraph (a), may include a condition that where after the date of granting of the licence –
i) any key individual in respect of the licensee's business is replaced by a new key individual; or
ii) any new key individual is appointed or assumes office; or
iii) any change occurs in the personal circumstances of a key individual which renders or may render such person to be no longer compliant with the fit and proper requirements for key individuals,

no such person may be permitted to take part in the conduct, management or oversight of the licensee's business in relation to the rendering of financial services, unless such person has on application been approved by the registrar as compliant with the fit and proper requirements for key individuals, in the manner and in accordance with a procedure determined by the registrar by notice on the official web site.

[Subparagraph (iii) amended by section 182(f) and (g) of Act No. 45 of 2013]

 

5)
a) Where an application for authorisation is granted, the registrar must issue to the applicant –
i) a licence authorising the applicant to act as a financial services provider, in the form determined by the registrar by notice in the Gazette; and
ii) such number of certified copies of the licence as may be requested by the applicant.

[Subsection 5(a) amended by section 182(h) of Act No. 45 of 2013]

b) The registrar may at any time after the issue of a licence –
i) on application by the licensee or on own initiative withdraw or amend any condition or restriction in respect of the licence, after having given the licensee a reasonable opportunity to make submissions on the proposed withdrawal or amendment and having considered those submissions, if the registrar is satisfied that any such withdrawal or amendment is justified and will not prejudice the interests of clients of the licensee; or
ii) pursuant to an evaluation of a new key individual, or a change in the personal circumstances of a key individual, referred to in subsection (4)(b), impose new conditions on the licensee after having given the licensee a reasonable opportunity to be heard and having furnished the licensee with reasons, and must in every such case issue an appropriately amended licence to the licensee, and such number of certified copies of the amended licence as may be requested by the licensee.

[Subparagraph (ii) amended by section 182(i) of Act No. 45 of 2013]

 

6) Where an application referred to in subsection (1) is refused, the registrar must –
a) notify the applicant thereof; and
b) furnish reasons for the refusal.

 

7)
a) Despite any other provision of this section, a person granted accreditation under section 65(3) of the Medical Schemes Act, 1998 (Act No. 131 of 1998), must, subject to this subsection, be granted authority to render as a financial services provider the specific financial service for which the person was accredited, and must be issued with a licence in terms of subsection (5).

[Subparagraph (a) amended by section 182(j) of Act No. 45 of 2013]

b) The registrar must be satisfied that a person to be granted authority under paragraph (a), and any key individual of such person, comply with the fit and proper requirements.

[Subparagraph (b) amended by section 182(j) of Act No. 45 of 2013]

c) A person granted authority and licensed as contemplated in paragraph (a), together with any key individual, are thereafter subject to the provisions of this Act .
d) If a licence –
i) is refused in terms of this section;
ii) is suspended in terms of section 9;
iii) is withdrawn in terms of section 10; or
iv) lapses in terms of section 11, the accreditation referred to in paragraph (a) is deemed to have lapsed in terms of the Medical Schemes Act, 1998, or to have been suspended or withdrawn, as the case may be.
e) If an accreditation referred to in paragraph (a) is suspended or withdrawn or lapses in terms of the Medical Schemes Act, 1998, the licence issued in terms of that paragraph is deemed to have been suspended or withdrawn or to have lapsed in terms of sections 9, 10 and 11, respectively, of this Act.

 

8) A licensee must –
a) display a certified copy of the licence in a prominent and durable manner within every business premises of the licensee;
b) ensure that a reference to the fact that such a licence is held is contained in all business documentation, advertisements and other promotional material; and

[Subparagraph (b) amended by section 182(k) of Act No. 45 of 2013]

c) ensure that the licence is at all times immediately or within a reasonable time available for production to any person requesting proof of licensed status under authority of a law or for the purpose of entering into a business relationship with the licensee.

 

9) No person may—
a) in any manner make use of any licence or copy thereof for business purposes where the licence has lapsed, has been withdrawn or provisionally withdrawn or during any time when the licensee is under provisional or final suspension;
b) perform any act which indicates that the person renders or is authorised to render financial services or is appointed as a representative to render financial services, unless the person is so authorised or appointed; and
c) perform any act, make or publish any statement, advertisement, brochure or similar communication which—
i) relates to the rendering of a financial service, the business of a provider or a financial product; and
ii) the person knows, or ought reasonably to know, is misleading, false, deceptive, contrary to the public interest or contains an incorrect statement of fact.

[Subsection 9 amended by section 182(l) of Act No. 45 of 2013]

 

10)
a) Where a provider is a corporate or unincorporated body, a trust or a partnership, the provider must—
i) At all times be satisfied that every director, member, trustee or partner of the provider, who is not a key individual in the provider’s business, complies with the requirements in respect of personal character qualities of honesty and integrity as contemplated in paragraph (a) of subsection 1(A); and

[Subparagraph (i) amended by section 182(m) of Act No. 45 of 2013]

ii) Within 15 days of the appointment of a new director, member, trustee or partner, inform the registrar of the appointment and furnish the registrar with such information on the matter as the registrar may reasonably require.
b) If the registrar is satisfied that a director, member, trustee or partner does not comply with the requirements as contemplated in paragraph (a) of subsection 1(A), the registrar may suspend or withdraw the licence of the provider as contemplated in section 9.

[Paragraph (b) amended by section 182(n) of Act No. 45 of 2013]