| (1) |
The registrar may, on an ex parte basis, apply to a division of the High Court having jurisdiction for the appointment of a curator to take control of, and to manage the whole or any part of, the business of an institution. |
[Section 5(1) amended by section 161(a) of Act No. 45 of 2013]
| (2) |
Upon an application in terms of subsection (1) the court may – |
| (a) |
on good cause shown, provisionally appoint a curator to take control of, and to manage the whole or any part of, the business of the institution on such conditions and for such a period as the court deems fit; and |
[Section 5(2)(a) amended by section 161(b) of Act No. 45 of 2013]
| (b) |
simultaneously grant a rule nisi calling upon the institution and other interested parties to show cause on a day mentioned in the rule why the appointment of the curator should not be confirmed. |
| (3) |
On application by the registrar or the institution the court may anticipate the return day if not less than 48 hours’ notice of such application has been given to the other party. |
[Section 5(3) amended by section 161(c) of Act No. 45 of 2013]
| (4) |
If at the hearing pursuant to the rule nisi the court is satisfied that it is desirable to do so, it may confirm the appointment of the curator. |
| (5) |
The court may, for the purposes of a provisional appointment in terms of subsection (2)(a) or a final appointment in terms of subsection (4), make an order with regard to – |
| (a) |
the suspension of legal or foreclosure proceedings against the institution for the duration of the curatorship; |
| (aA) |
the authority of the curator to investigate the affairs of the institution or any associated entity; |
| (b) |
the powers and duties of the curator; |
| (c) |
the remuneration of the curator; |
| (d) |
the costs relating to any application made by the registrar; |
| (e) |
the costs incurred by the registrar in respect of an inspection of the affairs of the institution that was conducted in terms of the Inspection of Financial Institutions Act, 1998 (Act No. 80 of 1998) prior to its repeal, or a supervisory on-site inspection or investigation in terms of the Financial Sector Regulation Act; |
[Section 5(5)(e) substituted by section 290, item 3(a) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018)]
| (eA) |
the method of service or publication of the order; or |
| (f) |
any other matter which the court deems necessary. |
[Section 5(5) amended by section 161(d) of Act No. 45 of 2013]
| (6) |
The curator acts under the control of the registrar who made the application under subsection (1) and in accordance with guidelines prescribed by the registrar by notice in the Gazette, and the curator may apply to that registrar for instructions with regard to any matter arising out of, or in connection with, the control and management of the business of the institution. |
[Section 5(6) amended by section 161(e) of Act No. 45 of 2013]
| (7) |
The curator of an institution must furnish the registrar with such reports or information concerning the affairs of the institution as the registrar may require. |
[Section 5(7) substituted by section 290, item 3(b) in Schedule 4, of Act No. 9 of 2017 - effective 1 April 2018 (paragraph (h) of Notice 169 of 2018]
| (a) |
Any person, on good cause shown, may make application to the court to set aside or alter any decision made, or any action taken, by the curator or the registrar with regard to any matter arising out of, or in connection with, the control and management of the business of an institution which has been placed under curatorship. |
| (b) |
A person who makes application contemplated in paragraph (a) must give notice of not less than 48 hours of such application to the registrar or the curator, as the case may be, and the registrar or curator is entitled to be heard at such application. |
[Section 5(8)(b) amended by section 161(f) of Act No. 45 of 2013]
| (9) |
The court may, on good cause shown, cancel the appointment of the curator at any time. |
| (10) |
Despite subsections (1) to (9), the registrar may on good cause, by agreement with an institution and without the intervention of the court, appoint a curator for the purpose set out in subsection (1). |
[Section 10(10) inserted by section 161(g) of Act No. 45 of 2013]
| (11) |
The terms of the appointment contemplated in subsection (10) must be set out in a letter of appointment issued by the registrar to the curator and— |
| (i) |
the powers and duties of the curator; and |
| (ii) |
the remuneration of the curator; and |
| (b) |
may include any other matter agreed upon between the registrar and the institution. |
[Section 5(11) inserted by section 161(g) of Act No. 45 of 2013]
| (12) |
The rights of any creditor or client of the institution are not affected by the appointment of a curator in terms of subsection (10). |
[Section 5(12) inserted by section 161(g) of Act No. 45 of 2013]
| (13) |
Subsections (6) and (7) apply to an appointment in terms of subsection (10). |
[Section 5(13) inserted by section 161(g) of Act No. 45 of 2013]
| (14) |
An appointment in terms of subsection (10) lapses— |
| (a) |
if the registrar after consultation with the curator withdraws the letter of appointment; or |
| (b) |
by order obtained at the instance of the institution in terms of subsection (9). |
[Section 5(14) inserted by section 161(g) of Act No. 45 of 2013]
Mandating Procedures of Provinces Act, 2008
