This is the version of this Act as it was from 1 November 2008 to 2 June 2013. Read the latest available version.
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Financial Institutions (Protection of Funds) Act, 2001
Act 28 of 2001
- Published in Government Gazette 22857 on 23 November 2001
- Assented to on 12 November 2001
- Commenced on 23 November 2001
- [This is the version of this document as it was from 1 November 2008 to 2 June 2013.]
- [Amended by Financial Services Laws General Amendment Act, 2008 (Act 22 of 2008) on 1 November 2008]
Introductory provisions
1. Definitions
In this Act, unless the context indicates otherwise—"administrative sanction" means a sanction contemplated in section 6D(2);[definition of “administrative sanction" inserted by section 41(a) of Act 22 of 2008]"applicant" means the registrar or the directorate that refers a person to the enforcement committee;[definition of "applicant" inserted by section 41(a) of Act 22 of 2008]"board" means the Financial Services Board established by section 2 of the Financial Services Board Act, 1990 (Act No. 97 of 1990);[definition of "board" inserted by section 41(a) of Act 22 of 2008]“company” includes a close corporation referred to in the Close Corporations Act, 1984 (Act No. 69 of 1984);"contravention" includes any non-compliance with any law;[definition of "contravention" inserted by section 41(b) of Act 22 of 2008]"determination" means the finding of the enforcement committee, the administrative sanction, the reasons for the imposition of such sanction and any ancillary order made by the enforcement committee under this Act;[definition of "determination" inserted by section 41(b) of Act 22 of 2008]"directorate" means the Directorate of Market Abuse referred to in section 83 of the Securities Services Act, 2004 (Act No. 36 of 2004);[definition of "directorate" inserted by section 41(b) of Act 22 of 2008]"enforcement committee" means the enforcement committee established in terms of section 10(3) of the Financial Services Board Act, 1990 (Act No. 97 of 1990);[definition of "enforcement committee" inserted by section 41(b) of Act 22 of 2008]“financial institution” means—(a)any person or institution referred to in the definition of ‘financial institution’ in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of 1990);1 or(b)any medical scheme contemplated in section 1 of the Medical Schemes Act, 1998 (Act No. 131 of 1998);“institution”, for the purposes of sections 5, 6, 9 and 10, means—(a)a financial institution;(b)any person, partnership, company or trust in which, or in the business of which, a financial institution or an unregistered person has or had a direct or indirect interest;(c)any person, partnership, company or trust which has or had a direct or indirect interest in a financial institution or unregistered person, or in the business of a financial institution or an unregistered person;(d)a participating employer in a pension fund organisation;(e)any person, partnership, company or trust that controls, manages or administers the affairs or part of the affairs of a financial institution or an unregistered person; or(f)any unregistered person;"law", for the purposes of—(a)section 6, means—(i)this Act;(ii)the Financial Services Board Act, 1990;(iii)the Inspection of Financial Institutions Act, 1998 (Act No. 80 of 1998);(iv)the Financial Services Ombud Schemes Act, 2004 (Act No. 37 of 2004);(v)an Act referred to in the definition of 'financial institution' in section 1 of the Financial Services Board Act, 1990;(vi)the Medical Schemes Act, 1998 (Act No. 131 of 1998);and any subordinate legislation, enactment or measure made under these Acts;(b)sections 6A to 6I, means the Financial Intelligence Act, 2001 (Act No. 38 of 2001), and the Acts referred to in paragraph (a)—(i)including any subordinate legislation, enactment or measure made under those Acts;(ii)excluding—(aa)the Medical Schemes Act, 1998;(bb)the Banks Act, 1990 (Act No. 94 of 1990);(cc)the Mutual Banks Act, 1993 (Act No. 124 of 1993); and(dd)the Co-operative Banks Act, 2007 (Act No. 40 of 2007);[definition of "law" inserted by section 41(c) of Act 22 of 2008]"nominee company" means a company, controlled by a financial institution, which—(a)is incorporated under the provisions of the Companies Act, 1973 (Act No. 61 of 1973);(b)has as its principal object to act as nominee for, or representative of, any person in the holding of any property in trust for such person or persons;(c)is precluded by its memorandum of association from incurring any liabilities other than those to the persons on whose behalf it holds assets, to the extent of their respective rights to, and interest in, such assets; and(d)has entered into an irrevocable written agreement with a financial institution which controls the company, and in terms of which such financial institution has undertaken to pay all the expenses of, and incidental to, its formation, operations and liquidation;"person" includes any institution, partnership or trust;[definition of "person" inserted by section 41(d) of Act 22 of 2008]“registrar” means—(a)the registrar as defined in any of the Acts referred to in paragraph (a) of the definition of ‘financial institution’ in section 1 of the Financial Services Board Act, 1990;(b)the executive officer defined in section 1 of the Financial Services Board Act, 1990; or(c)except for the purposes of sections 6A to 6I, the registrar of medical schemes referred to in section 1 of the Medical Schemes Act, 1998;[paragraph (c) substituted by section 41(e) of Act 22 of 2008]"respondent" means any person identified by the registrar or the directorate as having allegedly contravened a law;[definition of "respondent" inserted by section 41(f) of Act 22 of 2008]“trust property” means any corporeal or incorporeal, movable or immovable asset invested, held, kept in safe custody, controlled, administered or alienated by any person, partnership, company or trust for, or on behalf of, another person, partnership, company or trust, and such other person, partnership, company or trust is hereinafter referred to as the principal;“unregistered person” means any person, partnership, company or trust not registered, approved or otherwise authorised by the registrar under a relevant law to carry on the business of a financial institution, but who or which carries on such business or a business corresponding to a business normally carried on by a financial institution.Chapter 1
Funds and trust property held by financial institutions
2. Duties of persons dealing with funds of, and with trust property controlled by, financial institutions
A director, member, partner, official, employee or agent of a financial institution or of a nominee company who invests, holds, keeps in safe custody, controls, administers or alienates any funds of the financial institution or any trust property—3. Declaration of interest
4. Investment of trust property
Chapter 2
Enforcement
5. Appointment of curator
6. Powers of registrar
6A. Referral to enforcement committee
6B. Enforcement committee proceedings
6C. Hearing by enforcement committee
6D. Determination by enforcement committee
6E. Notification and enforcement of determination
6F. Appeal against determination
6G. Disclosure of determination
6H. Utilisation of administrative sanction
6I. Saving of rights
7. Declaration of certain practices as irregular or undesirable
8. Restriction on powers of registrar
Despite any other provision of this Act, the registrar may not act under section 5, 6, or 7 in respect of a stock exchange, financial exchange, member or stock-broker referred to in paragraph (a)(v) and (vi) of the definition of ‘financial institution’ in section 1 of the Financial Services Board Act, 1990, unless the registrar—9. Records and entries in books of account admissible in evidence
In any proceedings conducted in terms of this Act, the records and books of account of an institution, a nominee company or a trust administered by such institution are admissible as prima facie evidence of the matters, transactions and accounts recorded therein, if supported by an affidavit by a person who alleges in that affidavit that person—10. Offences
11. Repeal of laws
The laws mentioned in the Schedule are hereby repealed to the extent set out in the third column of the Schedule, subject to the provisions of section 13.12. Status of footnote
13. Transitional provision
Anything done or deemed to have been done under any provision of a law repealed by section 11 and which could be done under a provision of this Act, is deemed to have been done under the last-mentioned provision.14. Short title
This Act is called the Financial Institutions (Protection of Funds) Act, 2001.History of this document
01 June 2023
01 April 2018
28 February 2014
03 June 2013
Amended by
Financial Markets Act, 2012
Read this version
01 November 2008 this version
23 November 2001
12 November 2001
Assented to
Subsidiary legislation
Title | Numbered title |
---|---|
Guidelines on the Conduct of Curators, 2015 | Board Notice 56 of 2015 |
Cited documents 24
Legislation 24
Documents citing this one 87
Gazette 52
Judgment 23
Legislation 12
1. | Income Tax Act, 1962 | 1588 citations |
2. | Pension Funds Act, 1956 | 1508 citations |
3. | Long-term Insurance Act, 1998 | 295 citations |
4. | Financial Markets Act, 2012 | 208 citations |
5. | Collective Investment Schemes Control Act, 2002 | 137 citations |
6. | Financial Sector Regulation Act, 2017 | 116 citations |
7. | Credit Rating Services Act, 2012 | 26 citations |
8. | Determination of Fit and Proper Requirements, 2017 | |
9. | Guidelines on the Conduct of Curators, 2015 | |
10. | Regulations Relating to the Kwazulu-Natal Joint Municipal Pension Fund (Retirement), 2019 | |
11. | Regulations Relating to the Kwazulu-Natal Joint Municipal Pension Fund (Superannuation), 2019 | |
12. | Regulations Relating to the Kwazulu-Natal Joint Municipal Provident Fund, 2019 |