| (1) | Subject to the provisions of subsection (6), no person shall acquire in a bank or controlling company— |
| (a) | shares of which the total nominal value or voting rights in respect of the issued shares of such bank or controlling company that are exercisable by such person; or |
| (b) | shares of which the total nominal value together with the total nominal value of such shares already held by such person or the voting rights in respect of the issued shares of such bank or controlling company that is exercisable by such person together with the voting rights attached to the shares of such bank or controlling company that are already held and exercisable by such person; or |
| (c) | shares of which the total nominal value together with the total nominal value of such shares already held by such person and by the associate or associates of such person or the voting rights in respect of the issued shares of such bank or controlling company that are exercisable by such person together with the voting rights attached to the shares of such bank or controlling company that are already held and exercisable by such person and by the associate or associates of such person, |
amount to more than 15 per cent of the total nominal value or the total voting rights in respect of all the issued shares of the bank or controlling company, without first having obtained permission in accordance with the provisions of subsection (2) for such acquisition.
[Section 37(1) substituted by section 9(a) of Act No. 20 of 2007]
| (a) | If, subject to the provisions of paragraph (c)— |
| (i) | any person has for a period of 12 months or such shorter period as the Authority may deem fit held so many shares in or the voting rights in respect of the issued shares of a bank or controlling company as such person may in accordance with the provisions of subsection (1) hold therein, such person may, if the Authority has granted permission in writing thereto, acquire more than 15 percent, but not exceeding 24 percent, of those shares or the voting rights in respect of the issued shares as contemplated in the said subsection; |
| (ii) | the said person has for a period of 12 months or such shorter period as the Authority may deem fit held 24 percent of those shares or the voting rights in respect of the issued shares as so contemplated such person may, if the Authority has granted permission in writing thereto, acquire more than 24 percent, but not exceeding 49 percent, of those shares or the voting rights in respect of the issued shares as contemplated in the said subsection (1); |
| (iii) | the said person has for a period of 12 months or such shorter period as the Minister may deem fit held 49 percent of those shares or the voting rights in respect of the issued shares as contemplated in the said subsection (1) such person may, if the Minister has, through the Authority, granted permission thereto in writing, acquire more than 49 percent, but not exceeding 74 percent, of those shares or the voting rights in respect of the issued shares as contemplated in the said subsection; and |
| (iv) | the said person has for a period of 12 months or such shorter period as the Minister may deem fit held 74 percent of those shares or the voting rights in respect of the issued shares as contemplated in the said subsection (1) such person may, if the Minister has, through the Authority, granted permission thereto in writing, acquire more than 74 percent of those shares or the voting rights in respect of the issued shares, as contemplated in the said subsection. |
[Section 37(2)(a) substituted by section 9(b) of Act No. 20 of 2007]
| (b) | In considering granting permission in terms of paragraph (a) the Authority or the Minister, as the case may be, may consult with the Competition Commission established in terms of the Competition Act, 1998 (Act No. 89 of 1998). |
| (c) | Notwithstanding the provisions of paragraph (a), the Authority or the Minister, as the case may be, may, if in a particular case the Authority or the Minister, as the case may be, deems it fit to do so, grant permission for the acquisition of shares or the voting rights in respect of the issued shares, as contemplated in subparagraph (i), (ii), (iii) or (iv) of paragraph (a) without the applicant for such permission having held shares or the voting rights in respect of the issued shares, for the period of 12 months or any shorter period as required in any of the said subparagraphs. |
[Section 37(2)(c) substituted by section 9(c) of Act No. 20 of 2007]
[Section 37(2) substituted by section 25(b) of Act No. 19 of 2003]
| (3) | If any person at the commencement of the Banks Amendment Act, 2007, already holds more than 15 per cent of the voting rights in respect of the issued shares in a bank or controlling company as contemplated in subsection (1), such person may not acquire more of the voting rights in respect of the issued shares as contemplated in the said subsection before such person has obtained the appropriate permission in terms of subsection (2). |
[Section 37(3) substituted by section 9(d) of Act No. 20 of 2007]
| (4) | Permission in terms of subsection (2) for the acquisition of shares or the voting rights in respect of the issued shares in a bank or controlling company shall not be granted unless the Authority or the Minister, as the case may be, is satisfied that the proposed acquisition of shares or the voting rights in respect of the issued shares— |
[Words preceding section 37(4)(a) substituted by section 9(e) of Act No. 20 of 2007]
| (a) | will not be contrary to the public interest; and |
| (b) | will not be contrary to the interests of the bank concerned or its depositors or of the controlling company concerned, as the case may be. |
| (5) | If, in the case of a shareholding contemplated in— |
| (a) | subsection 2(a)(i) and (ii), the Authority; or |
| (b) | subsection (2)(a)(iii) and (iv), the Minister, |
is of the opinion that the retention of such shareholding or voting rights in respect of the issued shares in a bank or controlling company by a particular shareholder will be to the detriment of the bank or controlling company concerned, the Authority or the Minister, as the case may be, may by way of application on notice of motion apply to the division of the High Court in whose area of jurisdiction the head office of the bank or Controlling company is situated, for an order—
| (i) | compelling such shareholder to reduce, within a period determined by the court, the shareholding or voting rights in respect of the issued shares of that person in that bank or controlling company to a shareholding or voting rights in respect of the issued shares, as contemplated in subsection (1), with a total nominal value of not more than 15 per cent of the total nominal value of all the issued shares or voting rights in respect of the issued shares of that bank or controlling company; and |
| (ii) | limiting, with immediate effect, the voting rights that may be exercised by such shareholder by virtue of shareholding of that person to 15 per cent of the voting rights attached to all the issued shares of the bank or controlling company concerned. |
[Section 37(5) substituted by section 9(f) of Act No. 20 of 2007]
| (6) | The provisions of subsection (1) shall not apply to the acquisition of shares or voting rights in respect of the issued shares in a bank by a controlling company registered as such in respect of that bank. |
[Section 37(6) substituted by section 9(g) of Act No. 20 of 2007]
| (7) | For the purposes of this section "associate"— |
| (a) | in relation to a natural person, means— |
| (i) | a close relative of that person; or |
| (ii) | any person who has entered into an agreement or arrangement with the first-mentioned person, relating to the acquisition, holding or disposal of, or the exercising of voting rights in respect of, shares in the bank or controlling company; |
| (b) | in relation to a juristic person— |
| (i) | which is a company, means any subsidiary or holding company of that company, any other subsidiary of that holding company and any other company of which that holding company is a subsidiary; |
| (ii) | which is a close corporation registered under the Close Corporations Act, 1984 (Act No. 69 of 1984), means any member thereof as defined in section 1 of that Act; |
| (iii) | which is not a company or a close corporation as contemplated in this paragraph, means another juristic person which would have been a subsidiary of the first-mentioned juristic person— |
| (aa) | had such first-mentioned juristic person been a company; or |
| (bb) | in the case where that other juristic person, too, is not a company, had both the first-mentioned juristic person and that other juristic person been a company; |
| (iv) | means any person in accordance with whose directions or instructions the board of directors of or, in the case where such juristic person is not a company, the governing body of such juristic person is accustomed to act; and |
| (c) | in relation to any person— |
| (i) | means any juristic person of which the board of directors or, in the case where such juristic person is not a company, of which the governing body is accustomed to act in accordance with the directions or instructions of the person first-mentioned in this paragraph; and |
| (ii) | includes any trust controlled or administered by that person. |
[Section 37(7) substituted by section 30 of Act No. 26 of 1994]
