Banks Act, 1990 (Act No. 94 of 1990)Chapter V : Functioning of Banks and Controlling Companies with reference to Companies Act54. Amalgamations, mergers and arrangements |
[Section 54 heading substituted by section 24(a) of Act No. 22 of 2013]
| (1) | The Minister must consent, in writing and conveyed through the Authority, to— |
| (a) | an amalgamation, merger or arrangement referred to in Chapter 5 of the Companies Act and which involves a bank as one of the principal parties to the relevant transaction; and |
[Section 54(1)(a) substituted by section 24(b) of Act No. 22 of 2013]
| (b) | an arrangement for the transfer of more than 25 per cent of the assets, liabilities or assets and liabilities of a bank to another person: |
Provided that the 25 per cent referred to in paragraph (b) shall be calculated by aggregating the amount of the transferred assets, liabilities or assets and liabilities together with any previous transfer of assets, liabilities or assets and liabilities within the same financial year of the bank concerned: Provided further that the Minister's consent is granted beforehand.
[Section 54(1) substituted by section 13(a) of Act No. 20 of 2007]
| (1A) | Subsection (1)(b) shall not be applicable to the transfer of assets effected in accordance with a duly approved securitisation scheme. |
[Section 54(1A) inserted by section 13(b) of Act No. 20 of 2007]
| (1B) |
| (a) | No arrangement for the transfer of 25 per cent or less of the assets, liabilities or assets and liabilities of a bank to another person shall have legal force unless the consent of the Authority to the transaction in question has been obtained beforehand. |
| (b) | In the event that only assets are transferred and the amount of the transferred assets, together with any previous transfer of assets within the same financial year, aggregates to an amount that is less than 10 per cent of the total on-balance-sheet assets of the transferring bank, consent in terms of paragraph (a) is not required: Provided that the transferring bank notifies the Authority of such a transfer in writing beforehand. |
[Section 54(1B) inserted by section 13(b) of Act No. 20 of 2007]
| (1C) | Subsection (1B) shall not be applicable to the transfer of assets effected in accordance with a duly approved securitisation scheme. |
[Section 54(1C) inserted by section 13(b) of Act No. 20 of 2007]
| (1D) | This section does not apply to a bank in resolution. |
[Section 54(1D) inserted by section 7 of the Financial Sector Laws Amendment Act, 2021 (Act No. 23 of 2021), Notice No. 789, GG45825, dated 28 January 2022- effective 1 June 2023 per (b)(i) of Commencement Notice No. 3202, GG48294, dated 24 March 2023]
| (2) | The Minister shall not grant his or her consent referred to in subsection (1) unless— |
[Words preceding section 54(2)(a) substituted by section 36(a) of Act No. 19 of 2003]
| (a) | he or she is satisfied that the transaction in question will not be detrimental to the public interest; |
[Section 54(2)(a) substituted by section 36(a) of Act No. 19 of 2003]
| (b) | in the case of an amalgamation referred to in subsection (1), the amalgamation is an amalgamation of banks only; or |
| (c) | in the case of a transfer of assets, liabilities or assets and liabilities referred to in subsection (1), such transfer is effected to another bank or to a person approved by the Authority for the purposes of the said transfer. |
[Section 54(2)(c) substituted by section 13(c) of Act No. 20 of 2007]
| (2A) | The Authority shall not grant his or her consent referred to in subsection (1A) unless he or she is satisfied— |
| (a) | that the transaction in question will not be detrimental to the public interest; |
| (b) | that the transaction in question will not be contrary to the interests of the bank concerned or its depositors or the controlling company concerned; or |
| (c) | in the case of a transfer of assets, liabilities or assets and liabilities referred to in subsection (1B)(a), such transfer is effected to another bank or to a person approved by the Authority for the purpose of the said transfer. |
[Section 54(2A) inserted by section 13(d) of Act No. 20 of 2007]
| (3) | Upon the coming into effect of a transaction effecting the amalgamation of one bank with another bank as contemplated in subsection (2)(b), or effecting the transfer of such part of the assets, liabilities or assets and liabilities as approved in terms of subsection (1) or (1B) of one bank to another bank or person as contemplated in subsection (2)(c) or (2A)(c)— |
| (a) | all the assets and liabilities of the amalgamating banks or, in the case of such transfer of assets, liabilities or assets and liabilities as approved in terms of subsection (1) or (1B), respectively, those assets, liabilities or assets and liabilities of the transferor bank that are transferred in terms of the transaction, shall vest in and become binding upon the amalgamated bank or, as the case may be, the bank or person taking transfer of such assets, liabilities or assets and liabilities; |
| (b) | the amalgamated bank or, in the case of such transfer of all the assets and liabilities or a transfer of part of the assets, liabilities or assets and liabilities as approved in terms of subsection (1) or (1B), the bank or person taking transfer of such assets, liabilities or assets and liabilities, shall have the same rights and be subject to the same obligations as those which the amalgamating banks or, as the case may be, the transferor bank may have had or to which they or it may have been subject immediately before the amalgamation or transfer; |
| (c) | all agreements, appointments, transactions and documents entered into, made, drawn up or executed with, by or in favour of any of the amalgamating banks or, as the case may be, the transferor bank, and in force immediately prior to the amalgamation or transfer, but excluding such agreements, appointments, transactions and documents that, by virtue of the terms and conditions of the amalgamation or transfer, are not to be retained in force, shall remain of full force and effect and shall be construed for all purposes as if they had been entered into, made, drawn up or executed with, by or in favour of the amalgamated bank or, as the case may be, the bank or person taking transfer of the assets, liabilities or assets and liabilities in question; and |
| (d) | any bond, pledge, guarantee or instrument to secure future advances, facilities or services by any of the amalgamating banks or, as the case may be, by the transferor bank, which was in force immediately prior to the amalgamation or transfer, shall remain of full force and effect and shall be construed as a bond, pledge, guarantee or instrument given to or in favour of the amalgamated bank or, as the case may be, the bank or person taking transfer of such assets, liabilities or assets and liabilities, as security for future advances, facilities or services by that bank or person except where, in the case of such transfer, any obligation to provide such advances, facilities or services is not included in the transfer. |
[Section 54(3) substituted by section 13(e) of Act No. 20 of 2007]
| (4) | Any amalgamation or merger or any arrangement for the transfer of assets, liabilities or assets and liabilities, referred to in subsection (1) or (1B), excluding a transfer other than a transfer referred to in subsection (2)(c) or (2A)(c), shall be subject— |
[Words preceding section 54(4)(a) substituted by section 24(c) of Act No. 22 of 2013]
| (a) | to confirmation at a general meeting of shareholders of each of the banks concerned; or |
| (b) | in the case of a transaction effecting the transfer of assets, liabilities or assets and liabilities of one bank to another bank or a person as contemplated in subsection (2)(c) or (2A)(c), to confirmation at a general meeting of shareholders of the transferor bank and the bank or person taking transfer of such assets, liabilities or assets and liabilities, |
and the notice convening such a meeting shall contain or have attached to it the terms and conditions of the relevant agreement or arrangement.
[Section 54(4) substituted by section 13(f) of Act No. 20 of 2007]
| (5) | Notice of the passing of the resolution confirming, as contemplated in subsection (4), any amalgamation or merger or any arrangement, or any arrangement for the transfer of assets, liabilities or assets and liabilities referred to in subsection (1) or (1B), together with a copy of such resolution and the terms and conditions of the relevant agreement or arrangement, duly certified by the chairperson of the meeting at which such resolution was passed and by the secretary of the bank or person concerned, shall be sent to the Authority by each of the banks involved or, in the case of a transaction effecting the transfer of assets, liabilities or assets and liabilities of one bank to another bank or a person as contemplated in subsection (2)(c) or (2A)(c), by the relevant transferor bank and the bank or person taking transfer of such assets, liabilities or assets and liabilities, and after having received such notices from all the parties to the relevant agreement or arrangement, the Authority shall register those notices. |
[Section 54(5) substituted by section 24(d) of Act No. 22 of 2013]
| (6) | Upon the registration by the Authority of the notices referred to in subsection (5)— |
| (a) | of any amalgamation of two or more banks, the registration of the individual banks which were parties to the amalgamation shall be deemed to be cancelled and the Authority shall withdraw those registrations and, on payment by the bank created by the amalgamation of the prescribed registration fee, register such bank, subject mutatis mutandis to the provisions of section 18, as a bank; |
[Section 54(6)(a) substituted by section 36(c) of Act No. 26 of 1994]
| (b) | of any arrangement for the transfer of all the assets and liabilities of a bank, the registration of such bank shall be deemed to be cancelled and shall be withdrawn by the Authority. |
| (7) | Upon registration of a bank by the Authority in terms of subsection (6), he or she shall issue a certificate of registration to the bank concerned. |
[Section 54(7) substituted by section 36(b) of Act No. 19 of 2003]
| (8) | The Commissioner, every Master of the High Court and every officer or person in charge of a deeds registry or any other office, if, in the office of such Commissioner, Master, officer or person or any register under the control of such Commissioner, Master, officer or person there— |
[Words preceding section 54(8)(a) substituted by section 24(e) of Act No. 22 of 2013]
| (a) | is registered any title to property belonging to, or any bond or other right in favour of, or any appointment of or by; |
| (aA) | is registered any share, stock, debenture or other marketable security in favour of; or |
| (b) | has been issued any licence to or in favour of, |
any bank which has amalgamated with any other bank, or any bank which has transferred all or part of its assets, liabilities or assets and liabilities referred to in subsection (1) or (1B), to any other bank or person, shall, if satisfied—
| (i) | that the Minister has consented in terms of subsection (1) to the amalgamation or transfer or that the Authority has consented in terms of subsection (1B) to the transfer; and |
| (ii) | that such amalgamation or transfer has been duly effected, |
and upon production to such Commissioner, Master, officer or person of any relevant deed, bond, share, stock, debenture, certificate, letter of appointment, licence or other document, make such endorsements thereon and effect such alterations in the registers of such Commissioner, Master, officer or person as may be necessary to record the transfer of the relevant property, bond or other right, share, stock, debenture, marketable security, letter of appointment or licence and of any rights thereunder to the amalgamated bank or, as the case may be, to the bank or person that has taken transfer of the said assets, liabilities or assets and liabilities in question.
[Words following section 54(8)(ii) substituted by section 24(f) of Act No. 22 of 2013]
[Section 54(8) substituted by section 13(h) of Act No. 20 of 2007]
| (8A) | No transfer duty, securities transfer tax, registration fees, licence duty or other charges shall be payable in respect of— |
| (a) | a transfer contemplated in subsection (8) taking place in the execution of a transaction entered into at the instance of the Authority in the interest of the effective supervision of banks or the maintenance of a stable banking sector; or |
| (b) | any endorsement or alteration made to record such transfer, |
upon submission to the Commissioner, or the Master, officer or person referred to in subsection (8), as the case may be, of a written confirmation by the Registrar of Banks that the Minister, on the recommendation of the last-mentioned Authority and after consultation with the Commissioner of the South African Revenue Service has consented to the waiver of such tax, fees or charges.
[Words following section 54(8A)(b) substituted by section 24(g) of Act No. 22 of 2013]
| (9) | The provisions of this section shall not affect the rights of any creditor of a bank which has amalgamated with or transferred all or part of its assets, liabilities or assets and liabilities referred to in subsections (1) and (1B) to any other bank or person or taken over all or part of the assets, liabilities or assets and liabilities in question of any other bank, except to the extent provided in this section. |
[Section 54(9) substituted by section 13(i) of Act No. 20 of 2007]
| (10) | [Section 54(10) deleted by section 24(h) of Act No. 22 of 2013] |
| (11) | Notwithstanding anything to the contrary contained in— |
| (a) | Chapter 5 of the Companies Act; or |
[Section 54(11)(a) substituted by section 24(i) of Act No. 22 of 2013]
| (b) | the Fundamentals Transactions and Takeover Regulations contained in Chapter 5 of the Companies Regulations, 2011, published under Government Notice No. R. 351 in Government Gazette No. 34239 on 26 April 2011, |
[Section 54(11)(b) substituted b y section 24(i) of Act No. 22 of 2013]
| (c) | [Section 54(11)(c) deleted by section 24(j) of Act No. 22 of 2013] |
neither the Takeover Regulation Panel established by section 196 of the Companies Act nor its executive committee or its executive director shall furnish any clearance, decision or ruling in respect of a matter submitted to it or such executive director in terms of the provisions of Chapter 5 of the Companies Act and the Takeover Regulations and which matter relates to an affected transaction, as defined in section 117 of the Companies Act involving—
| (i) | [Subparagraph (11)(i) deleted by section 36 of Act No. 26 of 1994]; or |
| (ii) | an acquisition of shares in a bank or controlling company for which permission under section 37(2)(a)(i), (ii), (iii) or (iv) is a prerequisite, |
unless the person submitting the matter in question has furnished the said panel, executive committee or executive director with written proof that such exemption or permission, as the case may be, has in fact been obtained.