| (1) | Simultaneously with the issuing of a direction under section 83(1), or as soon thereafter as may be practicable, the Authority shall by a letter of appointment signed by him or her appoint a person (hereinafter in this section referred to as the repayment administrator) to manage and control the repayment of money in compliance with the direction by the person subject thereto: Provided that the Authority may afford the person subject to the directive a reasonable period of time to devise and implement an alternative plan of action that is in the interests of the investors and to which the Authority has no objection. |
[Section 84(1) substituted by section 42(a) of Act No. 22 of 2013]
| (a) | The repayment administrator shall at the request of the Authority, as soon as may be practicable report to the Authority whether or not the person subject to the relevant direction is, in the repayment administrator's opinion, solvent, and if the repayment administrator finds that the person subject to the direction is insolvent, the repayment administrator shall comment on whether such person is technically or legally insolvent. |
[Section 84(1A)(a) substituted by section 42(b) of Act No. 22 of 2013]
| (b) | On appointment of a repayment administrator and whilst the person is subject to the relevant direction as contemplated in this section— |
| (i) | the repayment administrator shall recover and take possession of all the assets of the person subject to the relevant direction; and |
| (ii) | all actions, legal proceedings, the execution of all writs, summonses and other legal process against the person subject to the relevant direction shall be stayed and not be instituted or proceeded with without leave of the court and without also serving the legal process documentation on the Authority. |
[Section 84(1A)(b) substituted by section 42(b) of Act No. 22 of 2013]
| (c) | If the report referred to in paragraph (a) concludes that the person subject to the directive is insolvent, the Authority may, notwithstanding anything contrary contained in any law relating to liquidation or insolvency apply to a competent court for the winding-up in terms of the Companies Act or the sequestration in terms of the Insolvency Act, 1936 (Act No. 24 of 1936), as the case may be, of the person subject to the directive, and the Authority shall have the right to oppose any such application made by any other person. |
| (d) | The Master shall, subject to section 370 of the Companies Act, 1973 (Act No. 61 of 1973), appoint the person nominated by the Authority as liquidator or trustee. |
[Section 84(1A)(d) substituted by section 42(c) of Act No. 22 of 2013]
| (e) | Any written report to the Authority by an inspector appointed under section 83 or any report by a repayment administrator appointed in terms of this section is confidential and shall not be disclosed to any person: Provided that the Authority may, notwithstanding the provisions of section 33(1) of the South African Reserve Bank Act, 1989 (Act No. 90 of 1989), furnish such report to— |
[Words preceding the proviso to section 84(1A)(e) substituted by section 42(d) of Act No. 22 of 2013]
| (i) | the person subject to an inspection in terms of section 83 or that is subject to a directive in terms of section 84; |
| (ii) | a person or institution contemplated in section 89; |
| (iii) | a relevant division of the South African Police Services or the National Prosecuting Authority; |
| (iv) | any other person that can prove, to the satisfaction of the Authority, a legitimate interest in the matter and only upon payment of a prescribed fee and with the written consent of the person subject to the directive; or |
| (v) | any duly appointed provisional liquidator or provisional trustee of the person subject to the directive. |
| (f) | If the Authority has issued an instruction in terms of section 84(6) and a provisional liquidator or provisional trustee of the person subject to the direction is subsequently duly appointed, the Authority shall be regarded as a creditor of the person subject to the direction and the Authority shall have the same rights of a creditor in terms of the law relating to liquidation and insolvency. |
[Section 84(1A) inserted by section 28 of Act No. 20 of 2007]
| (2) | The Authority shall serve a copy of the letter of appointment referred to in subsection (1) upon the person subject to the relevant direction, and such person shall, with effect from the date of the letter of appointment, be prohibited from disposing of or otherwise dealing with such of the assets of such person as are specified in the letter of appointment, except with the written permission of the repayment administrator. |
[Section 84(2) substituted by section 42(e) of Act No. 22 of 2013]
| (3) | The repayment administrator shall act under the control of the Authority, and the repayment administrator may from time to time apply to the Authority for instructions in regard to any matter arising out of or in connection with the performance of his or her duties in terms of subsection (4). |
[Section 84(3) substituted by section 42(e) of Act No. 22 of 2013]
| (4) | It shall be the duty of the repayment administrator— |
[Words preceding section 84(4)(a) substituted by section 42(f) of Act No. 22 of 2013]
| (a) | to conduct such further investigation into the affairs or any part of the affairs of the person subject to the direction as the repayment administrator may deem necessary in order to establish— |
[Words preceding section 84(4)(a)(i) substituted by section 42(g) of Act No. 22 of 2013]
| (i) | the true amount of money unlawfully obtained by that person as contemplated in section 83(1); |
| (ii) | the identities of all persons from whom such money was so unlawfully obtained; |
| (iii) | where any such money or any assets into which such money was converted, is kept or can be located; or |
| (iv) | any other fact which in the opinion of the Authority or the repayment administrator needs to be established in order to facilitate the repayment of such money in terms of the relevant direction; |
[Section 84(4)(a)(iv) substituted by section 42(h) of Act No. 22 of 2013]
| (b) | to take all reasonable steps (including the liquidation of assets into which money unlawfully obtained as contemplated in section 83(1) has been converted) which may serve to expedite and ensure the repayment of money in accordance with the requirements of and within the period specified in the relevant direction; |
| (c) | to report the suspected commission by any person of any offence of which the repayment administrator becomes aware in the course of the performance of his duties as repayment administrator in terms of this section, to the responsible prosecuting authorities having jurisdiction in the area in which such offence is so suspected of having been committed; |
[Section 84(4)(c) substituted by section 42(i) of Act No. 22 of 2013]
| (d) | to perform any other function assigned to the repayment administrator by the Authority in connection with the finalization of the repayment of money in accordance with the relevant direction. |
[Section (4)(d) substituted by section 42(i) of Act No. 22 of 2013]
| (5) | For the purposes of the performance of the duties as set out in subsection (4), the repayment administrator shall, in relation to the person subject to the relevant direction and in relation to the affairs of that person, have the powers conferred by sections 136 to 138 of the Financial Sector Regulation Act, upon an investigator contemplated in those sections, as if the repayment administrator were an investigator and the person subject to the direction were a financial institution contemplated in those sections. |
[Section 84(5) substituted by section 290, item 11 in Schedule 4, of Act No. 9 of 2017]
| (6) | The repayment administrator shall in respect of the services rendered by him or her in terms of this section and the responsible inspector or inspectors shall in respect of an inspection referred to in section 83(1) conducted under section 12 of the South African Reserve Bank Act, 1989 (Act No. 90 of 1989), be paid such remuneration by the Authority as the Authority may determine, and the Authority may recover an amount equal to the remuneration so paid from the person subject to the direction or the inspection, as the case may be. |
[Section (6) substituted by section 42(j) of Act No. 22 of 2013]
| (7) | The repayment administrator shall hold office until the relevant direction has been fully complied with, but the Authority may at any time in writing withdraw the appointment of the repayment administrator on good cause shown, whereupon the repayment administrator shall vacate his office. |
[Section (7) substituted by section 42(j) of Act No. 22 of 2013]
| (a) | when requested by the repayment administrator to take an oath or to make an affirmation, refuses to do so; |
| (b) | without lawful excuse refuses or fails to answer to the best of his or her ability a question put to such person by the repayment administrator in the exercise of the repayment administrator’s powers or the performance of the repayment administrator’s duties, even though the answer may tend to incriminate that person; |
| (c) | wilfully furnishes the repayment administrator with any false information; |
| (d) | refuses or fails to comply to the best of his or her ability with any reasonable request made to such person by the repayment administrator in the exercise of the repayment administrator’s powers or the performance of the repayment administrator’s duties; |
| (e) | wilfully hinders the repayment administrator in the exercise of powers or the performance of duties of the repayment administrator; or |
| (f) | commits any other deed designed to obstruct, or to enable any person to evade, the repayment of money as required by a direction under section 83(1), |
shall be guilty of an offence: Provided that no answer given to a question put by the repayment administrator to a person in terms of this section and no information derived therefrom may be used against such person in any criminal proceedings.
[Section 84(8) substituted by section 42(j) of Act No. 22 of 2013]
