Financial Markets Act, 2012 (Act No. 19 of 2012)Chapter I : Preliminary Provisions1. Definitions and interpretation |
| (1) | In this Act, unless the context indicates otherwise- |
"advice"
means any recommendation, guidance or proposal of a financial nature furnished, by any means or medium, to a client or group of clients—
| (a) | in respect of the buying and selling of securities; |
| (b) | on any corporate action or other event affecting the rights or benefits in respect of securities; or |
| (c) | on the exercise or lapse of any right in respect of securities irrespective of whether or not such advice results in any such transaction being effected, but does not include— |
| (i) | factual advice given merely— |
| (aa) | on the procedure for entering into a transaction in respect of securities; |
| (bb) | on the procedure relating to a corporate action or other event affecting the rights or benefits in respect of securities; |
| (cc) | in relation to the description of securities; |
| (dd) | in reply to routine administrative queries; |
| (ee) | in the form of objective information about securities; or |
| (ff) | by the display or distribution of promotional material; |
| (ii) | an analysis or report on securities without any express or implied recommendation, guidance or proposal that any particular transaction in respect of the securities is appropriate to the particular investment objectives, financial situation or particular needs of a client; |
"appeal board"
[Definition deleted by section 290, item 1(a) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"associated clearing house"
means a clearing house that clears transactions in securities on behalf of one or more exchanges in accordance with the rules of the relevant exchange and that does not approve or regulate clearing members;
"attachment"
means a judicial act or process to freeze, restrict or impound the securities or interest in securities held in a central securities account or securities account, as the case may be, in order to enforce or satisfy a judgment or warrant of execution;
"Auditing Profession Act"
means the Auditing Profession Act, 2005 (Act No. 26 of 2005);
"auditor"
means an auditor registered in terms of the Auditing Profession Act;
"authorised user"
means a person authorised by a licensed exchange to perform one or more securities services in terms of the exchange rules, and includes an external authorised user, where appropriate;
means the Financial Sector Conduct Authority established in terms of section 56 of the Financial Sector Regulation Act;
[Definition inserted by section 290, item 1(b) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"bank"
means a bank as defined in the Banks Act, 1990 (Act No. 94 of 1990), a mutual bank as defined in the Mutual Banks Act, 1993 (Act No. 124 of 1993); or a co-operative bank as defined in the Co-operative Banks Act, 2007 (Act No. 40 of 2007);
"board"
[Definition deleted by section 290, item 1(c) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
means a clearing house that—
| (a) | interposes itself between counterparties to transactions in securities, becoming the buyer to every seller and the seller to every buyer and thereby ensuring the performance of open contracts; and |
| (b) | becomes a counterparty to trades with market participants through novation, an open offer system or through a legally binding agreement; |
[Definition inserted by section 290, item 1(d) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)
"central securities account"
means an account that reflects the number or nominal value of securities of each kind deposited and all entries made in respect of such securities, held by a licensed central securities depository for a participant or external central securities depository in the name of—
| (a) | a participant; |
| (b) | an external central securities depository; or |
| (c) | any other persons as determined in the depository rules; |
"central securities depository"
means a person who constitutes, maintains and provides an infrastructure for holding uncertificated securities which enables the making of entries in respect of uncertificated securities, and which infrastructure includes a securities settlement system;
"certificated securities"
means securities evidenced—
| (a) | in relation to securities issued by an issuer other than a public company, by a certificate or written instrument; or |
| (b) | in relation to securities issued by a public company, by a certificate; |
"clear"
in relation to a transaction or group of transactions in securities, means—
| (a) | to calculate and determine, before each settlement process- |
| (i) | the exact number or nominal value of securities of each kind to be transferred by or on behalf of a seller; and |
| (ii) | the amount of money to be paid by or on behalf of a buyer, to enable settlement of a transaction or group of transactions; or |
| (b) | where applicable, the process by means of which- |
| (i) | the functions referred to in paragraph (a) are performed; and |
| (ii) | the due performance of the transaction or group of transactions by the buyer and the seller is underwritten from the time of trade to the time of settlement, |
and "clearing" has a corresponding meaning;
"clearing house"
means a person who constitutes, maintains and provides an infrastructure to clear transactions in securities;
"clearing house directive"
means a directive issued by a licensed independent clearing house or a licensed central counterparty in accordance with its rules;
[Definition substituted by section 290, item 1(e) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"clearing house rules"
means the rules made by a licensed independent clearing house or a licensed central counterparty in accordance with this Act;
[Definition substituted by section 290, item 1(f) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"clearing member"
means—
| (a) | in relation to an associated clearing house, a person authorised by a licensed exchange with which it is associated to perform clearing services or settlement services or both clearing services and settlement services in terms of the exchange rules; |
| (b) | relation to a licensed independent clearing house or a licensed central counterparty, a person authorised by that independent clearing house to perfom clearing services or settlement services or both clearing services and settlement services in terms of the clearing house rules, |
and includes an external clearing member, where appropriate;
[Definition substituted by section 290, item 1(g) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"clearing services"
means services offered and activities performed by a clearing member in terms of the exchange rules or clearing house rules, as the case may be, to facilitate clearing of transactions in securities;
"client"
means any person to whom a regulated person provides securities services, and includes a person that acts as an agent for another person in relation to those services in which case it will include the agent or exclude the other person if the contractual arrangement between the parties indicates this to be the intention;
"Companies Act"
means the Companies Act, 2008 (Act No. 71 of 2008);
has the same meaning ascribed to it in terms of the Financial Sector Regulation Act;
[Definition inserted by section 290, item 1(h) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"confidential information"
means personal information that belongs to a person and is not generally available to or known by others;
"deposit"
means a deposit of securities, and includes a deposit by means of an entry in a securities account or a central securities account;
"depository directive"
means a directive issued by a licensed central securities depository in accordance with its rules;
"depository rules"
means the rules made by a licensed central securities depository in accordance with this Act;
"derivative instrument"
means any—
| (a) | financial instrument; or |
| (b) | contract, |
that creates rights and obligations and whose value depends on or is derived from the value of one or more underlying asset, rate or index, on a measure of economic value or on a default event;
"directive"
means a directive issued by the registrar in terms of section 6(4);
"directorate"
means the Directorate of Market Abuse referred to in section 85;
"document"
includes a book, record, security or account, and any information stored or recorded electronically, photographically, magnetically, mechanically, electro-mechanically or optically or in any other form;
"electronic"
includes created, recorded, transmitted or stored in digital or other intangible but visible form by electronic, magnetic, optical or any similar means;
"enforcement committee"
[Definition deleted by section 290, item 1(i) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"entry"
means an electronic recording of any issuance, deposit, withdrawal, transfer, attachment, pledge, cession in securitatem debiti or other instruction in respect of securities or an interest in securities;
"exchange"
means a person who constitutes, maintains and provides an infrastructure—
| (a) | for bringing together buyers and sellers of securities; |
| (b) | for matching bids and offers for securities of multiple buyers and sellers; and |
| (c) | whereby a matched bid and offer for securities constitutes a transaction; |
"exchange directive"
means a directive issued by a licensed exchange in accordance with its rules;
"exchange rules"
means the rules made by a licensed exchange in accordance with this Act;
"external authorised user"
means a foreign person who is authorised by a supervisory authority to perform a service or services similar to one or more securities services as defined in this Act and who is subject to the laws of a country other than the Republic, which laws-
| (a) | establish a regulatory framework equivalent to that established by this Act; and |
| (b) | are supervised by a supervisory authority; |
means a foreign person who is authorised by a supervisory authority to perform a function or functions similar to one or more of the functions of a central counterparty as set out in this Act and who is subject to the laws of a country other than the Republic, which laws—
| (a) | establish a regulatory framework equivalent to that established by this Act; and |
| (b) | are supervised by a supervisory authority; |
[Definition inserted by section 290, item 1(j) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"external central securities depository"
means a foreign person who is authorised by a supervisory authority to perform a function or functions similar to one or more of the functions of a central securities depository as set out in this Act and who is subject to the laws of a country other than the Republic, which laws—
| (a) | establish a regulatory framework equivalent to that established by this Act; and |
| (b) | are supervised by a supervisory authority; |
"external clearing house"
means a foreign person who is authorised to perform a function or functions similar to one or more of the functions of a clearing house in terms of the laws of a country other than the Republic, which laws—
| (a) | establish a regulatory framework equivalent to that established by this Act; and |
| (b) | are supervised by a supervisory authority; |
"external clearing member"
means a foreign person who is authorised by a supervisory authority to perform a service or services similar to one or more clearing services or settlement services as defined in this Act and who is subject to the laws of a country other than the Republic, which laws—
| (a) | establish a regulatory framework equivalent to that established by this Act; and |
| (b) | are supervised by a supervisory authority; |
"external exchange"
means a foreign person who is authorised by a supervisory authority to perform a function or functions similar to one or more of the functions of an exchange as set out in this Act and who is subject to the laws of a country other than the Republic, which laws-
| (a) | establish a regulatory framework equivalent to that established by this Act; and |
| (b) | are supervised by a supervisory authority; |
means each of the following:
| (a) | An external central counterparty; |
| (b) | an external central securities depository; |
| (c) | an external clearing house; |
| (d) | an external exchange; |
| (e) | an external trade repository; |
[Definition inserted by section 290, item 1(k) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"external participant"
means a foreign person who is authorised by a supervisory authority to perform a service or services similar to one or more of the services of a participant or an external central securities depository as set out in this Act, and who is subject to the laws of a country other than the Republic, which laws—
| (a) | establish a regulatory framework equivalent to that established by this Act; and |
| (b) | are supervised by a supervisory authority; |
"external trade repository"
means a foreign person who is authorised by a supervisory authority to perform a duty or duties similar to one or more of the duties of a trade repository as set out in this Act, and who is subject to the laws of a country other than the Republic, which laws—
| (a) | establish a regulatory framework equivalent to that established by this Act; and |
| (b) | are supervised by a supervisory authority; |
"financial institution"
means—
| (a) | any pension fund organisation registered in terms of the Pension Funds Act, 1956 (Act No. 24 of 1956), or any person referred to in section 13B of that Act administering the securities of such a pension fund or the disposition of benefits provided for in the rules of such a pension fund; |
| (b) | any friendly society registered in terms of the Friendly Societies Act, 1956 (Act No. 25 of 1956), or any person in charge of the management of the affairs of such a society; |
| (c) | any collective investment scheme as defined in section 1 of the Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002), or any manager or nominee in relation to such a scheme; |
| (d) | any long-term or short-term insurer registered as such under the Long-term Insurance Act, 1998 (Act No. 52 of 1998), or the Short-term Insurance Act, 1998 (Act No. 53 of 1998), respectively; and |
| (e) | a bank; |
"Financial Institutions (Protection of Funds) Act"
means the Financial Institutions (Protection of Funds) Act, 2001 (Act No. 28 of 2001);
"Financial Intelligence Centre Act"
means the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001);
"financial sector law"
has the same meaning ascribed to it in terms of section 1(1) of the Financial Sector Regulation Act;
[Definition inserted by section 290, item 1(l) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
means the Financial Sector Regulation Act, 2017
[Definition inserted by section 290, item 1(l) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"Financial Services Board Act"
[Definition deleted by section 290, item 1(m) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"foreign collective investment scheme"
means a scheme, in whatever form, carried on in a country other than the Republic, in pursuance of which members of the public—
| (a) | are invited or permitted to invest money or other assets in one or more groups of assets (whether called a portfolio or by any other name) of such scheme; |
| (b) | acquire an interest or undivided share (whether called a unit or by any other name) in such a group of assets upon such investment; and |
| (c) | participate proportionately in the income or profits and the risk derived from such investment; |
"Governor"
means the Governor of the South African Reserve Bank appointed in terms of section 4 or 6(1)(a) of the South African Reserve Bank Act, 1989 (Act No. 90 of 1989);
"independent clearing house"
means a clearing house that clears transactions in securities on behalf of any person in accordance with its clearing house rules, and authorises and supervises its clearing members in accordance with its clearing house rules;
[Definition substituted by section 290, item 1(n) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"‘index"
means an indicator that reflects changes in the value of a group of securities on one or more exchanges or external exchanges;
"insolvency administrator"
means a person authorised to administer an insolvency proceeding by a court or any national legislation, or the laws of a country other than the Republic, including a person authorised on an interim basis;
"insolvency proceeding"
means a judicial or administrative proceeding, or both, authorised in or by national legislation or the laws of a country other than the Republic, including an interim proceeding, in which the assets and affairs of a person are subject to the control or supervision by a court or an insolvency administrator for the purpose of reorganisation, business rescue, curatorship or liquidation, and includes, but is not limited to, any such proceeding under—
| (a) | the Companies Act; |
| (b) | the Insolvency Act, 1936 (Act No. 24 of 1936); |
| (c) | the Banks Act, 1990 (Act No. 94 of 1990); |
| (d) | the Financial Institutions (Protection of Funds) Act; and |
| (e) | the National Payment System Act; |
"in writing"
in relation to anything which must be done in writing in terms of this Act, includes electronic actions;
"inter-dealer broker"
means a person who acts as an intermediary between two authorised users or between an authorised user and another person in relation to the purchase and sale of securities;
"issuer"
means an issuer of securities and, in Chapter IV, includes an issuer of money market securities;
has the same meaning ascribed to it in terms of section 1(1) of the Financial Sector Regulation Act;
[Definition inserted by section 290, item 1(o) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"juristic person"
means a person incorporated in terms of the Companies Act, a foreign company or another form of body corporate;
means a central counterparty licensed under section 49;
[Definition inserted by section 290, item 1(p) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"licensed central securities depository"
means a central securities depository licensed under section 29;
means a central counterparty licensed under section 49;
[Definition inserted by section 290, item 1(p) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"licensed clearing house"
means a clearing house licensed under section 49;
[Definition inserted by section 290, item 1(q) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
means an external trade repository licensed under section 56A;
[Definition inserted by section 290, item 1(q) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"licensed exchange"
means an exchange licensed under section 9;
"licensed trade repository"
means a trade repository licensed under section 56;
"listing requirements"
means the requirements, determined by a licensed exchange and approved by the registrar, that must be met before a security may be included in the list of securities of that exchange, or be traded, or continue to be traded, on that exchange;
"listed securities"
means securities included in the list of securities kept by an exchange in terms of section 11;
"management of securities and funds"
means—
| (a) | to exercise discretion in buying or selling securities or in exercising any rights attached to those securities on behalf of another person; |
| (b) | the safeguarding of securities on behalf of another person; or |
| (c) | the safeguarding of another person’s funds intended for the purchase of securities on behalf of that other person; |
"market infrastructure"
means each of the following—
| (a) | a licensed central counterparty; |
| (b) | a licensed central securities depository; |
| (c) | a licensed clearing house; |
| (d) | a licensed exchange; |
| (e) | a licensed trade repository; |
[Definition substituted by section 290, item 1(r) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"Minister"
means the Minister of Finance;
"money market securities"
means money market instruments that are uncertificated securities reflected in an uncertificated securities register;
"National Payment System Act"
means the National Payment System Act, 1998 (Act No. 78 of 1998);
"nominal value"
means—
| (a) | in relation to securities other than shares in a public company, the fixed value assigned to a security by the issuer when it is first issued and is used to assess dividend, capital ownership or interest; or |
| (b) | in relation to shares in a public company— |
| (i) | prior to the conversion of shares issued with a nominal value or par value in accordance with the Companies Act, the fixed value assigned to a security by the issuer when it is first issued and is used to assess dividend, capital ownership or interest; or |
| (ii) | after the conversion of shares issued with a nominal value or par value in accordance with the Companies Act, the value of the shares calculated or determined in accordance with the manner prescribed under the Companies Act; |
"nominee"
means a person approved under section 76 to act as the holder of securities or of an interest in securities on behalf of other persons;
"official website"
[Definition deleted by section 290, item 1(s) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"participant"
means a person authorised by a licensed central securities depository to perform custody and administration services or settlement services or both, in terms of the depository rules, and includes an external participant, where appropriate;
[Definition substituted by section 290, item 1(t) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
means prescribed by the Minister by regulations, or by a conduct standard or a joint standard;
[Definition inserted by section 290, item 1(u) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"prescribed by the Minister"
[Definition deleted by section 290, item 1(v) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"prescribed by the registrar"
Definition deleted by section 290, item 1(v) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
means the authority established in terms of section 32 of the Financial Sector Regulation Act;
[Definition inserted by section 290, item 1(w) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
has the same meaning ascribed to it in terms of section 1(1) of the Financial Sector Regulation Act;
[Definition inserted by section 290, item 1(w) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
means the Financial Sector Information Register referred to in section 256 of the Financial Sector Regulation Act;
[Definition inserted by section 290, item 1(w) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"registrar"
means the Registrar and Deputy Registrar of Securities Services referred to in section 1A(1);
[Definition substituted by section 290, item 1(x) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"regulated person"
means—
| (a) | a licensed central counterparty; |
| (b) | a licensed central securities depository; |
| (c) | a licensed clearing house; |
| (d) | a licensed exchange; |
| (e) | a licensed trade repository; |
| (f) | an authorised user; |
| (g) | a clearing member; |
| (h) | a nominee; |
| (i) | a participant; |
| (j) | except for purposes of section 3(6), sections 74 and 75, sections 89 to 92, and sections 100 to 103, an issuer; |
| (k) | except for the purposes of sections 89 to 92, and sections 100 to 103, a licensed external central counterparty and a licensed external trade repository; or |
| (l) | any other person specified in regulations for this purpose; |
[Definition substituted by section 290, item 1(y) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"regulation"
means a regulation made under section 5 or 107;
"rules"
means exchange rules, depository rules or clearing house rules;
"safeguarding"
means the activities performed by an authorised user—
| (a) | for the purposes of holding securities or funds in custody on behalf of another person; or |
| (b) | where the authorised user is accountable to another person for a third party’s holding of securities or funds in custody on behalf of that other person, and includes the administration of matters incidental to those securities or funds; |
"securities"
means—
| (a) | listed and unlisted— |
| (i) | shares, depository receipts and other equivalent equities in public companies, other than shares in a share block company as defined in the Share Blocks Control Act, 1980 (Act No. 59 of 1980); |
| (ii) | debentures, and bonds issued by public companies, public state-owned enterprises, the South African Reserve Bank and the Government of the Republic of South Africa; |
| (iii) | derivative instruments; |
| (iv) | notes; |
| (v) | participatory interests in a collective investment scheme as defined in the Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002), and units or any other form of participation in a foreign collective investment scheme approved by the Authority in terms of section 65 of that Act; and |
[Paragraph (a)(v) substituted by section 290, item 1(z) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
| (vi) | instruments based on an index; |
| (b) | units or any other form of participation in a collective investment scheme licensed or registered in a country other than the Republic; |
| (c) | the securities contemplated in paragraphs (a)(i) to (vi) and (b) that are listed on an external exchange; |
| (d) | an instrument similar to one or more of the securities contemplated in paragraphs (a) to (c) prescribed by the registrar to be a security for the purposes of this Act; |
| (e) | rights in the securities referred to in paragraphs (a) to (d), but excludes— |
| (i) | money market securities, except for the purposes of Chapter IV; or if prescribed by the registrar as contemplated in paragraph (d); |
| (ii) | the share capital of the South African Reserve Bank referred to in section 21 of the South African Reserve Bank Act, 1989 (Act No. 90 of 1989); and |
| (iii) | any security contemplated in paragraph (a) prescribed by the registrar; |
"securities account"
means an account kept by—
| (a) | a participant or an authorised user for its own account or for a client; or |
| (b) | a nominee for a person for whom it acts as a nominee, |
which reflects the number or nominal value of securities of each kind held for its own account or on behalf of that client or person, as the case may be, and all entries made in respect of such securities;
"securities of the same kind"
means securities of the same class and issued by the same issuer;
"securities register"
means any register of securities required by any law to be established by an issuer and, in respect of securities issued in terms of the Companies Act, has the meaning assigned to it in section 1 of that Act;
"securities services"
means—
| (a) | the buying or selling of securities for own account or on behalf of another person as a business, a part of a business or incidental to conducting a business; |
| (b) | the use of the trading system or infrastructure of an exchange to buy or sell listed securities; |
| (c) | the furnishing of advice to any person; |
| (d) | the custody and administration of securities by a participant or nominee; |
| (e) | the management of securities and funds by an authorised user; |
| (f) | clearing services; or |
| (g) | settlement services; |
"senior management"
refers to the level of management that is directly accountable to the chief executive officer or to the person in charge of an entity, and includes the chief executive officer if that person is not a director of the entity;
"settle"
means—
| (a) | in respect of listed securities, other than listed derivative instruments, the completion of a transaction by effecting the transfer of a security in the relevant uncertificated securities registers and the payment of funds or any other consideration payable in respect of that transaction, through a settlement system as defined in the rules; or |
| (b) | in respect of a listed derivative instrument, the completion of a transaction by the fulfilment of all contractual obligations associated with the resultant position in the derivative instrument in accordance with the rules; or |
| (c) | in respect of unlisted securities, other than money market securities or derivative instruments, the crediting and debiting of the accounts of the transferee and transferor, respectively, with the aim of completing a transaction in securities and receipt of a notification that payment has been received, unless— |
| (i) | otherwise prescribed by the registrar; or |
| (ii) | the parties have appointed a licensed independent clearing house, a licensed central counterparty or a licensed central securities depository to settle a transaction, in which case it has the meaning assigned in paragraph (a); |
[Paragraph (c)(ii) substituted by section 290, item 1(zA) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
| (d) | in respect of money market securities, the completion of a transaction by effecting the transfer of a security in the relevant uncertificated securities registers and the payment of funds or any other consideration payable in respect of that transaction, through a settlement system as defined in the rules; |
| (e) | in respect of an unlisted derivative instrument, the completion of a transaction by the fulfilment of all contractual obligations associated with the resultant position in the derivative instrument, unless otherwise prescribed by the registrar; |
| (f) | in respect of other securities, the discharge of the obligations arising from a transaction in such securities, and "settling" or "settlement" has a corresponding meaning; |
"settlement services"
means any services offered and activities performed by an authorised user, a participant or a clearing member in terms of the relevant rules to facilitate settlement of transactions in securities;
"stockbroker"
means a natural person who is a member of the South African Institute of Stockbrokers;
"supervisory authority"
means a body designated in national legislation to supervise, regulate or enforce legislation or a similar body designated in the laws of a country other than the Republic to supervise, regulate or enforce legislation of that country;
"systemic risk"
means the danger of a failure or disruption of the whole or a significant or substantial part of the Republic’s financial system;
"this Act"
includes the regulations, rules, and any notices or directives issued, exemption granted, determinations made, requirements determined or conditions imposed by the registrar, that have general application;
"trade repository"
means a person who maintains a centralised electronic database of records of transaction data;
"transaction"
means a contract of purchase and sale of securities;
"transfer"
means the transfer of uncertificated securities or an interest in uncertificated securities by debiting the account in the uncertificated securities register from which the transfer is effected and crediting the account in the uncertificated securities register to which the transfer is effected in accordance with the depository rules, and in respect of securities issued in terms of the Companies Act, in the manner provided for in Part E of Chapter 2 of that Act;
means the Financial Services Tribunal established in terms of section 219 of the Financial Sector Regulation Act;
[Definition inserted by section 290, item 1(zB) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
"uncertificated securities"
means—
| (a) | securities that are not evidenced by a certificate or written instrument; or |
| (b) | certificated securities that are held in collective custody by a central securities depository or its nominee in a separate central securities account, |
and are transferable by entry without a certificate or written instrument;
"uncertificated securities register"
means the record of uncertificated securities administered and maintained by a participant or a licensed central securities depository, as determined in accordance with the depository rules, and, in respect of securities issued in terms of the Companies Act, has the meaning assigned to it in section 1 of that Act;
"unlisted securities"
means securities that are not—
| (a) | listed securities; or |
| (b) | listed on an external exchange; |
"website"
has the meaning set out in section 1 of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002); and
"withdraw"
means the conversion of uncertificated securities to certificated securities, and "withdrawal" has a corresponding meaning.
| (2) | For purposes of the definition of "insolvency proceeding", a proceeding referred to in that definition commences— |
| (a) | in relation to business rescue proceedings, as contemplated in section 132(1) of the Companies Act; |
| (b) | in relation to a judicial proceeding, other than a judicial proceeding under paragraph (a), on the filing at court of an application for an insolvency proceeding; and |
| (c) | in relation to an administrative proceeding, other than an administrative proceeding under paragraph (a), on the filing of a resolution by a company, or the appointment of an insolvency administrator, as the case may be, in accordance with national legislation or the laws of a country other than the Republic. |
| (3) | Where in this Act any supervisory authority is required to take a decision in consultation with the Authority, such decision requires the concurrence of the Authority. |
[Section 1(3) substituted by section 290, item 1(zC) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]
| (4) | Unless the context otherwise indicates, words and expressions not defined in subsection (1) have the same meaning ascribed to them in terms of the Financial Sector Regulation Act. |
[Section 1(4) inserted by section 290, item 1(zD) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice No. R. 99, GG 41433, dated 9 February 2018)]