Act No. and year
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Short Title
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Extent of repeal or amendment
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Act No. 94 of 1990
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Banks Act, 1990
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| 1. | The amendment of section 1— |
| (a) | by the insertion in subsection (1) after the definition of "allocated capital and reserve funds" of the following definition: |
" 'Authority' means the Prudential Authority established in terms of section 32 of the Financial Sector Regulation Act;";
| (b) | by the deletion in subsection (1) of the definition of "board of review"; |
| (c) | by the insertion in subsection (1) after the definition of "company" of the following definition: |
" 'conduct standard’ has the same meaning ascribed to it in terms of section 1(1) of the Financial Sector Regulation Act;";
| (d) | by the insertion in subsection (1) after the definition of "fellow subsidiary" of the following definition: |
" 'Financial Sector Regulation Act’ means the Financial Sector Regulation Act, 2017;";
| (e) | by the deletion in subsection (1) of the definition of "prescribed"; |
| (f) | by the insertion in subsection (1) after the definition of "person" of the following definition: |
" 'prudential standard’ has the same meaning ascribed to it in terms of section 1(1) of the Financial Sector Regulation Act;";
| (g) | by the insertion in subsection (1) after the definition of "qualifying capital and reserve funds" of the following definition: |
" 'Register’ means the Financial Sector Information Register referred to in section 256 of the Financial Sector Regulation Act;";
| (h) | by the deletion in subsection (1) of the definition of "Registrar"; |
| (i) | by the insert ion in subsection (1) after the definition of "tier 2 unimpaired reserve funds" of the following definition: |
" 'Tribunal’ means the Financial Services Tribunal established in terms of section 219 of the Financial Sector Regulation Act;"; and
| (j) | by the addition of the following subsection: |
| "(3) | 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.". |
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| 2. | The insertion after section 1 of the following section: |
"Relationship between Act and Financial Sector Regulation Act
1A.
| (1) | Except as otherwise provided by this Act or the Financial Sector Regulation Act, the powers and duties of the Authority in terms of this Act are in addition to the powers and duties that it has in terms of the Financial Sector Regulation Act. |
| (2) | A reference in this Act to the Authority determining or publishing a matter by notice in the Gazette must be read as including a reference to the Authority determining or publishing the matter by notice published in the Register. |
| (3) | Unless expressly provided otherwise in this Act, or this Act requires a matter to be prescribed by regulation in terms of section 90, a reference in this Act to a matter being— |
| (a) | prescribed must be read as a reference to the matter being prescribed in a prudential standard or a conduct standard; or |
| (b) | determined must be read as a reference to the Authority determining the matter in writing and registering the determination in the Register. |
(4)
| (a) | Matters in respect of which regulations relating to banks may be prescribed in terms of this Act may also be made in prudential standards or conduct standards. |
| (b) | Regulations prescribed in terms of this Act that are in force immediately before the commencement of this subsection continue to be in force, but may be repealed by the Minister to allow for prudential or conduct standards to be made in terms of the Financial Sector Regulation Act, in respect of the subject matter of those regulations. |
| (c) | Paragraph (b) does not limit the powers of the Minister in terms of this Act to prescribe regulations. |
| (5) | A reference in this Act to an inspection or an investigation in terms of section 6 of this Act must be read as a reference to an investigation in terms of the Financial Sector Regulation Act, but not a reference to an inspection in terms of section 83 or 84 of this Act. |
(6)
| (a) | A reference in this Act to the Authority announcing or publishing information or a document on a web site must be read as a reference to the Authority publishing the information or document in the Register. |
| (b) | The Authority may also publish the information or document on its web site. |
| (7) | A reference in this Act to a prescribed fee must be read as a reference to the relevant fee determined in terms of section 237 and Chapter 16 of the Financial Sector Regulation Act. |
| (8) | A reference in this Act to a review of a decision of the Authority must be read as a reference to a reconsideration of the decision by the Tribunal in terms of the Financial Sector Regulation Act. |
(9)
| (a) | If any requirement in the Financial Sector Regulation Act is inconsistent with any provision of this Act, the requirement in the Financial Sector Regulation Act prevails. |
| (b) | If any requirement in a regulatory instrument made in terms of the Financial Sector Regulation Act is inconsistent with any provision of a regulatory instrument made in terms of this Act, the requirement in the regulatory instrument made in terms of the Financial Sector Regulation Act prevails.". |
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| 3. | The repeal of section 3. |
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| 4. | The deletion in section 4 of subsections (1) and (2). |
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| 5. | The substitution in section 5 for subsection (2) of the following subsection: |
| "(2) | Any delegation under subsection (1)(a) shall not prevent the exercise of the relevant power by the [Registrar personally] Authority.". |
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| 6. | The deletion in section 6 of subsections (1) and (2). |
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| 7. | The repeal of sections 8, 9 and 10. |
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| 8. | The amendment of section 23— |
| (a) | by the substitution for subsection (1) of the following subsection: |
| "(1) | The Registrar may subject to the provisions of section 24, in the case of a bank registered as such, [with the consent of the Governor and after consultation with the Minister and] by notice in writing to the institution concerned cancel, or suspend on such conditions as the Registrar may deem fit, such registration if the institution has not conducted any business as a bank during the period of six months commencing on the date on which the institution was registered as a bank."; |
| (b) | by the substitution in subsection (2) for the words preceding paragraph (a) of the following words: |
"The Registrar may, subject to the provisions of section 24, in the case of a bank registered as such, [after consultation with the Minister and] by notice in writing to the institution concerned cancel, or suspend on such conditions as the Registrar may deem fit, such registration if—"; and
| (c) | by the substitution for subsection (3) of the following subsection: |
| "(3) | The Registrar may, subject to the provisions of section 24, in the case of a bank registered as such, [after consultation with the Minister and] by notice in writing to the institution concerned cancel such registration if the institution has ceased to conduct the business of a bank or is no longer in operation.". |
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| 9. | The substitution in section 52 for subsection (1A) of the following subsection: |
| "(1A) | Notwithstanding subsection (1), the Registrar may, by [means of a circular contemplated in section 6(4)] notice published in the Register, determine circumstances and conditions in terms whereof an application contemplated in subsection (1) is not required.". |
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| 10. | The amendment of section 69A— |
| (a) | by the substitution for subsection (4) of the following subsection: |
| "(4) | A commissioner appointed under subsection (1) and any person or persons appointed under subsection (2) shall for the purpose of their functions in terms of this section have powers and duties in all respects corresponding to the powers and duties conferred or imposed [by sections 4 and 5 of the Inspection of Financial Institutions Act, 1998 (Act No. 80 of 1998), upon a registrar or an inspector contemplated in the Inspection of Financial Institutions Act, 1998] or an investigator in terms of the Financial Sector Regulation Act: Provided that for the purposes of this section, those powers extend to the associates of the bank. |
| [(a) | any reference to an "institution" or a "financial institution" in sections 4 and 5 of the Inspection of Financial Institutions Act, 1998, shall be deemed to be a reference to a bank under curatorship or any of its associates; and |
| (b) | any reference to ‘the registrar’ and ‘an inspector’ in sections 4 and 5 of the Inspection of Financial Institutions Act, 1998, shall be deemed to be a reference to the commissioner and any person appointed under subsection (2), respectively.]"; and |
| (b) | by the substitution for subsections (4) and (5) with the following subsections: |
| "(4) | A commissioner appointed under subsection (1) and any person or persons appointed under subsection (2) shall for the purpose of their functions in terms of this section have powers and duties in all respects corresponding to the powers and duties conferred or imposed by [sections 4 and 5 of the Inspection of Financial Institutions Act, 1998 (Act No. 80 of 1998), upon a registrar or an inspector contemplated in the Inspection of Financial Institutions Act, 1998] Part 4 of Chapter 9 of the Financial Sector Regulation Act: Provided that for the purposes of this section— |
| (a) | any reference to [an "institution" or a "financial institution" in sections 4 and 5 of the Inspection of Financial Institutions Act, 1998] Part 4 of Chapter 9 of the Financial Sector Regulation Act shall be deemed to be a reference to a bank under curatorship or any of its associates; and |
| (b) | any reference to ["the registrar"] "a financial sector regulator" and "an [inspector] investigator" in [sections 4 and 5 of the Inspection of Financial Institutions Act, 1998] Part 4 of Chapter 9 of the Financial Sector Regulation Act shall be deemed to be a reference to the commissioner and any person appointed under subsection (2), respectively. |
| (5) | When an investigation is made under this section and [section 4 of the Inspection of Financial Institutions Act, 1998 (Act No. 80 of 1998),] Part 4 of Chapter 9 of the Financial Sector Regulation Act applies, [subsection (1)(a) of that] section 136(1) of that Act shall [be deemed to have been amended as follows: |
| "(1) | In carrying out an investigation into the business, trade, dealings, affairs or assets and liabilities of a bank under curatorship, a commissioner may— |
| (a) | administer an oath or affirmation or otherwise examine any person who is, or formerly was, a director, servant, employee, partner, member or shareholder of the institution: Provided that the person examined, whether under oath or not, may have his or her legal adviser present at the examination: Provided further that on good cause shown the commissioner may direct that the proceedings under this paragraph shall be held in camera and not be accessible to the public;’] apply with the changes necessary in the context in respect of an inspection carried out in terms of subsection (1) and the commissioner may on good cause shown direct that the proceedings under this paragraph shall be held in camera and not be accessible to the public."; and |
| (c) | by the repeal of subsection (5A). |
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| 11. | The substitution in section 84 for subsection (5) of the following subsection: |
| "(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 4 and 5 of the Inspection of Financial Institutions Act, 1998 (Act No. 80 of 1998)] sections 136 to 138 of the Financial Sector Regulation Act, upon an [inspector] investigator contemplated in those sections, as if the repayment administrator were an [inspector] investigator and the person subject to the direction were a financial institution contemplated in those sections.". |
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| 12. | The deletion in section 90 of subsection (1)(e) and (g). |
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| 13. | The amendment of section 91— |
| (a) | by the substitution in subsection (1) for paragraph (b) of the following paragraph: |
| "(b) | contravenes or fails to comply with a provision of section 7(3), (4) or (5), 34, 35, [37(1),] 38(1), 39, 41, 42(1), 52(1) or (4), 53, 55, 58, 59, 60(5)(a), 60(5)(b), 61(2), 65, 66, 67, 70(2), (2A) or (2B), 70A, 72, 73, 75, 76, 77, 78(1) or (3), 79, 80, 84(1A) or 84(2),"; |
| (b) | by the deletion in subsection (4) of paragraph (c); and |
| (c) | by the deletion of subsections (6), (6A) and (7). |
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| 14. | The repeal of section 91A. |
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| 15. | The substitution for the expression "Registrar", wherever it occurs, of the expression "Authority". |
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| 16. | The amendment of the arrangement of sections— |
| (a) | by the insertion after item 1 of the following item: |
"1A. Relationship between Act and Financial Sector Regulation Act"; and
| (b) | by the substitution for item 4 of the following item: |
"4. Authority".
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