Securities Services Act, 2004 (Act No. 36 of 2004)Chapter I : Preliminary Provisions1. Definitions |
In this Act, unless the context indicates otherwise—
means any recommendation, guidance or proposal of a financial naturefurnished, by any means or medium, to a client or group of clients in respect of the buying and selling of listed securities and irrespective of whether or not such advice results in any such transaction being effected, but does not include—
| (a) | factual advice given merely— |
| (i) | on the procedure for entering into a transaction in respect of listed in relation to the description of listed securities; |
| (ii) | in reply to routine administrative queries; |
| (iii) | in the form of objective information about listed Securities; or |
| (iv) | by the display or distribution of promotional material; |
| (v) | securities; |
| (b) | an analysis or report on listed securities without any express or implied recommendation, guidance or proposal that any particular transaction in respect of the listed securities is appropriate to the particular investment objectives, financial situation or particular needs of a client; |
means the Financial Markets Advisory Board referred to in section 6;
means an auditor registered in terms of the Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of 1991);
means a person authorised by an exchange in terms of the, exchange rules to perform such securities services as the exchange rules may permit;
means a bank as defined in the Banks Act, 1990 (Act No. 94 of 1990), and a mutual bank as defined in the Mutual Banks Act, 1993 (Act No. 124 of 1993);
means the Financial Services Board established by section 2 of the Financial Services Board Act, 1990 (Act No. 97 of 1990);
means the board of appeal established by section 26 of the Financial Services Board Act, 1990 (Act No. 97 of 1990);
means a person who is licensed as a central securities depository under section 32;
in relation to a transaction or group of transactions in listed 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; |
| (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 is underwritten from the time of trade to the time of settlement; |
means a person licensed in terms of section 66 as a clearing house and appointed by an exchange to provide clearing house services to such exchange;
means either clearing services or settlement services or both clearing and settlement services provided to an exchange by a clearing house;
means any person who uses the services of an authorised user or a participant, as the case may be;
means the Companies Act, 1973 (Act No. 61 of 1973);
means the rules made by a central securities depository in accordance with this Act; "derivative instrument" means any-
| (a) | financial instrument; or |
| (b) | contract, |
that creates rights and obligations and that derives its value from the price or value, or the value of which may vary depending on a change in the price or value, of some other particular product or thing;
means a directive issued by a self-regulatory organisation in accordance with its rules;
means the Directorate of Market Abuse referred to in section 83;
includes created, recorded, transmitted or stored in digital or other intangible but visible form by electronic, magnetic, optical or any similar means;
means the enforcement committee established in terms of section 97;
means a person who constitutes, maintains and provides an infrastructure—
transferred by or on behalf of a seller;
| (a) | for bringing together buyers and sellers of securities; |
| (b) | for matching the orders for securities of multiple buyers and sellers; and |
| (c) | whereby a matched order for securities constitutes a transaction; |
means the rules made by an exchange in accordance with this Act;
means a person authorised to function as an exchange in terms of the laws of a country other than the Republic;
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; |
| (e) | any intermediary rendering the services contemplated in section 72(1)(d) of the Long-term Insurance Act, 1998 (Act No. 52 of 1998), or section 70(e) of the Short-term Insurance Act, 1998 (Act No. 53 of 1998); and |
| (f) | a bank; |
means the Financial Institutions (Protection of Funds) Act, 2001 (Act No. 28 of 2001);
means the Financial Services Board Act, 1990 (Act No. 97 of 1990);
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; |
means an indicator that reflects changes in the value of a group of securities on one or more exchange or external exchange;
means the Insider Trading Act, 1998 (Act No. 135 of 1998);
in relation to anything which, in terms of this Act must be done in writing, includes any such thing done in electronic form;
means an issuer of securities and, in Chapter IV, includes an issuer of money market instruments;
means securities included in the list of securities kept by an exchange in terms of section 12;
means—
| (a) | the giving of instructions, on behalf of another person, to buy or sell securities on behalf of that other person; |
| (b) | the buying or selling of securities on behalf of another person on the instructions of that other person; |
| (c) | an agreement to buy or sell securities on behalf of another person; |
| (d) | the furnishing of advice to any person in connection with the buying and selling of securities; or |
| (e) | the handling of another person’s funds intended for the purchase of securities on behalf of that other person; |
means the Minister of Finance;
means a person that acts as the registered holder of securities or an interest in securities on behalf of other persons;
means a person that holds in custody and administers securities or an interest in securities and that has been accepted in terms of section 34 by a central securities depository as a participant in that central securities depository;
means prescribed by the Minister by regulation;
means prescribed by the registrar by notice in the Gazette;
means the Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of 1991);
means the Registrar or Deputy Registrar of Securities Services referred to in section 5;
means a self-regulatory organisation or any other person who provides or who previously provided securities services;
means a regulation made under section 113;
| (a) | means— |
| (i) | shares, stocks and depository receipts in public companies and other equivalent equities, other than shares in a share block company as defined in the Share Blocks Control Act, 1980 (Act No. 59 of 1980); |
| (ii) | notes; |
| (iii) | derivative instruments; |
| (iv) | bonds; |
| (v) | debentures; |
| (vi) | 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 Registrar of Collective Investment Schemes in terms of section 65 of that Act; |
| (vii) | units or any other form of participation in a collective investment scheme licensed or registered in a foreign country; |
| (viii) | instruments based on an index; |
| (ix) | the securities contemplated in subparagraphs (i) to (viii) that are listed on an external exchange; and |
| (x) | an instrument similar to one or more of the securities contemplated in subparagraphs (i) to (ix) declared by the registrar by notice in the Gazette to be a security for the purposes of this Act; |
| (xi) | rights in the securities referred to in subparagraphs (i) to (x); |
| (b) | excludes— |
| (i) | money market instruments except for the purposes of Chapter IV; and |
| (ii) | any security contemplated in paragraph (a) specified by the registrar by notice in the Gazette; |
means services provided in terms of this Act in respect of—
| (a) | the buying and selling of securities; |
| (b) | the custody and administration of securities; |
| (c) | the management of securities by an authorised user; |
| (d) | the clearing of transactions in listed securities; and |
| (e) | the settlement of transactions in listed securities; |
means an exchange or a central securities depository;
means to discharge the obligations arising from a transaction in listed securities;
means a buyer or seller of listed securities who settles a transaction or any person appointed in terms of exchange rules by such buyer or seller to settle a transaction on behalf of such buyer or seller;
means a natural person who is a member of the South African Institute of Stockbrokers;
means the danger of a failure or disruption of the Republic’s financial system as a whole;
includes any measure prescribed by the Minister or by the registrar;
means a contract of purchase and sale of securities.