To amend the Deposit-taking Institutions Act, 1990, so as to substitute for the expression "deposit-taking institution" or any derivative thereof, wherever that expression or derivative appears in the said Act, the word "bank" or the appropriate derivative thereof; to further define the expression "the business of a bank"; to create criteria according to which it can be established whether or not a particular person is a fit and proper person to hold the office of a director or an executive officer of a bank or a controlling company; to allow a right of appeal to the board of appeal against a decision of the Registrar of Banks in connection with an application for authorization to establish a bank; to compel the Registrar of Banks to give notice in the Gazette of every consent granted by him to the establishment in the Republic of a representative office of a foreign institution; to provide for the submission of a written report to the Registrar of Banks regarding the advisability of the continuation of the curatorship of a bank that is under curatorship; to further define the expressions "primary share capital", "primary unimpaired reserve funds", "secondary share capital" and "secondary unimpaired reserve funds", respectively; to substitute the expression "debt instruments" for the word "debentures" in section 70; to make further provision in connection with the minimum share capital and unimpaired reserve funds to be maintained by a subsidiary by way of which a bank or controlling company conducts the business of a bank in a country other than the Republic; to repeal the provisions relating to the maintenance by banks of a minimum reserve balance with the South African Reserve Bank, in view of the insertion of corresponding provisions in the South African Reserve Bank Act, 1989; to render the acquisition by a bank or an associate thereof of more than 49 per cent of the issued shares of a registered insurer subject to approval by the Registrar of Banks; and to prescribe a penalty for a further offence; and to provide for matters connected therewith.
Amendment of section 1 of Act 94 of 1990, as amended by Government Notice No. R.1765 of 30 July 1991 and section 1 of Act 42 of 1992 1.
"(a) Reserve Bank notes, subsidiary coin (excluding such notes or coin to the extent to which it is taken into account in the calculation of the minimum reserve balance a bank is required to maintain in an account with the Reserve Bank in terms of section 10A of the South African Reserve Bank Act, 1989 (Act No.
of the definition of "liquid assets".
the diligence with which the person concerned is likely to fulfil those responsibilities.
had taken part in any business practices that, in the opinion of the Registrar, were deceitful, prejudicial or otherwise improper (whether unlawful or not) or which otherwise brought discredit on his methods of conducting business; or had taken part in or been associated with any such other business practices as would, or had otherwise conducted himself in such a way as to, cast doubt on his competence and soundness of judgement.
The Registrar shall be entitled to request any person to complete a questionnaire that is designed to enable the Registrar to form an opinion, as contemplated in this subsection, regarding the qualities of that person.
"(a) The Minister may, on the recommendation of the Registrar and after consultation with the Governor of the Reserve Bank, by regulation amend the definitions definition of "deposit" "deposit-taking institution" and or "the business of a deposit-taking institution bank" for the purposes of the application of any of or all the provisions of this Act.".
Substitution of section 3 of Act 94 of 1990 2.
For the registration as banks of institutions as deposit-taking institutional public companies desiring to conduct the business of a bank and for the other purposes of this Act there shall, as part of the Reserve Bank, be an office in Pretoria called the Office for Deposit-taking institutional Banks, and at the head of such office shall be a person to be styled the Registrar of Deposit-taking Institutional Banks.
Amendment of section 7 of Act 94 of 1990 3.
"(b) direct such institution bank, controlling company or subsidiary to furnish the Registrar with a report by a public accountant as defined in section 1 of the Public Accountants' and Auditors' Act, 1951 (Act No. 51 of 1951) 1991 (Act No. 80 of 1991), or by any other person with appropriate professional skill, on any matter, or any aspect of any matter, about which the Registrar has directed or may direct under paragraph (a) the institution bank, controlling company or subsidiary to furnish information.".
Amendment of section 9 of Act 94 of 1990, as amended by section 2 of Act 42 of 1992 4.
"(1) Subject to the provisions of section 13(4), any Any person aggrieved by a decision taken by the Registrar under a provision of this Act may within the prescribed period and in the prescribed manner and upon payment of the prescribed fees appeal against such decision to the board of appeal established by subsection (2)."
one shall be a person registered as an accountant and auditor under section 23 15 of the Public Accountants' and Auditors' Act, 1951 (Act No. 51 of 19511 1991 (Act No. 80 of 1991), and who in the opinion of the Minister has wide experience of, and is knowledgeable about the latest developments in, the accountants' and auditors' profession.
Amendment of section 12 of Act 94 of 1990 5.
"(b) a report by a public accountant as defined in section 1 of the Public Accountants' and Auditors' Act, 1951 (Act No. 51 of 1951) 1991 (Act No. 80 of 1991), or by any other knowledgeable person approved by the Registrar, on such aspects relating to the application in question,".
Amendment of section 13 of Act 94 of 1990 6.
Amendment of section 22 of Act 94 of 1990 7.
of which the formation has been approved by the Registrar in terms of section 15, may be formed under a name which includes the word "bank" or the words "deposit-taking institution" or "building society", or a derivative thereof; or whose application for provisional registration as a deposit- taking institution bank has been granted by the Registrar under section 17 and which has not been formed in accordance with paragraph (a) of this subsection under a name which already includes the word "bank" or the words "deposit-taking institution" or "building society", or a derivative thereof, may before its provisional registration take the necessary steps in accordance with the Companies Act to include such word, words or derivative in its name."
"The Registrar may in writing direct a company referred to in subsection (6) whose name includes the word "bank" or the words "deposit-taking institution" or "building society", or any derivative thereof, to remove such word, words or derivative from its name-".
Substitution of section 30 of Act 94 of 1990 8.
of every consent to the establishment in the Republic of a representative office of a foreign institution which has been granted by him in terms of section 34.
Substitution of section 33 of Act 94 of 1990 9.
in the case of an institution that has so been provisionally registered as a deposit-taking institution, be provisionally registered as a bank; and in the case of an institution that has so been finally registered as a deposit-taking institution, be finally registered as a bank, by the Registrar in terms of the provisions of this Act as so amended, as soon as is practicable after the said date of commencement.
The Registrar shall when complying with the provisions of subsection (1) issue to the institution in question a certificate of provisional or final registration as a bank, as the case may be.
The reregistration of an institution in terms of this section shall in the case of a provisional registration be for the unexpired portion of the period of the institution's former provisional registration as a deposit-taking institution.
Upon the reregistration of an institution in terms of this section its previous registration as a deposit-taking institution shall be deemed to have lapsed and any certificate of registration issued in respect thereof shall be deemed to have been cancelled.
No fees shall be payable in respect of a reregistration in terms of this section.
Amendment of section 44 of Act 94 of 1990 10.
"(7) A public company which on the date immediately preceding the date of commencement of the Deposit-taking Institutions Amendment Act. 1993 (hereinafter in this subsection referred to as the Amendment Act), is, in terms of the provisions of this Act as those provisions existed prior to the amendment thereof by the Amendment Act, registered as a controlling company in respect of a deposit-taking institution, shall, with effect from the date of the reregistration of the deposit-taking institution concerned as a bank in terms of section 33, be deemed to be a controlling company registered as such in terms of this section in respect of the bank as so reregistered.".
Amendment of section 51 of Act 94 of 1990 11.
"The Minister may with the concurrence of the Minister of Trade and Industry and Tourism by notice in the Gazette declare that a provision of the Companies Act specified in such notice-".
Amendment of section 54 of Act 94 of 1990, as substituted by section 6 of Act 42 of 1992 12.
that the Minister has in terms of subsection (1) consented to the amalgamation or transfer; and that such amalgamation or transfer has been duly effected, and upon the production to him of any relevant deed, bond, certificate, letter of appointment, licence or other document, make such endorsements thereon and effect such alterations in his registers as may be necessary to record the transfer thereof and of any rights thereunder to the amalgamated institution bank or, as the case may be, the institution bank which has so taken over the said assets and liabilities.
"(9) The provisions of this section shall not affect the rights of any creditor of a deposit-taking institution bank which has amalgamated with or transferred all its assets and liabilities toany other such institution bank or taken over all the assets and liabilities of any other such institution bank, except to the extent provided in this section."
"(10) The conditions and any tax benefit which immediately prior to the date of a transfer, referred to in this section, of assets and liabilities were applicable in respect of an investment, referred to in section 10(1)(i)(xii), (xiiA) or (xiii), 10(1)(v),(vA) or (w) or 19(5A) of the Income Tax Act, 1962 (Act No. 58 of 1962), with the transferor deposit-taking institution bank shall, notwithstanding such a transfer of assets and liabilities but subject to the provisions of the said Act, remain applicable to the investment until the expiration of a period of ten years as from the date on which it was initially made or until it is redeemed, whichever occurs first.".
Amendment of section 59 of Act 94 of 1990 13.
is a domestic shareholder, if the address entered in respect of such 2 shareholder in the register of members referred to in section 105 of the Companies Act is an address in the Republic; and is not an associate of any other shareholder of the institution bank or controlling company.
Amendment of section 61 of Act 94 of 1990 14.
"(2) A deposit-taking institution bank shall within 30 days of the appointment in accordance with the provisions of Chapter X of the Companies Act of a person as auditor of that institution thereof, apply to the Registrar on the prescribed form for his approval of such appointment.".
Amendment of section 63 of Act 94 of 1990, as amended by section 7 of Act 42 of 1992 15.
"Notwithstanding anything to the contrary contained in the Public Accountants' and Auditors' Act, 1951 (Act No. 51 of 1951) 1991 (Act No. 80 of 1991), or the Companies Act, but subject to the provisions of subsections (2) and (3) of this section, the auditor referred to in section 61 or 62-".
Amendment of section 68 of Act 94 of 1990 16.
"(a) the Registrar shall have the right to apply to a competent court for the winding-up of any deposit-taking institution bank or for an order placing any such institution bank under judicial management in terms of the said Act, and the Registrar shall have the right to oppose any such application made by any other person; and".
Amendment of section 69 of Act 94 of 1990, as amended by section 8 of Act 42 of 1992 17.
"(6A) While a bank is under curatorship the curator shall, on the expiration of a period of one year as from the date of his appointment as such and thereafter biannually upon the expiration of every period of six months, furnish the Registrar with a written report in which it is stated whether or not, in the opinion of the curator, it is in the interest of the depositors of the bank concerned that the bank remains under curatorship.".
Amendment of section 70 of Act 94 of 1990, as amended by section 9 of Act 42 of 1992 18.
50 per cent of the amount of any surplus resulting from a revaluation of assets and determined as prescribed in subsection (4); and general provisions held against unidentified and unforeseen losses, and funds obtained by way of premiums on the issue of cumulative preference shares or debt instruments issued in accordance with the provisions of paragraphs (i) to (iv), inclusive, of the definition of 'secondary share capital', whether or not such funds are disclosed as a general or special reserve in the financial statements of the bank concerned, but does not include any fund required to be maintained in terms of any other law.
(6) (a) The provisions of subsection (2) shall apply mutatis mutandis to the affairs of a subsidiary by way of which a deposit-taking institution bank or controlling company conducts the business of a deposit-taking institution outsidebank in a country other than the Republic, except if, in terms of the laws regarding capital and reserves in force in such other country, such subsidiary will be required to maintain a minimum share capital and unimpaired reserve funds in an aggregate amount equal to or higher than the aggregate amount it will be required to maintain in terms of subsection (2), in which event the subsidiary shall be subject to the said laws of that other country.
A bank or a controlling company that conducts the business of a bank by way of a subsidiary in a country other than the Republic, as contemplated in paragraph (a), shall be obliged to ensure that such subsidiary at all times complies with the provisions of the laws regarding minimum share capital and unimpaired reserve funds applicable to such subsidiary in terms of paragraph (a) and shall, whenever necessary, make sufficient funds available to enable such subsidiary so to comply with the provisions of the said laws.
A bank shall in respect of a foreign branch thereof be subject, mutatis mutandis, to the obligations imposed upon it in paragraph (b) in respect of a foreign subsidiary thereof, as if such a foreign branch were such a foreign subsidiary.
Repeal of section 71 of Act 94 of 1990 19. Section 71 of the principal Act is hereby repealed.
Amendment of section 74 of Act 94 of 1990 20.
"(1) If a deposit-taking institution bank fails to comply with a provision of section 70 71 or 72, or is unable to comply with any such provision, it shall forthwith in writing report its failure or inability to the Registrar, stating the reasons for such failure or inability."
"(a) in the case of any failure or inability to comply with the provisions of section 70 or 71, not exceeding one-tenth of one per cent of the amount of the shortfall for each day on which such failure or inability continues; or".
Amendment of section 75 of Act 94 of 1990, as amended by section 12 of Act 42 of 1992 21.
"(a) whether the deposit-taking institution bank is complying with the provisions of sections 71 70 and 72; or section 70 10A of the South African Reserve Bank Act, 1989 (Act No.
"(5) A deposit-taking institution bank shall, within such period as the Registrar may on the application of such institution bank approve, furnish the Registrar, in respect of that one of the returns referred to in subsection (1) (b) which most nearly coincides with the end of the financial year of theinstitution bank, with a report by the auditor of the institution bank in which is stated whether or not that return fairly and in conformity with generally accepted accounting practice presents those affairs of the institution bank to which the return relates, and the Registrar may, if he deems it necessary, require the institution bank so to furnish him with such a report in respect of any other of those returns furnished during the financial year.".
Amendment of section 80 of Act 94 of 1990 22.
"(3) No deposit-taking institution bank and no associate of a deposit-taking institution bank shall, without the prior written approval of the Registrar, either jointly or individually acquire or hold shares in any registered insurer as defined in section 1 of the Insurance Act 1943 (Act No. 27 of 1943), to the extent to which the nominal value of those shares exceeds 49 per cent of the nominal value of all the issued shares of such insurer."?
Amendment of section 91 of Act 94 of 1990 23.
"(b) contravenes or fails to comply with a provision of section 34, 35, 36(1), (6) or (7), 37(1), 38(1), 39, 41, 42(1), 52(1) or (4), 53, 55, 58, 59, 61(2), 65, 66, 67, 70(2), 71 72, 73, 75, 76, 77, 78(1) or (3), 79, 80 or 84(2),".
Substitution of section 93 of Act 94 of 1990 24.
a bank deposit-taking institution, discount house, banking institution, banking institution registered under or in terms of the Banks Act, 1965 (Act No. 23 of 1965), or building society registered in terms of the Building Societies Act, 1986 (Act No.
any such reference in section 10(1)(i)(xii)(bb), (xiiA) or (xiii)(bb) 10(1)(v) or (vA) or 19(5A) of the Income Tax Act, 1962 (Act No. 58 of 1962), to a building society shall be so construed as a reference to a deposit-taking institution bank which, immediately prior to its registration as a deposit-taking institution in terms of section 33such, was had been a building society registered as such in terms of (within the meaning of the Building Societies Act, 1986) that after the commencement of this Act was registered as a deposit-taking institution by virtue of the provisions of section 33 as those provisions existed prior to the amendment thereof by the Deposit-taking Institutions Amendment Act, 1993; and any such reference in section 10(1)(w) of the Income Tax Act, 1962, to a banking deposit-taking institution shall be so construed as a reference to a deposit-taking institution bank which, immediately prior to its registration as a deposit-taking institution in terms of section 33 such, was had been a banking institution registered as such in terms of (within the meaning of the Banks Act, 1965) that after the commencement of this Act was registered as a deposit-taking institution by virtue of the provisions of section 33 as those provisions existed prior to the amendment thereof by the Deposit-taking Institutions Amendment Act, 1993.
Substitution of certain expressions in Act 94 of 1990 25.
in section 12(1) for the expression "an institution"; and in section 14(1) for the word "institution". of the expression "a bank".
Substitution of section 96 of Act 94 of 1990 26.
This Act shall be called the Deposit-taking Institution Banks Act, 1990 and the provisions thereof shall come into operation on a date fixed by the State President by proclamation in the Gazette.
Different dates may be fixed in terms of subsection (1) in respect of the different provisions of this Act.
Any reference in this Act to the date of commencement thereof shall be construed as a reference to the applicable date so fixed.
This Act shall be called the Deposit-taking Institutions Amendment Act, 1993.