Vol. 467 Cape Town 20 May 2004 No.
STAATSKOERANT, 20 ME1 2004 No.
TheMinister of Finance intends tabling the Public Investment Corporation Bill, 2004 in Parliament duringthecurrent Parliamentary term.
of the Rules of the National Assembly. Interested persons and institutions are invited to submit written representation on the Bill to the Secretary to Parliament by no later than 18June 2004.
Email: ahermansQparliament, go~za jmichaelsBparliament.gov.
To providefortheestablishment of ajuristicpersonknownasthePublic Investment Corporation and for the transfer of the of rights, obligations and assets commissioners to the corporation; to provide for the investment by the corporation of certain money received or held by, for or on behalf of the Government of the Republic and certainbodies, councils, fundsandaccounts;toregulatecertain activities of the corporation relating to the management of investments; to repeal the Public Investment Commissioners Act and to terminate the term of office of all the commissioners; and to provide for matters connected therewith.
i<commissioners" means the publicinvestmentcommissioners referred to in section 2 of the Public Investment Commissioners Act (Act No. 45 of 1984); "Companies Act" means the Companies Act, 1973 (Act No. 61 of 1973); "Corporation" means the corporation established by section 2(1); "department" means the National Treasury established in terms of section 5 of the 10 Public Finance Management Act, 1999 (Act No. 1 of 1999); "deposit" means an amount of money other than that forming partof the National Revenue Fund as contemplated in the Public Finance Management Act, 1999 (Act No.
CorporationforPublicDepositsAct,1984 (Act No. 46 of 1984), 25 and, except for the purposes of section 11(I), includes an amount of money received or held by, for or on behalf of a person or body referred to in that section; "FAIS Act" means the Financial Advisory and Intermediary Services Act, 2002 (Act No.
means the Public Investment Commis-sioners Act, 1984 (Act No. 45 of 1984); "the Registrar" means the Registrar or deputy registrar of financial services 35 providers referred to in section 2 of the FAIS Act: "state" means the National Government.
(a)Subject to paragraph (b),any reference in any law to the commissioners must be construed as a reference to the corporation.
if such amount of money may or is required to be invested in such a manner that it is required to be repaid ondemand, as a reference to a provision requiring authorising, as the case may be, the investment of such amount of money with the corporation referred to in section 3 of the Corporation for Public Deposits Act, 1984 (Act 46 of 1984).
(a)Subject to paragraph (b)the provisions of the Companies Act whichare not in conflict with this Act, applyto the corporation.
There is hereby established a juristic person, an institution outside the public service, to be known as the Public Investment Corporation Limited.
The Registrar of Companies must enter the nameof the corporation in theregister kept in termsof the Companies Act and shall issue certificate to that to the corporation a effect.
Despite the Companies Act, the Minister, on behalf of the state, must sign the memorandum of association and the articles of association of the corporation.
On signature of the memorandum of association and the articles of association in terms of subsection (3), such memorandum and articles mustbe regarded as complying with the requirements of the Companies Actfor registration in terms of the said. Act.
On receipt of the signed memorandum and articles, the registrar of companies must register the said memorandum and articles as contemplated in section 63 of the Companies Act and endorse thereon a certificate to the effect that the corporation is incorporated.
No fees are payable in terms of the Companies Act in respectof the checking of documents, thereservation of name, theregistration of the said memorandumand articles and the issue of a certificate to commence business.
Capital Share of Corporation,.
1j The state is the sole holder of the shares in the corporation.
The rights attached to the shares in the corporation, of which the state is the holder, must be exercised by the Minister on behalf of the state.
(3)The Minister, in consultation with Cabinet, may at any time dispose of all or any part of the shares held by the state in the corporation.
The main object of the corporation is to bea financial services provider in terms of the FAIS Act.
The corporation has a11 the powers necessary to enable it to realise its objects, including such powersas may be prescribed by regulation, unless expressly excluded or qualified by this Act.
The Minister must, in consultation with Cabinet, determine and appoint the members of the board.
The members of the board must be appointed on the grounds of their knowledge and experience, with due regard to the FAIS Act, which, when considered collectively, should enable the board to attain the objects of the corporation.
The Minister may issue directivesto the board of directors regarding the management of the corporation.
The board may establish such committees, consisting of directors, as it considers necessary.
The board must determine the functions of the committees and the procedure to be followed when the chairpersons of the committees are elected.
(3)Any person with expert knowledge of a function of a committee may be co-opted by such on such terms the may determine.
Subject to the provisions of this Act, the board must control the business of the corporation, direct the operations of the corporation and exercise all such powers of the corporation as are not in terms of this Act required to be exercised by the shareholders meetingofathe corporationat of shareholders.
The Registrar must, notwithstanding any provision to the contrary in the FAIS Act, on a date to be determined by the Minister, register the corporation as a financial services provider, as contemplated in section 7 of the FAIS Act.
No fee, as contemplated in section 41 of the FAIS Act, is payable in respect of the registration of the corporation as a financial services provider.
Neither the registrar nor the corporation may terminate the registration of the corporation referred to in subsection (1) without the consent of the Minister.
(1)The corporation may invest every deposit or portions of a deposit, regard being had to the period, if any, after the expiration of which such a deposit or portions of such a deposit may again become necessary for use, on behalf of the depositor concerned in accordance with the investment policy of the corporation.
The board must adopt an investment strategy with guidelines to regulate the investment of deposits and othermoney to referred in section 11.
(1)The Minister may, if it is in the public interest, authorisegenerally or in respect of a particular case, any person or body receiving or holding within or outside the Republic, amounts of money other than deposits to pay those amounts of money or portions thereof to the corporation for investment as if those amounts of money were deposits.
(2)The corporation may receive for investment amounts of money other than deposits and those amounts contemplated in subsection (1).
(a)With effect from a date to be determined by the Minister by notice in the Gazerre, the commissioners cease to exist and the term of oEce of each commissioner terminates.
With effect from the datecontemplated in paragraph (a), all of the assets, liabilities, rights and obligations of the commissioners are transferred to the corporation.
(c)The board must ensurethat the necessary formalitiesto give effect to paragraph (b) are complied with.
The value of the assets and liabilities referred to in subsection(1)mustbe determined by the Minister after consultation with the commissioners.
If any doubt arises as to whether m-y assets, liabilities, rights or obligations for 5 purposes of this Act pertains to or is connected with the commissioners the department or anyone else, the Minister must make a determination in this regard.
(4)The corporation must be substituted for the commissioners, as contracting party in respect of all contracts transferred to the corporation in terms of subsection (l), without such substitution bringing about novationof such contract.
(5)The corporation must, as consideration for the transfer of assets, liabilities, rights or obligations in terms of subsection (l), issue to the state fully paid up shares in the corporation to a valuedetermined by theMinister, after consultation withthe corporation, and such value must be regarded for such as being reasonable consideration transfer.
Despite the Government Employees Pension Law, 1996 (ProclamationNo. 21 of 1996) or any other law, all persons referred to in subsection (7) remain members of the 25 GovernmentEmployeesPensionFundreferred to in section 2 of the Government Employees Pension Law, 1996.
For purposes of the Income Tax Act, 1962 (ActNo.
it is regarded that no change of employer took placein respect of an employee referred to in subsection (7).
Despite the repeal of the PublicInvestmentCommissionersActinterms of section 18, anything done in terms of that Act which may be done under or in terms of this Act, continues to be valid and of full force and effect.
1999(Act No. 1of 1999).
The declaration of dividends must be authorised by the board and approved by the Minister.
The corporation may not be wound up except in terms of an Act of Parliament.
No person, association, corporation or other statutory body or company shall carry on business or be registered under an Act of Parliament, with a name identical to that of the corporation, or resembling the name of the corporation to such an extent that it is deceptive.
The Minister may, by notice in the Gazette, make regulations with regard to any matter which is necessary to prescribe for the proper implementation or administration of this Act.
Repeal of Law 10 18. The Public Investment Commissioners Act,1984(Act No. 45 of 1984),is hereby repealed.
This Act is called the Public Investment Corporation Act,2004, and comes into operation on a date fixed bythePresidentbyproclamationintheGazette.
NfEMORANDUM ON THE OBJECTS OF THE PUBLIC INVEST- MENT CORPORATION BILL. 2004 1.
35 of 1984 ("the Act"). The commissioners are of certain monies received or held responsible for the investment by, for or on behalfof the Government and certain bodies, councils, funds and accounts. The Act does not provide for the creation of any juristic body and the activitiesof the commissioners are therefore curtailed.
1.2 Theactivities of thecommissioners, weresimilar to those of anyother investment manager although they are not registered in terms of the Financial Markets Control Act, 1989 (ActNo. 55 of 1989) and the Stock Exchanges Control Act, 1985 (Act No. 1of 1985). The Bill seeks to provide that the Financial Advisory and Intermediary Services Act (Act No. 37 of 2002) ("the FAIS Act") regulates the said activities.
2.1 The object of the Bill is to establish a statutory corporation to be known as the Public Investment Corporation Limited.
2.2 Theentireoperation of the commissioners, comprisingthe assets, liabilities, rights and obligations, will be transferred to the corporation on a date to be determined by the Ministerof Finance. The Ministerof Finance shall also determinea date onwhich the Registrar of Financial Services Providers shall register the corporationas a financial services provider, as contemplated in the FAIS Act.
2.3 The corporation will, after registration as a financial services provider, manage depositsreceivedfromGovernmentandotherpublic institutions as well as money received from any otherperson. The board of directors of thecorporation shall determine all policies and investment guidelines of the corporation.
There are no financial implications for the state. The state stands to gain from tax collections as well as dividend payments from the establishment of the corporation.
The State Law Advisers and the National Treasury are of the opinion that this Bill must be dealt with in accordance with the procedure established by Section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or section 76 of the Constitution applies.