To amend the South African Reserve Bank Act, 1989, so as to provide for the amendment of certain deï¬nitions, the insertion of new deï¬nitions and the deletion of a deï¬nition; to provide for the establishment of a Panel for the election of directors to the Board and the functions of the Panel; to reinforce the requirements regarding the limitation on shareholding in the South African Reserve Bank and to prevent the abuse of those provisions; to provide for the nomination of directors by a broader base of the South African public and to broaden representation on the Board of the South African Reserve Bank; to deï¬ne clear criteria regarding when persons are disqualiï¬ed from serving on the Board; to provide for the conï¬rmation of Board nominees against ''ï¬t and proper'' and ï¬duciary criteria; to clarify the powers and functions of the Board; to provide for the possibility of the Governor and Deputy Governors being re-appointed to serve terms of office of less than ï¬ve years; and to provide for matters connected therewith.
Amendment of section 1 of Act 90 of 1989, as amended by section 1 of Act 10 of 1993 and section 1 of Act 2 of 1996 1.
which is a close corporation registered under the Close Corporations Act, 1984 (Act No.
by the insertion after the deï¬nition of 'mutual bank' of the following deï¬nition: '''NEDLAC' means the National Economic, Development and Labour Council, established in terms of section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No.
by the insertion before the deï¬nition of 'prescribed' of the following deï¬nition: '''Panel' means a panel as referred to in section 4(1C);''; and by the deletion of the deï¬nition of 'shareholders' representative'.
Amendment of section 4 of Act 90 of 1989, as amended by section 9 of Act 51 of 1991, section 2 of Act 10 of 1993, section 72 of Act 129 of 1993 and section 3 of Act 2 of 1996 2.
''(b) seven directors elected by the shareholders from candidates conï¬rmed by the Panel.'
''(1A) Any shareholder, current director of the Bank or any member of the general public may nominate persons to serve as elected directors of the Bank in the manner as may be prescribed.
Nominations in terms of subsection (1A) must be made in writing to the Panel and shall include a comprehensive curriculum vitae of the person nominated as well as a motivation for his or her nomination, and be submitted at least three calendar months before the ordinary general meeting of shareholders at which directors are due for election.
established by the Governor at least three months before; and convened by the Governor at least two months before, the relevant ordinary general meeting of shareholders at which an election of directors is due to take place.
a retired judge and one other person, both nominated by the Minister; and three persons nominated by NEDLAC. (1E) The members of the Panel referred to in subsection (1D)(b) and shall be appointed by the Governor from time to time.
the Governor shall have a deliberative vote and, in the event of an equality of votes, a casting vote; and a quorum shall comprise of the Governor and three other members of the Panel.
subject to subsection (1H), compile a list of all the candidates conï¬rmed as suitable for possible election to the Board; and cause a copy of the list of candidates to be sent to shareholders no later than 30 days before the date of the relevant ordinary general meeting of shareholders.
If, in relation to any vacancy on the Board to be ï¬lled, more than three nominees meet the criteria listed in subsection (1G)(a), only the three candidates deemed most suitable by the Panel in relation to the vacancy, shall be conï¬rmed.'
exercise such care in the carrying out of his or her functions in relation to the Bank as may be reasonably expected of a diligent person holding the same appointment under similar circumstances and who possesses both the knowledge and skill mentioned in subparagraph (iii), and any such additional knowledge and skill as the director in question may have.'
one shall be a person with knowledge and skill in labour; and one shall be a person with knowledge and skill in mining.'
(ii)] a provincial legislature [referred to in section 125 of the Constitution.] or a Municipal Council; or is an unrehabilitated insolvent; or was dismissed from a position of trust as a result of his or her misconduct or has been disqualiï¬ed or suspended from practising any profession on the grounds of his or her professional misconduct; or was convicted of an offence listed in Part 1 or 2 of Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), an offence under this Act, the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998), the Prevention of Counterfeiting of Currency Act, 1965 (Act No. 16 of 1965), perjury, or any other offence involving an element of dishonesty in respect of which he or she has been sentenced to imprisonment without the option of a ï¬ne or to a ï¬ne exceeding R1 000; or is mentally or physically incapable of performing the duties of a director; or is contractually incapacitated; or is an employee of Government.'
''(5) The tenure of a director shall, unless otherwise indicated or agreed by the Board, automatically terminate forthwith- (a) if the director gives notice in writing to the secretary of the Bank of his or her resignation as a director; (b) if the director, without reasonable cause, absents himself or herself from three consecutive meetings of the Board without leave of absence granted by the chairperson: Provided that the chairperson may not grant leave of absence from more than three consecutive meetings of the Board; (c) if the director fails to declare to the Bank any direct or indirect interest in any agreement or proposed agreement with the Bank; (d) if the director unlawfully discloses to any person any information described in section 33 of this Act; or (e) if the director is disqualiï¬ed on the grounds described in subsection (4).''.
Insertion of section 4A in Act 90 of 1989 3.
making recommendations to the Minister in respect of regulations as contemplated under section 36 and in connection with any possible liquidation of the Bank in terms of section 38; and performing any other function speciï¬cally assigned to the Board in terms of this Act.
All other powers and duties of the Bank under this Act shall vest in and be exercised by the Governor and Deputy Governors.''.
Amendment of section 5 of Act 90 of 1989, as amended by section 1 of Act 39 of 1997 4.
The Governor and Deputy Governors shall hold office for a period of ï¬ve years: Provided that the President of the Republic may, after consultation with the Minister and the Board, on any re-appointment of a Governor or Deputy Governor at the end of his or her term of office, appoint such officer for a term not exceeding ï¬ve years.
The directors who are Government representatives shall hold office for a period of three years.
Elected directors shall hold office for a period commencing on the ï¬rst day after the date of their election as such at an ordinary general meeting of shareholders held during a speciï¬c calendar year and terminating on the date of the ordinary general meeting of the shareholders held during the third calendar year following upon the ordinary general meeting at which the director was elected.'
''(2) A director shall be eligible for re-appointment or re-election, as the case may be, after expiration of his or her term of office: Provided that in the case of an elected director, such person has been conï¬rmed by the Panel as a candidate as contemplated in this Act.''.
Amendment of section 6 of Act 90 of 1989, as amended by section 9 of Act 51 of 1991 and section 4 of Act 2 of 1996 5.
''(b) in the case of [a shareholders' representative] an elected director, by the election by the shareholders at an ordinary general meeting of shareholders of a person, [who would be qualiï¬ed to be elected] conï¬rmed by the Panel as a candidate as contemplated in this Act, in the place of the director whose office has become vacant, or by the appointment by the Board, subject to [conï¬rmation] his or her subsequent election by shareholders at the next ordinary general meeting of the shareholders, of a person [so qualiï¬ed] conï¬rmed by the Panel as a person suitable for possible election to the Board.'
in the case of any other director, in accordance with the applicable provisions of section 5: Provided that the term of office of a director appointed by the Board, and who is not subsequently elected by shareholders at the next ordinary general meeting of shareholders, shall expire on the day of such ordinary general meeting.''.
Amendment of section 8 of Act 90 of 1989 6.
''(2) The Governor or any Deputy Governor may [assign] delegate the exercise of any power delegated to him or her by the Board under subsection (1) or any of his or her original powers, to a Deputy Governor or an officer of the Bank for a particular period or purpose, and any power the exercise of which has been so [assigned] delegated, shall be exercised subject to the same terms, conditions or restrictions imposed by the Board when delegating the power to the Governor or Deputy Governor or, in the case of original powers of the Governor or Deputy Governor, on such terms, conditions or restrictions as he or she may determine.''.
Amendment of section 22 of Act 90 of 1989, as amended by section 16 of Act 85 of 1992 and section 8 of Act 2 of 1996 7.
no shareholder shall hold, or hold in aggregate with his, her or its associates, more than 10 000 shares in the Bank; and if it appears that a shareholder holds, or holds in aggregate with his, her or its associates more than 10 000 shares in the Bank in contravention of this section or any other provision of this Act, the Bank may approach a court with jurisdiction for an appropriate order to redress the matter, which order may include, but is not limited to, an order for the disposal of shares in the Bank at a price per share and subject to such terms, conditions and restrictions as the court may determine.'
''(2) A shareholder [holding] who holds, or holds in aggregate with his, her or its associates, more than 10 000 shares in the Bank at the commencement of [this Act] the South African Reserve Bank Amendment Act, 2010, [may continue to hold those shares, but shall not, as long as he holds more than 10 000 of those shares, acquire any further shares in the Bank] shall disclose in a manner as may be prescribed to the Bank the names of all his, her or its associates, as well as the number of shares held by each of them.'
''(2A) A shareholder who discloses information as contemplated in subsection (2) may continue to hold, or hold in aggregate with his, her or its associates, those shares: Provided that for as long as such shareholding, or aggregate shareholding, as the case may be, exceeds 10 000 shares, neither the shareholder nor his, her or its associates, as the case may be, shall acquire any further shares in the Bank.'
''(3) If at any time the number of shares in the Bank held by a shareholder referred to in subsection (2), or held by that shareholder in aggregate with his, her or its associates, as the case may be, is reduced to 10 000 or less, the restriction laid down in subsection (1) shall apply also to that shareholder.''.
Amendment of section 23 of Act 90 of 1989, as amended by section 9 of Act 2 of 1996 8.
''(2) No shareholder, or his, her or its associates, referred to in subsection (2), [or] (6) or (2A) of section 22 shall either directly or 5 indirectly exercise any vote as a shareholder in respect of the number of shares in the Bank held by him [or], her or it, either alone, or in aggregate with his, her or its associates, in excess of 10 000, and no group of companies with interlocking directorates shall either directly or indirectly exercise any vote as shareholders in respect of the total number of 10 shares in the Bank held by those companies in excess of 10 000.''.
This Act is called the South African Reserve Bank Amendment Act, 2010, and comes into operation on a date determined by the President by proclamation in the Gazette.