Banks Amendment Act, 1996

2. Section 34 of the principal Act is hereby amended- .. ,(a).'. by_ th!! ,substitution for sub~!!ction (2A) of th~. follqwing subsection: . •.• . l ' · ''(2A) [If· th~ . Regist~ar., grants a~ aP.plication ln terms of ... subsection (2) for his consent to the establishment of a representative 30 . , offi~e hi the Republic,he shall. on ·t~e· P.rescribed form issue to the .foreign histitution' concerned a' certificate of authorization for the . . . establislifiientofa iepresentative'office in the Republic] A foreign ; -~ ' .. . ·.: .. ·.·, . institution applyi~g iri"terffis·'ofsubseciioh (2) may be required by the . ' n ' · . Registrar to furnish him with such information and documents as he may 35 .. deem necessary, over and above any information and documents which · ' ' · ' have been furnished by' such foreign institution by virtue of that , . . ': ~. ·(~ / :' ?~ !h~. inserti~ll of the f~l!~w.i.ng su_bsecti9:n.s ·a~t~r .subs~ction (2A): . :. ' :;,'. -~;·. ' ' · ··. · · . : .1• _; . ' _furnished to him .for the purposes of an application in terms of subsection (2);-the Registrar may grant the application,' either unconditionally or subject to};ucti conditio'ns as he may determine, if satisfied that- (a). _the f<;Jreigniristitution'maktn'g that'applidtion 1~'-Yfully, conducts a considered all mformat10n and documents 40 · " 2B After havm subsection."; · : . ·.·; . . . . . . . . ! business similar to the busine~s'of a bank" in a country other than the 45 . · · Republic; . :_ · - · · ·· - · • · •· .· • · - · ,, .. ' · · . •: , ; i · .. . ' •: ; (b) ' the competent authority 'responsible in that other country for the ·_ :_-. ... ~~ \ '. . . supervision of that foreign institution_:_ . . . . (i) has duly authorized the proposed establishment of a represen- tative office in tile Republicby Vtat foreign institution; · · · · ~ 50 8 No. 17531 Act No. SS, 1996 GOVERNMENT GAZETIE, I NOVEMBER 1996 BANKS AMENDMENT ACT, 1996 (ii) accepts, is committed to and complies with the proposals, :guidelines and pronouncements of the Basle Committee on Banking Supervision; ,., · (iii) is not legally precluded from .fulfilling its obligations in terms of subparagraph (ii); and·. ~5 (iv) willon a continuous· basis furnish the Registrar with all material information regarding the financial soundness of that . foreign institution; and · . . (c) .. the establishment of a representative. office in the Republic by that foreign institution will not be detrimental to the public interest. (2C) Upon granting an application for consent to the establishment of a represent.ative office in. the Republic, the Registrar, against payment of the prescribed fee by the foreign institution, shall issue to the foreign . : institution, ·on the prescribed fofJTI; a certificate of authorization for the : establishment of a representative office in the Republic.'.'; and . · 10 15 .. f :., ·. (c) by the addition of the following subsection after subsection (4):, " 5 Re resentative .. offices established in accordance with the · provision~ of this section shall furnish the. Registrar, at such time or times . or at such .intervals or in respect of such period or. periods and in such .form as may be prescribed, with such prescribed information as he may 20 require reasonably for purposes of the .. performance of his functions under this Act.". · Amendment of section 52 of Act 94 of 1990

3. Section 52 of the principal Act is hereby amended- . 1 . 't. ·; '~. , . : ... (a) in subsection (1)- (i) by the insertion after paragraph (a) of the following paragraph: . 25 " aA invest in a 'oint venture within or outside theRe ublic if the investment, or. the investment together with one or more investments already made by the bank in that joint venture, results in the bank being exposed to an· amount representing 30 .. more than five per cent of its capital .and reserves: J>rovided that for as long as. the bank is exposed to the aforementioried extent, such approval must be obtained whenever it seeks to make a further investment in that joint venture;~'; and .. (ii) by the substitution for paragraph (c) of the following paragraph:. · 35 .. , . . , . " (c) acquire an interest in any undertaking [conducting business] having its registered office· or principal place of business outside the Republic;"; and : , . · · , (b) by. the addition after subsection (5) of the' following subsection: . . . . . , · ,• " 6 For the· u oses of this section and section 53 "'oint venture" 40 .means a contractual arrangement between .two or more persons, one or more of whom is a bank or a controlling company, in terms whereof the parties undertake an economic:. activity that is subject to their joint control.''. . · · · , - Amendment of section 53 of Act 94 of 1990 45 . ,4. Section53 of the principal Act is hereby amended by the insertion of the following paragraph after paragraph (a): . 1 ; ' l ~ - . , "(aA) any joint venture contemplated in section 52(1)(aA);~· . . Amendment of section 54 of Act 94 of 1990, as substituted by section 6 of Act 42 of · 1992 and amended by sections 12 and 25 of Act 9 of 1993, Proclamation 132 of 1994 50 . and section 36 of Act 26 of 1994 , · ,

5. Section 54 of the principal Act is hereby amended---, . . ' ' (a) . by the substitution for subsection (3) of the following .subsection: ; '. • ' ~ ,_ • ' ; l 10 No . .17531 Act No. 55, 1996 GOVERNMENT GAZETIE, 1 NOVEMBER 1996 BANKS AMENDMENT ACT, 1996 ,., · :· < •. :~'(3) Upon the coming into effect of a 'transaction effecting the •.. ·: ,. .. _,_, "' ·• amalgamation of one bank with another bank as contemplated in subsection (2)(b) or [a transaction] effecting the transfer of all or part of : · :''"' .. · • ··the 'assets .and liabilities of. one bank to· another bank or person as i ••• ' • • : ,· i l ~: '.:.: ··' i ) ' "' ·· · • ' · contemplated in subsection (2)(c)- : (a) all the assets and liabilities of the amalgamating banks or, in the ":oi · ·'case' of·~uch transfer of assets and liabilities, those assets and liabilities of the transferor bank [by which the transfer is effected] '' that· are'·transferred in terms of the· transaction, shall vest in and ' · ' "·• · · · become binding upon the amalgamated bank or, as the case may be, . the bank or person taking [over] transfer of such assets and ' liabilities; '· · ·' · · " · ·.5 ' ,, ') ·· •··• · ' ' ' i ; . . ! : ,, ' ' . ) .. '. '; ,, '·.' '·'" : '· " '(b) the amalgamated bank 'or, in the case of such transfer of assets and · liabilities,'the bank or person' taking [over] transfer of such assets ' and liabilities,' shall have the saine rights arid be subject to the same 15 ' obligations i as· those' which [immediately before the amalgam- ation or transfer] the 'amalga~iiating banks or; as the case may be, . the transferor bank [by which the transfer' has been 'effected] may · ' · 'have had or to whichthey or it rriay [then] have been subject [to] -~ i ' ( c r all agreements,"appointments; transactions and documents entered ' immediately before' the amalgamation or transfer; ' ili.to, n1ade, drawn up' or executed with, by or infavour of any of the ' . :''amalgamating banks or; asttie'ciise'rriay be,tiietransferor bank [by which tlie'tran.Sfer has been effected], and in force immediately prior to the amalgamatioQ or, transfer,,but excluding such agree" 25 ments, appointments, transactions and documents that; by' virtue of the terms and conditions of the amalgamation or transfer, are not to be retained iri force, shall reinain of full force and effect and shall be cqnstrued for all purposes. as if they had been entered irito, made, 20 :' .,,, ,, ., 1 ., , ,' -~.·.,Ara~nup.orexe~uf~9~i'th,byor_\n,[ri~ourofth~ami!lgamatedbank 30 .. ,~ ... :!~or, as the case may be, the bank or person taking [over] transfer of . . ' ; ''ihe assets' and liabilities in 'question; and .• :::;' 1 ,' ,'··(d)" any',boriq, · p1~dge,'' gullfa~tee. 'or~'ilistrhment to secure future . ':' ;'' ,' 1 :. ; .• , :1: • ··.' • · .• ,'' ~d~ances:. fli,cil_ifie.s'ox ,services by an§of the amalgamating banks '., ',: , .... , ., . . ' : • ~· ':.· . : 0 . ' . .. • , , .,or, a~.th~case may be, by the transferor bank [transferring such 35 ···~ assets'arid liabilities],'which wasjnfon;e immediately prior to the ' " ' I. ": amalgamation or transfer, shall'reinaih'of full force and effect and ·. ' \ : _. shall be cmi.strued as ;t tiond, pledge; guarantee or instrument given ' '.to or in favour of the ~malg'alllated bank or, as the case may be, the · · '· · . '. '. ;, bank or person taking[ over] transfer of such assets and liabilities, 40 . ' '.as.security for fut~re adva~ces, facilities or serviCes by that bank or .. :; .~·person except where, in the case of such transfer, any obligation to .. ' provide such· advances, facilities or services is not included in the . , transfer::; · · . . , , , . , · · in ,subsection. (4), ~y the substitution for paragraph (b) of the following 45 (b) · .. .' , paiagrap~: . : · .. '~·- ·,. ·· - .. ~ _· · . _ ; ,. , , · · · :· · , ','(b) iri' the'case'of a transaction effecting the transfer of assets and 'liabilities' of one bank to another bank or a personas contemplated ' '. )!:r:, ••• ,, : ··:-in)ubsection (2)(c),'. to. confirffiation'at' a general meeting of :~.' , .. ·,· .! ,·;,' .. shareholders of the transferor bank . [by which the transfer is 50 effected] and the_bank or per~on, taking [over], transfer of such · " · assets and liabilities,"; .. · · · · - · · · · · · · : (c) by the substitution for subsection (5) of the follo'l"ing s~;~bsection: , . • . . . . '"(5) Notice of the passing or' the resolution' confirming, 'as' contem- • · · · , I ' .. . J: I. ' '• '' • •• II • . plated in subsection ( 4), any compromise; iunalgamation or arrangement, 55 ' or any arrangement for the transfer ofassets and liabilities; together with . a copy of such resolution and the tef)lls and conditions of the relevant ·'agreementpr arrangem(;!nt, duly certified.):lythe (chairmim) chaiperson ~-of the·meeting~itt'WhiCh sUch·re_S6Itit(oQ_~-as jJaSSed"and.b}r_the secretary of the bank or person concerned, shall be sent to the Registrar by' each of the banks involved or, if! the case of a trans,l)ction effecting the transfer of assets and liabilities of one bank to"another bank or a person as contemplated in subsection (i)( c), Qy the relevant tninsferor barik [by .. 60 12 No. 17531 Act No. 55, 1996 GOVERNMENTGAZETIE, I NOVEMBER 1996 BANKS AMENDMENT ACT, 1996 which the transfer is effected] and the bank or person taking [over] transfer of such assets and liabilities, and [the Registrar shall] after having received such notices from all the parties. to the relevant agreement· or arrangement, the Registrar shall register [such] those notices."; . • · - - 5 (d) by the substitution for subsection (8) of the following subsection: · •"(8) The Registrar of Companies, every Master of the Supreme Court imd every officer or person in charge of a deeds registry or any other office [in which], if, in his office or any register under his control there- . (a) is registered any title to property belonging to, or any bond or other 10 right in favour of, or any appointment of or by; • (a A) is registered any share, . stock, debenture or other marketable ,. • security in favour of; or . (b) has been issued any licence to or in favour of,! . any bank which has amalgamated with any other bank or any bank which. 15 has transferred a_ll or part of its assets and liabilities to any other bank or person [or.any bank.which has transferred part of its assets and . liabilities to a wholly owned· subsidiary of the transferor bank's controlling company], shall, if [he is] satisfied- , · .. (i) that . the. Minister has consented . in. terms of subsection (I) 20 [consented] to the amalgamation or transfer; and . (ii) ·that such :amalgamation or transfer has been duly effected, ... and upon [the] production· to him of any relevant deed, bond, share, . stock, debenture, certificate, letter of. appointment, licence or other document,. make such endorsements.thereonand effect such alterations 25 in his registers as may be neces~ary to record the transfer [thereof] of the relevant property, bond or other right, share, stock, debenture, market- . . . able security,' letter of appointment ·or. licence and of any rights thereunder to the amalgamated bank or, as the case may be, to the bank . or person;[or the said wholly owned subsidiary which] that has [so] taken [over] transfer of the said assets and liabilities."; and- ·30 ·" ( e) by the insertion after subsection (8) of the following subsection: ·." 8A No transfer dut , stam dut , re istration fees, licence dut or . , . ' · . other charges shall be payable in respect of- · ·: . · (a)· a transfer contemplated ·in subsection (8) . taking place in the 35 execution of a. transaction. entered into at the instance of the Registrar in the interest of the effective supervision of banks or the · maintenance of a stable banking sector; or (b) ·any endorsement or alteration made to record such transfer, upon· submission to the Registrar.of Companies, or~ the Master, officer or 40 personreferred to in subsection (8), as the case may be, of a written .. confinl1atim1 by the Registrar· of Banks ' that the Minister, on the recommendation of the last-mentioned Registrar and after consultation with the Commissioner for Inland Revenue, has consented to the waiver of such duties, fees or charges.". 45 ,_._ Amendment of section 69 of Act 94 of 1990, as amended by section 8 of Act 42 of 1992, sections 17 and25 of Act 9 of 1993 and section 43 of Act 26 of 1994 ..

6. Section 69 of the principal Act is hereby amended~ · ' . -. • -·.I (a) by the deletion of paragraph (b) of subsection (6); and ' . ··(b) by the insertion after.subsection (6A) of the following subsection: 50 . , . " 6B Notwithstandin an rovision to the contra contained in this '· Act, sections 35A, 35B and 46 of the Insolvency Act, 1936 (Act No. 24 . of-1936), shall mutatis mutandis apply to the curator of any bank under curatorship and to such a.bank as if the curator were a trustee of an insolvent estate and the bank were an insolvent or a sequestrated estate as 55 contemplated in those sections.". .14 No. 17531 Act No; SS, 1996 GOVERNMENT GAZETfE, I NOVEMBER 1996 BANKS AMENDM~NT ACT, 1996 Short title ·.' ....

7. This Act shall be call~d tJte Banks Amendment Act,il996. . • r··.