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Articles by Ntokozo Ngubane
OPINION | New crypto rules plug gap exposed by Standard Bank ruling
Comments Gift article Bookmark 0:00 Subscribers can listen to this article New draft regulations represent arguably the most significant overhaul of South Africa’s capital flow regime and bring cryptoasset transactions squarely within the country’s cross-border controls, write the authors. Getty Images Read this for free Be among those who shape the future with knowledge. Uncover exclusive stories that captivate your mind and heart with our FREE 14-day subscription trial.
A pension fund has no locus standi to review an Adjudicator’s determination in respect of death benefit distribution where its legal rights have not been infringed
The Pretoria High Court held that a pension fund and its administrator lacked standing to seek the Financial Services Tribunal (FST) to reconsider a determination handed down by the Pension Fund’s Adjudicator’s (Adjudicator) , given that they do not fall within the ambit of “persons aggrieved by a decision” under section 230 of the Financial Sector Regulation Act, 2017 (FSR Act) in respect of death benefits disputes.
The in duplum rule does not apply to late payment interest on arrear pension fund contributions owed by participating employers
Since 2020, most retirement funds have been faced with a situation where participating employers have failed to comply with section 13A of the Pension Funds Act, 1956 (PFA), by either underpaying employer or member contributions or not paying at all. The non-payment of contributions attracts late payment interest in terms of section 13(7) of the PFA.
“Retrospective pension fund rule amendments not registered by FSCA do not bind members” says ConCourt
The Constitutional Court has provided much needed certainty to the retirement fund industry following the surprising April 2022 judgment of the Supreme Court of Appeal in Municipal Employees Pension Fund & Another v Pandelani Midas Mudau and Another. On 02 August 2023, the Constitutional Court overturned the SCA judgment. The facts of the matter are as follows: The member was employed by the Municipality from 03 May 2003.
So, the NHI Bill has been passed, what now?
The highly anticipated National Health Insurance Bill (NHI Bill) was finally passed by the National Assembly on 20 June 2023. The approval of the NHI Bill by National Assembly has caused a number of stakeholders to express their opinions, with most being concerned that it has been prematurely passed as there remain some key issues which require consideration. The renewed hype around the NHI Bill may leave many thinking that the NHI Bill is soon to be implemented, this is not correct.
Exemption of banks in respect of certain clients extended to 30 June 2025
The exemption of Banks in respect of financially sophisticated and high-wealth corporate clients, referred to as the Merchant Banking Exemption (BN 103 of 2004), was extended by FAIS Notice 35 of 2023 until 30 June 2025.
Exemption of banks in respect of certain clients extended to 30 June 2025
The exemption of Banks in respect of financially sophisticated and high-wealth corporate clients, referred to as the Merchant Banking Exemption (BN 103 of 2004), was extended by FAIS Notice 35 of 2023 until 30 June 2025.
Regulation on Crypto Assets
In general notice 1350 of 2022, effective as of 19 October 2022, the FSCA has formally declared a crypto asset as a financial product under the Financial Advisory and Intermediary Services Act, 2002.
Regulation of crypto assets at the door: A further step following the declaration of crypto assets
In a draft declaration issued on 20 November 2020, the FSCA proposed to include crypto assets as a category of financial product under the Financial Advisory and Intermediary Services Act, 2002 (“FAIS”). We wrote about this previously, here. Speaking to the draft declaration in a September 2021 media briefing, Ms Olaotse Matshane, Chairperson of the Intergovernmental Fintech Working Group, noted that consumer protection remains a priority of the FSCA and the intention behind the draft declaration.
There is no direct access to the Pension Funds Adjudicator
The Pension Funds Act, 1956 (“PFA”) is the primary legislation regulating retirement funds. Section 30A of the PFA provides that any person who has a complaint as defined in section 1 “may lodge a written complaint with the retirement fund for consideration by the board, which must be properly considered and responded to within 30 days”.
Pension Funds: Section 37D(1)(b)(ii) and Employer requests to withhold member benefits
In February 2021, the Financial Services Tribunal (“FST”) in L.S Ngqengelele v Afrisam South Africa (Pty) Ltd considered the question of when a fund may withhold and deduct money from a member’s benefit in accordance with section 37D(1)(b)(ii) of the Pension Funds Act (“PFA”). Section 37D(1)(b)(ii) of the PFA, allows a fund to deduct from a members benefit, on withdrawal of the member, an amount due by the member to his or her employer under specified circumstances.
Amendments to the Financial Sector Regulations published
The Minister of Finance, has published amendments to the Financial Sector Regulations under Gazette 43581 intended to simplify the process of appointing the Commissioner and Deputy Commissioner of the Financial Sector Conduct Authority (FSCA).
Jurisdiction of the Financial Services Tribunal: medical scheme matters
A medical scheme aggrieved by a decision of the Registrar for Medical Schemes must appeal to the Council for Medical Schemes and not the Financial Services Tribunal, even if the decision relates, broadly, to financial sector laws. In Medihelp Medical Scheme v The Registrar for Medical Schemes and Another, the Council for Medical Schemes, instituted an investigation to review the relationship between Medihelp and Curamed Holdings, having regard to Medihelp’s investment in Curamed.
COVID-19 and the potential use of medical scheme reserves
Medical scheme trustees cannot take a business as usual approach during the COVID-19 pandemic. Boards should be giving thought to the value of their reserves and whether using such reserves would be of benefit to members. At a minimum, trustees need to understand the options available to them when considering using scheme reserves. In terms of regulation 29 of the Medical Schemes Act 1998 (MSA), medical schemes are required to maintain a minimum of 25% of the annual member contributions in reserve.
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