Shawn Barnett (ZA)

Subscribe to all posts by Shawn Barnett (ZA)

Update on crypto assets as a financial product

By Shawn Barnett (ZA) and Hishaam Khan on July 13, 2023 Posted in Finance

This blog was co-authored by Julian Scholtz, Candidate Attorney. During October 2022, the Financial Sector Conduct Authority (FSCA) declared crypto assets to be a financial product under the Financial Advisory and Intermediary Services Act, 2002 (FAIS Act). The FSCA provided an update on 11 May 2023 and published the Exemption of Persons Rendering a Financial … Continue reading

Data breaches in terms of the FAIS Act

By Rosalind Lake (ZA), Hishaam Khan and Shawn Barnett (ZA) on April 25, 2023 Posted in Finance

This blog was co-authored with Julian Scholtz, Candidate Attorney. While the Protection of Personal Information Act, 2013 (POPIA) is widely accepted as the primary legislation dealing with the processing of personal information, it is important for financial service providers (FSPs) to take note of their duties in the Financial Advisory and Intermediary Services Act, 2002 … Continue reading

Crypto Asset Exemption

By Shawn Barnett (ZA) and Hishaam Khan on October 20, 2022 Posted in Finance

With the declaration of crypto assets as a financial product, providers of crypto assets are left wondering whether they need to register as a financial service provider under the Financial Advisory and Intermediary Services Act, 2002. Following an exemption published by the Financial Sector Conduct Authority, a person who provides a financial service in relation … Continue reading

Regulations for cryptocurrency promised by end of 2023

By Shawn Barnett (ZA) and Hishaam Khan on July 25, 2022 Posted in Finance

This article was co-authored by: Kristen de Wet, Candidate Attorney The deputy governor of the South African Reserve Bank (SARB) has confirmed that the trading of cryptocurrency in South Africa will be regulated within the next 12 to 18 months from 12 July 2022. The use of cryptocurrency in South Africa is prevalent and recent … Continue reading

Regulatory exemption credit ratings for South African banks

By Shawn Barnett (ZA) on June 27, 2022 Posted in Finance

This blog was co-authored by: Kristen de Wet, Candidate Attorney The 31 May 2022 publication of FSCA CRA Notice 2 of 2022 (Exemption Notice) by the Financial Sector Conduct Authority (FSCA) has determined that the exemption for certain regulated persons, as set out in the FSCA CRA Notice 3 of 2020 (Provisional Exemption), is finalised … Continue reading

Financial Services Tribunal reluctant to overturn FSCA administrative decisions

By Shawn Barnett (ZA) on June 24, 2022 Posted in Finance

This blog was co-authored by Kristen de Wet, Candidate Attorney On 4 April 2022, the Financial Services Tribunal in JHE Murray v FSCA, held that there exists no requirement in terms of the legislative framework that obliges the Financial Sector Conduct Authority (FSCA) to conduct a formal hearing before making administrative decisions. Consequently, reconsideration applications … Continue reading

Permitted deductions from a collective investment scheme portfolio

By Shawn Barnett (ZA) on February 22, 2022 Posted in Finance

This blog was co-authored by: Hishaam Khan, Associate Designate The Financial Sector Conduct Authority (FSCA) published FSCA CIS Notice 1 of 2022 which determines amounts in addition to those in section 93(1) of the Collective Investment Schemes Control Act, 2002 (CISCA) that may be deducted by a manager from a portfolio. The Notice permits the … Continue reading

Fitness, propriety and other matters related to significant owners – Part 2

By Shawn Barnett (ZA) and Hishaam Khan on February 8, 2022 Posted in Finance

(Click here for part 1) Joint Standard 1 of 2020 and the Financial Sector Regulation Act, 2017 (FSRA) prescribe wide ranging obligations for significant owners, but certain persons are exempt. Financial Sector Conduct Authority (FSCA) General Notice 3 of 2020 exempts the following persons from the requirements of the Joint Standard probably because these entities … Continue reading

Fitness, propriety and other matters related to significant owners – Part 1

By Shawn Barnett (ZA) and Hishaam Khan on February 7, 2022 Posted in Finance

The Financial Sector Conduct Authority (FSCA) and the Prudential Authority (PA) Joint Standard 1 of 2020 sets out the requirements on fitness, propriety and other matters relating to significant owners of financial institutions and the financial institutions themselves. It is worth reminding ourselves of the requirements. Prudent business management of financial institutions is dependent on … Continue reading

Regulation of private equity managers: What you need to know

By Shawn Barnett (ZA) on August 3, 2021 Posted in Finance

This blog has been co-authored by: Hishaam Khan, candidate attorney While private equity funds are not regulated in South Africa, managers of such private equity funds are subject to the Financial Advisory and Intermediary Services Act (FAIS Act) and to the Financial Sector Conduct Authority (FSCA) in terms of the Financial Sector Regulation Act. Fund … Continue reading

Broad-based ownership structures: Do they count?

By Shawn Barnett (ZA) on July 16, 2021 Posted in General

This blog was co-authored by Hishaam Khan, Candidate Attorney The Minister of Trade, Industry and Competition has recently clarified the confusion on whether Broad-Based Black Economic Empowerment (B-BBEE) trusts should be recognised as B-BBEE owners in B-BBEE structures for the purposes of the B-BBEE Codes of Good Practice. In the Practice Note published during May … Continue reading

Foreign collective investment schemes and FSCA discretion

By Shawn Barnett (ZA) and Hishaam Khan on June 9, 2021 Posted in Banking

The Financial Services Tribunal held, in May 2021, that a manager of a foreign collective investment scheme is not to be made subject to the limitations applied to a manager in terms of the Collective Investment Schemes Act of 2002 (CISCA), where an application is made to the Financial Sector Conduct Authority (FSCA) for permission … Continue reading

A warning to all unlicensed over-the-counter derivative providers

By Shawn Barnett (ZA) and Roxanne van Rooyen on September 10, 2020 Posted in General

JP Markets, which markets itself as a global forex powerhouse, has been placed under final winding up as a result of a successful liquidation application brought by the Financial Sector Conduct Authority (FSCA). The FSCA brought the application in terms of section 38B of the Financial Advisory and Intermediary Services Act (FAIS Act) and section … Continue reading

Entering into a compromise with creditors – ten things to consider

By Akhona Boloko and Shawn Barnett (ZA) on May 27, 2020 Posted in General

Companies may attempt to rearrange their financial affairs to minimise the financial impact of the pandemic (or for any other reason). Section 155 of the Companies Act provides an informal mechanism of restructuring a company’s obligations to creditors. Here are 10 things to consider when entering into a compromise with creditors: A compromise is an … Continue reading

10 things to know about OTC derivative provider licences in South Africa

By Shawn Barnett (ZA) on May 14, 2020 Posted in Banking

South Africa has supported the G20’s efforts to reduce the risk posed by over-the-counter (OTC) derivatives, and has put in place a regulatory framework for the licensing of OTC providers that originate, issue, sell or make a market in OTC derivatives. The Financial Markets Act 2002 prescribes criteria for the authorisation of OTC derivative providers. … Continue reading

10 things to know about business rescue

By Akhona Boloko and Shawn Barnett (ZA) on April 21, 2020 Posted in General

Business rescue offers a very useful alternative to the liquidation or winding-up of a company. During and after the pandemic, many companies may have to consider whether business rescue is an appropriate response to the economic impact that COVID-19 may have had on their business. Here are 10 things to know when considering business rescue: … Continue reading

Directors beware: The CIPC has not temporarily softened the solvency and liquidity test

By Alan Bryson and Shawn Barnett (ZA) on April 9, 2020 Posted in General

The content of a recent Companies and Intellectual Property Commission (CIPC) practice note in which the CIPC committed not to exercise its powers relating to temporarily insolvent companies must not be confused with the solvency and liquidity test. The board of a company is still obliged to fully apply the solvency and liquidity test wherever … Continue reading

Asset management in South Africa – Ten things to know

By Shawn Barnett (ZA) on March 18, 2018 Posted in Banking

1. Licensing of asset managers South African asset managers must register as financial service providers (FSPs) with the Financial Services Board (FSB) under the Financial Advisory and Intermediary Services Act (FAIS). Any person carrying on asset management business in South Africa, or from abroad directed at South African clients, whether in a discretionary or non-discretionary capacity … Continue reading