Disclosure Requirements - Investment Funds - South Africa
Disclosure Category: 1
Under the laws of South Africa where the investment fund has been structured as a company, Clearstream Banking S.A. (“CBL”) may fall under a legal obligation of disclosure under the Companies Act, in the case of holding South African investment funds or foreign investment funds with a register located in South Africa.
Investment funds not structured as a company to which the Companies Act applies, the fund manager and its agents (for instance, the Registrar, Transfer Agent) may not be entitled to request disclosure of the underlying customer and beneficial owners.
In order to comply with the applicable legislation, customers with holdings in South African investment funds or entering into transactions in the South African market must consent and are hereby deemed to consent to the required legal disclosure. Such consent includes the appointment of the requestor (for example, the Fund Manager, Transfer Agent, Regulator) as their attorney-in-fact, under power of attorney, to collect from CBL the required information to be disclosed. Customers who do not grant such authority cannot hold such investment funds or financial instruments in their accounts with CBL.
Background and legal basis
Customers are advised that local laws and regulations (including section 56 of the Companies Act 2008) imposed an obligation on CBL to disclose in writing to the investment fund within five (5) business days after the end of every month during which a change has occurred in such information:
- The identity of the person on whose behalf that security is held by CBL; and
- The number and class of securities held for each such person with a beneficial interest.
The responsibility to notify CBL about changes to the identity of beneficial owners or holdings falls on the customer.
If the investment fund knows or has reasonable cause to believe that any of its securities are held by one person for the beneficial interest of another, by notice in writing, may require through CBL and within ten (10) business days after the receipt of the notice, either of those persons to
- Confirm or deny that fact;
- Provide particulars of the extent of the beneficial interest held during the three (3) years preceding the date of the notice; and
- Disclose the identity of each person with a beneficial interest in the securities held by that person.
The investment fund may be required to establish and maintain a register of the disclosures that may be open to public inspection. The investment fund may be obliged to publish in its annual financial statements, a list of the persons who hold 5% or more of the total number of that class of securities issued by the investment fund, together with the extent of such interests.
Contravene of any provision of the Companies Act may trigger the Commission to issue a compliance notice. Failure to comply with the compliance notice is considered an offence, and the penalty for conviction includes either a fine or imprisonment or both.
The information contained in the Disclosure Requirements is based on the legal opinion obtained by CBL that was issued on 18 September 2015. CBL believes the information to be correct as of that date but disclaims any responsibility as to the accuracy and completeness of the information after that date. In the case of discrepancy between the information provided by CBL and the local laws and regulations, the latter shall prevail. The Disclosure Requirements do not constitute legal advice and customers should seek advice from independent professional counsel.
Customers are responsible for ensuring compliance with the disclosure requirements and agree to indemnify and hold harmless, CBL, for any loss, expense, liability, damage or claims, whether direct or indirect, against or incurred by CBL arising out of or resulting from such non-compliance.