| (1) |
The fund shall not be liable in respect of any loss suffered— |
| (a) |
by any person as a result of theft committed by a practitioner while such practitioner is in the employment of any person who is not a practitioner; |
| (b) |
by the wife of a practitioner as a result of any theft committed by that practitioner; |
| (c) |
by any practitioner as a result of any theft committed by any partner or employee of that practitioner or by any employee of any partnership in which he is a partner; |
| (d) |
by any practitioner as a result of any theft committed by any member or employee of a professional company of which he is a member; |
| (e) |
as a result of any theft committed by any practitioner whose fidelity has been guaranteed by any person, either in general or in respect of the particular transaction, to the extent to which it is covered by the guarantee; |
| (f) |
by any person as a result of any theft committed by any practitioner after such person has received a notification in writing from the secretary of a society or the board of control warning him against the employment or continued employment of such practitioner; |
| (g) |
by any person as a result of theft of money which a practitioner has been instructed to invest on behalf of such person after the date of commencement of this paragraph. |
[Section 47(1)(g) inserted by section 1(a) of Act No. 115 of 1998]
| (2) |
A claim for reimbursement as contemplated in section 26 shall be limited, in the case of money entrusted to a practitioner, to the amount actually handed over, without interest, and, in the case of securities or other property, to an amount equal to the average market value of such securities or property at the date when written demand is first made for their delivery, or, if there is no average market value, the fair market value as at that date of such securities or other property, without interest. |
| (3) |
Only the balance of any loss suffered by any person after deduction from the loss of the amount or value of all money or other benefits received or receivable by him from any source other than the fund, may be recovered from the fund. |
| (4) |
Subject to subsection (5), a practitioner must be regarded as having been instructed to invest money for the purposes of subsection (1)(g), where a person— |
| (a) |
who entrusts money to the practitioner; or |
| (b) |
for whom the practitioner holds money, |
instructs the practitioner to invest all or some of that money in a specified investment or in an investment of the practitioner's choice.
[Section 47(4) inserted by section 1(b) of Act No. 115 of 1998]
| (5) |
For the purposes of subsection (1)(g), a practitioner must be regarded as not having been instructed to invest money if he or she is instructed by a person— |
| (a) |
to pay the money into an account contemplated in section 78(2A) if such payment is for the purpose of investing such money in such account on a temporary or interim basis only pending the conclusion or implementation of any particular matter or transaction which is already in existence or about to come into existence at the time that the investment is made and over which investment the practitioner exercises exclusive control as trustee, agent or stakeholder or in any fiduciary capacity; |
| (b) |
to lend money on behalf of that person to give effect to a loan agreement where that person, being the lender— |
| (i) |
specifies the borrower to whom the money is to be lent; |
| (ii) |
has not been introduced to the borrower by the practitioner for the purpose of making that loan; and |
| (iii) |
is advised by the practitioner in respect of the terms and conditions of the loan agreement; or |
| (c) |
to utilise money to give effect to any term of a transaction to which that person is a party, other than a transaction which is a loan or which gives effect to a loan agreement that does not fall within the scope of paragraph (b). |
[Section 47(5) inserted by section 1(b) of Act No. 115 of 1998]
| (6) |
Subsection (1)(g) does not apply to money which a practitioner is authorized to invest where the practitioner acts in his or her capacity as executor, trustee or curator or in any similar capacity. |
[Section 45(6) inserted by section 1(b) of Act No. 115 of 1998]
| (7) |
A practitioner who has been instructed to invest money as contemplated in subsection (4) shall, as soon as practicable after he or she has received such instruction but prior to the receipt of the money to be invested, notify the person giving the instruction of the provisions of subsection (1)(g) in the form and manner prescribed by the board of control in terms of subsection (8). |
[Section 47(7) inserted by section 1(b) of Act No. 115 of 1998]
| (8) |
For the purposes of subsection (7), the board of control shall issue directives prescribing the form and manner in which a notice referred to in that subsection shall be given and may from time to time review and, if necessary, revise such directives. |
[Section 47(8) inserted by section 1(b) of Act No. 115 of 1998]
| (9) |
Pending the issuing of the directives contemplated in subsection (8), a notice referred to in subsection (7) shall— |
| (a) |
be drawn up by the practitioner; |
| (b) |
be signed by both the practitioner and the person giving the instruction; and |
| (c) |
contain a written acknowledgment by such person to the effect that he or she— |
| (i) |
has been informed by the practitioner concerned of the provisions of subsection (1)(g) and that he or she understands the effect thereof; and |
| (ii) |
admits that the fund shall not be liable in respect of any loss suffered by him or her as a result of theft of such money. |
[Section 47(9) inserted by section 1(b) of Act No. 115 of 1998]
| (10) |
Any practitioner who contravenes subsection (7) shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding two years. |
[Section 47(10) inserted by section 1(b) of Act No. 115 of 1998]
Older Persons Act, 2006
