| (a) |
Every authorised user must open and maintain a trust account at a bank designated for client funds, or may use such an account opened and maintained by an exchange, into which any instruments of payment or cash received from a client must be deposited on the day of receipt: Provided that any deposit that is made by a client directly into an authorised user’s own account, or any deposit that is received after banking hours, must be transferred into such trust account by the start of business on the next day. |
| (b) |
A trust account referred to in this subsection may contain only funds of clients and not those of an exchange or authorised user. |
| (2) |
Funds received from a client need not be deposited into a trust account if payment— |
| (i) |
against delivery of such securities to the buyer; or |
| (ii) |
against such securities being marked or recorded as the property of the buyer; or |
| (b) |
is preceded by a payment made by the authorised user to the seller of listed securities against delivery of such securities to the authorised user; or |
| (c) |
is made to pay a debt due to the authorised user: Provided that a debt arising from the purchase of listed securities which have not been marked or recorded as the property of the buyer of the securities, may not be regarded as a debt due for this purpose; or |
| (d) |
is made in terms of any other law or exchange rule which specifically provides for such payment to be deposited into some other account. |
| (3) |
Funds held in a trust account and any funds which have not been deposited into a trust account as envisaged in subsection (1) but which are identifiable as belonging to a specific person, are considered to be "trust property" as defined in the Financial Institutions (Protection of Funds) Act, and that Act applies to those funds, subject to this section. |
| (4) |
Funds deposited into a trust account may only be withdrawn by an authorised user for the purpose of making payment— |
| (a) |
to the person entitled to the payment; or |
Provided that if, after the withdrawal, any deposited cheque, draft or other instrument against which the withdrawal was made is not subsequently honoured, the authorised user must pay the shortfall arising from the default into the trust account immediately.
| (5) |
All bank charges accruing in respect of a trust account are for the account of the authorised user except that bank charges specifically relating to a deposit or withdrawal of the funds of a client are for that client’s own account. |
| (6) |
Any interest accruing to the funds in a trust account is payable to the owner of the funds after any fees owed to the authorised user or exchange has been deducted. |
| (7) |
Any excess remaining in a trust account after payment of or provision for all claims of persons whose funds have or should have been deposited in the trust account, is not trust property as contemplated in subsection (3). |
| (8) |
The division of the High Court of South Africa having jurisdiction over an authorised user may, on the application of an exchange, the Authority or any other person having a claim against a trust account of the authorised user, on good cause shown, prohibit the authorised user from operating the trust account, and may appoint a curator to control and administer the trust account with such rights, powers and duties in relation thereto as the court may consider necessary. |
Older Persons Act, 2006
