(1) Every member who has one or more clients shall —
| (a) |
open and maintain a separate trust account at a bank; or |
| (b) |
utilise a separate trust account at a bank, opened and maintained by a stock exchange as defined in the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985), or by a financial exchange, to which the member belongs, |
and shall on the date of receipt of any payment from or on behalf of a client deposit in the account in question the cheque, draft or instrument by means of which such payment is made or alternatively deposit for same day value in such account funds equal to the amount of such payment: Provided that a deposit shall not be necessary if such payment —
| (ii) |
against such financial instruments being marked or recorded as the property of the buyer; or |
| (b) |
is preceded by a payment made by such member to a seller of listed financial instruments against delivery of such financial instruments to such member; or |
| (c) |
is made by a person to pay a debt due to the member: Provided that a debt arising from the purchase of listed financial instruments which has not been marked or recorded as the property of a buyer of listed financial instruments shall not be regarded as a debt due for this purpose; or |
| (d) |
is made in terms of any other law or the rules which specifically provide for such payment to be deposited into some other account. |
[Subsection (1) amended by section 7 of Act 73 of 1996]
| (2) |
Funds held in the trust account and any such funds which have not been deposited into the trust account as envisaged in subsection (1) but which are identifiable as belonging to a specific person, shall be deemed to be "trust property" as defined in the Financial Institutions (Investment of Funds) Act, 1984 (Act No. 39 of 1984), and the provisions of the said Act shall, unless otherwise provided for in this section, apply to such funds. |
| (3) |
Funds deposited into the trust account of a member may only be withdrawn by such member for the purposes of making payment — |
| (a) |
to the person or member entitled to such payment; or |
| (b) |
in terms of any other law or the rules: |
Provided that if after such withdrawal any deposited cheque, draft or other instrument against which such withdrawal was made is not subsequently honoured, the member shall pay the shortfall arising from such default into the trust account immediately.
| (4) |
All bank charges accruing in respect of a trust account shall be for the account of the member concerned except for those bank charges specifically related to a deposit or withdrawal of the funds of any person which shall, in such case, be for such person's own account. |
| (5) |
Any interest accruing on the funds in a trust account shall accrue to and shall be payable to the person entitled to such funds after the amount of any administration fee or charge to which the member may be entitled in terms of the rules or any other law, has been deducted. |
(6)
| (a) |
Notwithstanding any other law or the common law, an amount deposited or to be deposited in a trust account shall not under any circumstances form part of the assets of the member. |
| (b) |
Any excess remaining in the account after payment of or provision for all claims of persons whose funds have, or should have been deposited in such trust account, shall not be trust property as referred to in subsection (2). |
| (7) |
The division of the Supreme Court of South Africa having jurisdiction over a member may, on application by the executive committee, the Registrar or by any other person having a financial interest in or claim against a trust account referred to in subsection (1), on good cause shown, prohibit such member from operating such account in any way and may appoint a curator to control and administer such trust account with such rights, duties and powers in relation thereto as the court may deem fit. |
[Section 17B inserted by section 14 of Act 55 of 1995]
Older Persons Act, 2006
