Legal updates and opinions
News / News
The FSCA declares crypto assets as financial products
by Kyra South, Senior associate, and Janice Geel, Candidate Attorney
Reviewed by Natalie Scott, Director in Banking and Finance and Head of Sustainability
Declared Crypto Assets as Financial Products
On 19 October 2022, the Financial Sector Conduct Authority (FSCA) published General Notice 1350 of 2022 in Government Gazette 47334 (Notice), wherein “crypto assets” were declared ‘financial products’ under section 1 of the Financial Advisory and Intermediary Services Act No. 37 of 2002 (FAIS Act).
In terms of the Notice and for purposes of the FAIS Act, a “crypto asset” is a digital representation of value that –
- is not issued by a central bank but is capable of being traded, transferred, or stored electronically by natural and legal persons for payment, investment, and other forms of utility;
- applies cryptographic techniques; and
- uses distributed ledger technology.
Crypto Assets Regulatory Working Group
The Notice comes after the Crypto Assets Regulatory Working Group of the Intergovernmental Fintech Working Group, in its position paper on crypto assets dated 11 June 2021, recognised that crypto assets must be incorporated within the South African regulatory framework.
The FSCA, in its policy document issued on 19 October 2022 supporting the Notice (Policy Document), sets out the effect, scope, licensing, and transitional provisions of the Notice. In terms of the Policy Document, crypto service providers in South Africa must apply for a licence between 1 June 2023 and 20 November 2023 to legally operate within South Africa or risk criminal conviction and a R10 million fine.
As a result, any person rendering crypto services and/ or selling crypto assets must be licensed as a financial service provider in terms of the FAIS Act.
The FSCA, in its press conference on 20 October 2022 stated that that the regulation and licensing of crypto assets is intended to protect consumers from crypto scams and empower the authorities to take action against such crypto scammers.
Even though the FSCA supports the Notice, it deliberately referred to crypto assets as opposed to cryptocurrencies, as the FSCA does not believe that cryptocurrency meets the criteria for currency.
Can crypto assets be exported?
The FSCA reiterated that currency (or legal tender) must
(i) store value,
(ii) have a unit of account,
(iii) have general acceptance and
(iv) be a medium of exchange.
Latest News
A new Covid 19 code: has anything really changed?
by Anastasia Vatalidis, Head of Labour & Employment, Sandile Tom, Director, and Benedict Ngobeni, Candidate Attorney On the heels of [...]
Affected persons are invited – again – to provide comments on The Code of Conduct for The Banking Association of SA
On 24 June 2022, the Information Regulator of South Africa (Information Regulator) published a notice in terms of section 61(2) [...]
Gerrymandering Healthcare? Certificate of need
The term "gerrymander" is used primarily in the context of shifting the boundaries or borders of voting constituencies in order [...]
Business Rescue Proceedings in South Africa
Business Rescue Proceedings A company should commence business rescue proceedings at the first signs of it being financially distressed, within [...]
To interdict or not to interdict: Parties continue to fall in the same pitfalls
Securing an interdict It has long been held, per Loomcraft Fabrics CC v Nedbank Ltd and another [1996] 1 All [...]
Can a Business Rescue Practitioner and a Curator Bonis hold hands?
The recent High Court judgment in National Director of Public Prosecutions v Knoop N.O and others; National Director of Public [...]
