STOCKBROKERS: AUDIT AND ACCOUNTING GUIDE

Transcription

1 STOCKBROKERS: AUDIT AND ACCOUNTING GUIDE Revised and issued October 2004 Every effort is made to ensure that the advice given in this guide is correct. Nevertheless that advice is given purely as guidance to members of SAICA to assist them with particular problems relating to the subject matter of the guide and SAICA will have no responsibility to any person for any claim of any nature whatsoever which may arise out of or relate to the contents of this guide.

2 COPYRIGHT 2004 THE SOUTH AFRICAN INSTITUTE OF CHARTERED ACCOUNTANTS Copyright in all publications originated by The South African Institute of Chartered Accountants rests in the Institute. Apart from the extent reasonably necessary for the purposes of research, private study, personal or private use, criticism, review or the reporting of current events, as permitted in terms of the Copyright Act (No. 98 of 1978), no portion may be reproduced by any process without written permission. ISBN THE SOUTH AFRICAN INSTITUTE OF CHARTERED ACCOUNTANTS P O BOX 59875, KENGRAY, 2100

3 Stockbrokers: Audit and Accounting Guide AUDIT GUIDE CONTENTS Page Paragraphs Preface 1 Knowledge of the environment 2 Background information Regulatory environment The equities dealing process The STRATE custody and settlement process Segregation of client funds Capital adequacy requirements Securities lending JSE broker Deal Accounting (BDA) system SWIFT and Merva Reporting to clients Audit Guide 21 Accounting Guide 37 Page Appendix A Other business typically conducted by JSE members 43 Appendix B Risks inherent in a stock broking environment and typical control procedures 49 Appendix C Standard BDA accounts 58 Appendix D Reports available on BDA 62 Appendix E Guidance on CSDP reconciliations 65 Appendix F JSE Consolidated Mandate 70 Appendix G Summary of general requirements for managed account mandates 84 Appendix H Proforma reports to the JSE and schedule of reporting deadlines 87 Appendix I Glossary of abbreviations and acronyms 98

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5 PREFACE This publication has been developed by the Stockbrokers Project Group of The South African Institute of Chartered Accountants (SAICA) in order to provide practical guidance on the auditing and accounting issues related to the accounts of Stockbrokers. The principal objectives of the guide are to describe the unique operating environment in which Stockbrokers operate, and to ensure that the key risk areas inherent in their businesses are adequately addressed during their audits. It is presumed that any audit will be conducted in terms of statements of South African Auditing Standards (SAAS) and that Stockbrokers financial reporting will comply with South African Statements of Generally Accepted Accounting Practice (GAAP) and the Companies Act in South Africa. Consequently, familiarity with the requirements of SAAS, Statements of GAAP and the Companies Act is assumed. Whilst auditing and accounting guides do not have the authority of either SAAS or Statements of GAAP, in the event of any significant deviation from the guidance embodied in this document, the auditor may be required to demonstrate that such deviation was justified. The Guide is not intended to be a static document, and it is the intention of SAICA to issue revised versions from time to time to take account of changes in the markets and regulatory environments in which Stockbrokers operate. The audit risk standards comprising international standards on auditing (ISA) 315 Understanding the entity and its environment and ISA 330 The Auditors Procedures in Response to Assessed Risks have not been taken into account in drafting this guidance. Auditors are therefore requested to consider these auditing standards when they become effective. The effective date of these ISA standards is 15 December Stockbrokers fall into one or more of the following categories of JSE membership of the JSE Securities Exchange South Africa (JSE): Broking JSE members (equities) Custody and settlement JSE members Financial derivative JSE members Agricultural products JSE members This Guide is intended to give guidance relevant to broking JSE members (equities) and custody and settlement members only. Hereon referred to as Stockbrokers This Guide assumes a fully dematerialised scrip environment. Where Stockbrokers continue to deal with paper share certificates in the process of dematerialisation, auditors are referred to the Stockbrokers Auditing and Accounting Guide published by SAICA in January

6 KNOWLEDGE OF THE ENVIRONMENT Background information Markets.01 JSE members trade predominantly in equities and warrants listed on the JSE, but many also trade in the following markets: BESA (Bond Exchange of South Africa), which facilitates trading in fixed interest securities, specifically those issued by the South African Government, Municipalities, Local Authorities, Statutory Bodies or similar institutions. The money market, which involves the placement of client funds on call or in fixed deposit accounts, and the trading of money market instruments such as banker s acceptances, negotiable certificates of deposit, treasury bills and commercial paper. Exchange-traded and over-the-counter (OTC) derivatives markets. Previously a separate exchange listing contracts in financial and agricultural futures and options, South African Futures Exchange (SAFEX) was purchased by the JSE on 1 July Appendix A contains further details regarding JSE members activities in these markets. Services offered.02 The most common types of services offered by JSE members include the following: Buying and selling securities and financial instruments on behalf of clients. Settlement and administration of market deals, which would include activities such as the borrowing of securities on behalf of clients to facilitate settlement, dematerialising share certificates and processing corporate actions. Providing research and advice to clients to assist them in the buying and selling of securities and financial instruments. Actively managing a client s portfolio by making buying and selling decisions on behalf of the client. Providing portfolio services to clients, including the distribution of regular account and portfolio valuation statements and the preparation of Capital Gains Tax statements. Providing corporate finance advice or sponsorship services to corporate clients. Role players.03 JSE members typically interact with the following role players in the financial markets: Regulators Regulators are responsible for the maintenance of sound and equitable financial markets. JSE members are regulated by the JSE and are required to comply with rules and directives issued by the JSE. Compliance officers Compliance officers are employees of the JSE member firms who are responsible for ensuring that the JSE member complies with all applicable laws and regulations. Central Security Depository Participants Central Security Depository Participants (CSDPs) are authorised by STRATE to maintain and update Central Securities Accounts in the Central Security Depository in which dematerialised securities are held. JSE members communicate with CSDPs in order to ensure the settlement of market deals, and are also responsible for regularly reconciling their records with those of the CSDP. Custody and Settlement Agents JSE members may outsource their custody and settlement function to Custody and Settlement Agents (CSAs). 2

7 Nominee companies Nominee companies are subsidiaries of the JSE members and are used to hold clients securities in order to segregate them from the JSE members own assets and to ensure the efficient processing of deal settlement and corporate actions. Insurance cover.04 All JSE members are protected by an insurance policy taken out by the JSE, known as the in and out insurance policy..05 The policy covers a JSE member that incurs a loss after dealing in good faith in securities that subsequently prove to be counterfeit, fraudulently altered, forged or stolen. It also generally covers losses and third party liabilities incurred as a consequence of fraudulent acts by partners, directors and employees of a JSE member..06 The importance of the policy to the clients of JSE members is that it provides JSE members with a means of reimbursing clients for losses suffered by them due to fraud or theft in their accounts. Regulatory environment.07 The Financial Services Board Act established the Financial Services Board (FSB), which is tasked with the regulation and supervision of the South African financial markets in which the JSE is an important role player, with a view to providing sound and efficient financial institutions..08 The Stock Exchanges Control Act regulates the establishment and the operation of the JSE, and provides the legislative framework for trading in listed securities and the management of investments in securities. The FSB is tasked with the responsibility of administering the Stock Exchanges Control Act. It does this by granting an annual renewable licence to the JSE to operate the exchange and regulate the activities of its members. The FSB is also responsible for approving the JSE rules and directives and acts as an ex officio JSE member of certain JSE committees..09 The Surveillance Division of the JSE promotes the integrity of the market by ensuring compliance by JSE members with the JSE s trading rules, and by monitoring trades on the exchange to detect market abuse. The Surveillance Division also monitors the conduct of JSE members to enhance investor protection on the exchange and ensures that the JSE members are adequately capitalised..10 In fulfilling its responsibilities for investor protection and the monitoring of capital adequacy, the Surveillance Division places significant reliance on the auditors of JSE members firms to provide them with additional assurance regarding the extent of compliance by JSE members with a number of rules and directives..11 In addition to reporting on a JSE member s annual financial statements, auditors are specifically required to report on issues such as the existence of securities and cash balances held by the JSE member on behalf of its clients, and the JSE member s compliance with directives regarding its accounting records and the JSE member s capital adequacy position..12 The Surveillance Division has electronic access to all JSE members accounting records and uses a Surveillance Database and Surveillance System to interrogate and analyse these records. Much of the Surveillance Division s monitoring of compliance by JSE members with the JSE rules and directives is conducted with the use of these surveillance tools. For example, JSE members capital positions, the segregation of client funds and the balancing of securities held by the JSE members with the records of their custodian can all be monitored, to some degree, through the Surveillance System. The Surveillance Division also makes enquiries of JSE members and conducts inspections of their activities..13 The Surveillance Division encourages bilateral discussions with the auditors of JSE members on perceived non-compliance or areas of concern that fall within the scope of an auditor s reporting obligations. This enables the auditors to elaborate on any of their findings that may be of relevance to the Surveillance Division in performing its role. 3

8 .14 The Director: Surveillance specifically credentialises auditors of JSE members in terms of Directive DG by approving the proposed audit partner responsible for the audit..15 Amongst its other responsibilities, the Surveillance Division also ensures that applicants for JSE membership meet all of the requirements set by the JSE before they can be admitted; and it initiates disciplinary action against JSE members, officers and employees of JSE members, if the results of an investigation indicate that such action is warranted..16 Due to recent changes in the environment in which JSE members operate, in particular the dematerialisation of share certificates and the introduction of an electronic settlement system for share transactions, certain legislation has been updated, and further changes are in the process of approval. Most importantly, the Stock Exchanges Control Act and a number of other statutes affecting the JSE and the stock broking environment are being replaced by the Securities Services Act, which is expected to be promulgated in the last quarter of Consequently, the guidance provided in this Guide on regulations affecting JSE members is expected to change once this approval is obtained. The new Act is also expected to result in changes to the reporting requirements applicable to the audit of a JSE member, particularly those in respect of various compliance matters..17 The most important legislation affecting JSE members is the Stock Exchange Control Act, which is dealt with below. Stock Exchanges Control Act.18 Although auditors should have a thorough knowledge of the Stock Exchanges Control Act (SECA) in order to adequately understand the risks inherent in JSE member audits, sections 43(2)(b)(iv) and 44 specifically require the auditor to report, within three months of the JSE member s financial year end, on the JSE member s compliance with the following key sections: Section 14: JSE members are required to maintain separate trust accounts in which they deposit client funds, thus segregating client funds from the JSE member s own funds. Sections 22, 23 and 25: These sections set out the legislative framework for the settlement of purchase and sale transactions by clients, including carry account transactions, and specify the procedures to be adopted should clients fail to settle their transactions within the specified time period (which is T+5 per the JSE Rules). Section 36: Securities under a JSE member s control are to be marked in such a way that the owner of the securities can be identified. (In practice, the process of marking securities involves an allocation of the securities to the owner in the JSE member s electronic records.) Section 37: JSE members may not alienate client securities without authorisation from the client. Section 38: JSE members may not pledge client securities or repledge securities that a client has pledged to the JSE member. Section 43(2)(b)(iv)(bb): This requires the auditor to report on compliance with the regulations relating to accounting records and capital adequacy (refer paragraph.27 below). Section 43(2)(b)(iv)(cc): This requires the auditor to report on compliance with rules governing the following. - Maintenance and operation of the trust account. - Capital adequacy. - Marking of documents of title. - The granting of credit. - Lending or pledging of securities. - Issuing of receipts. - Holding or delivery of share certificates. 4

9 Regulations to the Stock Exchanges Control Act.19 Section 43(2)(b)(iv)(bb) of SECA requires the auditor to report on compliance by the JSE member with the following Regulations to the Act: Regulation 4 contains minimum standards for JSE members accounting records, including requirements relating to reconciliations and the balancing of securities held in custody. Regulation 5(3)(d) states that JSE members records shall disclose financial and business information to enable JSE members to monitor their compliance with capital adequacy requirements..20 Regulation 6 (1) requires the auditor to report on: whether securities entrusted to the JSE member or for which the JSE member was accountable to any person were registered and held in accordance with the Act, the Regulations and the applicable mandates, whether the auditor is aware of instances where the JSE member did not maintain adequate capital during a material portion of the financial year, and whether or not the financial statements fairly present the JSE member s financial position, results of operations and cash flow information in accordance with Statements of GAAP. JSE Rules.21 The following are the important JSE rules on which an auditor is specifically required to report in terms of Section 43(2)(b) of SECA: Maintenance and operation of the trust account Rule states that every JSE member shall open and maintain a separate trust account at a bank as prescribed in section 14 of the SECA. Rules , , , , , , and relating to monies that are required to be deposited with JSE Trustees (Pty) Ltd (JSET). Capital adequacy Rule 4.55 states that every JSE member is required to hold at all times net assets that comply with the financial resources requirements set out in Rules to Rule states that every Custody and Settlement JSE member (CSM) is required to hold at all times net assets that comply with the financial resources requirements set out in Rules to Marking of documents of title Rule lists the JSE members responsibilities in respect of the marking of scrip held in safe custody. Granting of credit No Rules dealing with carry accounts (refer definition in Rule 2.40) Lending or pledging of securities Rule deals with the borrowing, lending or use of clients uncertificated securities. Issuing of receipts Rule deals with the issuing of a receipt where a security is received from a controlled client for retention in safe custody Holding or delivery of share certificates Rule lists the JSE members responsibilities in respect of scrip held in safe custody..22 The following are important JSE rules that have an impact on the matters on which an auditor is required to report in terms of JSE directive DG 1.7: 5

10 Rule lists the JSE members responsibilities in respect of the operation of managed accounts. Rule regulates the holding of Krugerrand coins in safe custody on behalf of clients. Rule regulates the holding of Money Market instruments on behalf of clients. Rule lists the JSE members responsibilities in respect of the operation of controlled client accounts, including the custody requirements, provisions relating to mandates and the deposit of client funds with JSET. Rule deals with the operation of managed discretionary and non-discretionary portfolios in respect of uncertificated securities. Rule requires the timeous allocation of securities purchased in the JSE member s nominee register..23 Although auditors are not currently required to report on any other JSE rules except for those listed above, attention is drawn to the following important JSE rules: Rule 3.100, which sets out the role of a JSE member s compliance officer and its audit committee, including the presence of the external auditor at meetings of the audit committee. Rule 5.15, which sets minimum standards for client acceptance and account maintenance procedures. Rules and 5.270, which regulate money broking operations. Rules and 5.350, which regulate the acquisition of foreign portfolio investments on behalf of managed clients. Rule 14 generally, which deals with the trading and settlement procedures for STRATE approved securities, but in particular; Rules , and , which set out noncontrolled client, controlled client and JSE member settlement obligations respectively..24 JSE Directives Directive BK contains the requirements relating to the operation of non-resident controlled client accounts by a JSE member. Directive DA contains further minimum standards in respect of a JSE member s financial records, risk management procedures and internal control systems. Directive DC2 describes in detail how a JSE member should calculate the Capital Adequacy Requirements as laid down in the rules. Directive DF states that the auditor of a JSE member of the stock exchange must have professional indemnity insurance cover of at least R7.5 million. Directive DG 1.2 states that the appointment of an auditor by a JSE member shall be conditional upon the approval of the appointment by the Director: Surveillance. Directive DG states that the auditors shall report their opinion on whether or not there are adequate controls over signed mandates for safe custody and managed accounts, and that these controls were tested in accordance with SAAS. Directive DG states that the auditor, as part of the audit of the financial statements, must satisfy himself/herself as to the existence of securities, bonds, Kruger-Rands, documents of title and cash balances by counting those held by the JSE member and/or confirming those held by a third party, and by obtaining confirmations of the securities, bonds, Kruger-Rands, documents of title and cash balances of clients from those clients. Directive DG states that the auditors report shall confirm that the auditors have satisfied themselves of the existence of the securities, bonds, Kruger-Rands, documents of title and cash balances. Directive DG states that the JSE member shall require the auditor to perform the following: 6

11 - Audit the register of mandates. - Audit the register of pledges. - Confirm cash held by JSET and banks. Directive BO states that the auditor is to confirm in writing that all JSE members of the audit team have confirmed their independence from the JSE member before and after the audit. Companies Act.25 The Companies Act is applicable since most JSE members are registered as companies..26 Other important legislation affecting the activities of JSE members includes the matters dealt with below. Financial Markets Control Act.27 The Financial Markets Control Act (FMCA) is the equivalent of SECA in respect of financial instruments, including bonds and derivative instruments. Derivative JSE members of the JSE and JSE members of BESA are regulated in terms of the FMCA, and the JSE derivatives market and BESA are licensed in terms of the FMCA. The FMCA is also being incorporated into the new Securities Services Act. Usury Act.28 The Usury Act provides for limitations on, and disclosure of, finance charges relating to money lending transactions, credit transactions and leasing arrangements. Many JSE members charge finance charges on amounts owing by their clients. The Usury Act does not lay down specific audit reporting requirements. Uncertificated Securities Tax Act.29 This Uncertificated Securities Tax Act (UST) levies a tax on the issue and the change in beneficial ownership of uncertificated securities. The UST specifies the tax rate to be levied and the responsibility for payment of the tax liability on such transactions. Custody and Administration of Securities Act.30 The Uncertificated and Administration of Securities Act (CASA) provides for the licensing of Central Depositories and regulates the conduct of the depositories. It also gives power to the Executive Officer of the FSB to register a depository and to set out Rules that the depository must comply with. It also sets out rules that the participants in the depository are to abide by. CASA is also being incorporated into the Securities Services Act. Inspection of Financial Institutions Act.31 The Inspection of Financial Institutions Act (IFIA) provides for the inspection of financial institutions and the affairs of unregistered entities conducting themselves as financial institutions..32 The IFIA gives power to the Executive Officer of the FSB to appoint inspectors to conduct the abovementioned inspections. Insider Trading Act.33 The objectives of the Insider Trading Act are to: prohibit the dealing in securities by individuals that have inside information, prohibit individuals with inside information from inducing others to deal in such shares, provide for penalties for such deals, empower the FSB to investigate such matters, institute proceedings and administer the proof of claims and payments as a result of proceedings, and establish a Directorate as a committee of the FSB to institute proceedings against offenders. The Insider Trading Act requirements are being incorporated into the proposed Securities Services Act. 7

12 Financial Intelligence Centre Act.34 The Financial Intelligence Centre Act (FICA) establishes a Financial Intelligence Centre (FIC) and a Money Laundering Advisory Council (MLAC) in order to combat money laundering activities and to impose certain duties on institutions and other persons that otherwise might be used for money laundering purposes..35 The principal objective of the FIC is to assist in the identification of the proceeds of unlawful activities and the combating of money laundering activities..36 The MLAC advises the Minister of Finance on policies and best practices to identify the proceeds of unlawful activities and to combat money laundering activities..37 The FICA imposes a duty on accountable institutions, which specifically include JSE members of a stock exchange, to disclose information to the FIC at the FIC s request, and to report to the FIC any suspicious or unusual trades or any cash transactions or electronic transfers exceeding prescribed limits of which the institution becomes aware..38 In terms of FICA, accountable institutions are also required to identify their clients positively, document their anti-money laundering procedures and provide adequate money laundering training to their staff..39 The JSE is appointed in terms of the FICA as a supervisory body and is responsible for supervising compliance by its JSE members with the provisions of FICA and the regulations and exemptions therefrom. The equities dealing process.40 JSE members may trade in various exchange-traded securities and financial instruments including equities, warrants, equity options, futures, and options on futures; as well as money market instruments. Listed equities.41 The equities market is governed by the SECA and the JSE rules and directives. JSE members may act as agent or principal when trading in equities. When acting as a principal in a transaction, a JSE member may not deal directly with a client unless it has a signed mandate in the prescribed form prior to execution of the transaction or unless it is dealing with a foreign dealer. JSE members must at all times adhere to the best execution principle, taking reasonable care to obtain the result that is best available for the client in the equities market..42 Equities are traded through the Stock Exchange Trading System (SETS). Orders are prioritised upon entry of the order in terms of price and then in terms of time. A JSE member must specify whether it is acting as an agent or a principal when submitting an order to the SETS system. SETS matches bids and offers in a particular security based on the price and then time priority (the best possible price offered will be satisfied first and where more than one offer exists at that price, the order placed first at that price). All matched trades will then be passed from SETS, via JSE broker Deal Accounting (BDA), to South African Instruments Realtime Instruments Settlement System (SAFIRES) for settlement..43 The general legislative requirements with regard to the settlement of equity transactions on the JSE are set out in Sections 22 to 27 of the SECA. These sections indicate that transactions are generally to be settled within seven business days or such other prescribed period. However, in the STRATE environment, this 7 day rule no longer applies, and the prescribed period is effectively that stipulated in the JSE rules, which is currently five days after date of trade on a rolling settlement basis..44 The settlement of transactions executed through the SETS main order book is guaranteed by the JSE. JSE members may also report certain transactions that meet specific criteria to SETS without having to effect such transactions though the main order book. Reported transactions are, however, not guaranteed by the JSE. 8

13 .45 JSE members are responsible for and guarantee the due fulfilment of all transactions entered into by them, except those reported transactions where the clients that are the parties to such transactions have, between themselves, concluded the terms of the transaction and instructed the JSE member to report the transaction through SETS. Rule also requires JSE members to ensure that buyers and sellers of listed securities are aware of their material obligations in terms of SECA and the JSE rules..46 When acting for a client, JSE members may deal either: on the client's specific instructions; or if the client has a discretionary managed account, at the JSE member's discretion..47 The BDA system produces a daily transaction blotter of all deals and a JSE broker s note for each client deal. JSE brokers notes should be checked by the JSE member to the original order and the trading sheet before being sent to the client. Misdeals.48 Misdeals arise from incorrectly executed or incorrectly reported client deals. In order to correct such errors, JSE members take these deals on as their own proprietary stock positions. The position can only be cleared through the market in transactions with another JSE member or foreign agent. Profits or losses incurred on misdeals are for the JSE member's own account. Bear sales.49 A bear sale or short sale is a transaction involving the sale of securities where the seller is not the owner of those securities. Bear sales are undertaken in the hope that the price of the securities will fall, allowing the seller to buy them in at a lower price before the securities have to be delivered to the JSE member..50 A bear sale may not be entered into without the JSE member ensuring that a securities borrowing arrangement is in place. A securities borrowing arrangement would normally have the following features: The securities borrowing arrangement would be concluded with a lending desk of one of the large banks or of another JSE member. These lending desks source the securities either from one of the other lending desks or from an institutional holder. For each security that is borrowed from the lender, the JSE member is required to put up collateral with the lender, either in cash or shares, at a rate determined by the lender. The JSE member will earn interest on the cash collateral. Carry transactions.51 A carry transaction is one in which a client is not obliged to pay for securities purchased on its behalf by the JSE member on or before the normal settlement date. The JSE member extends credit to the client, for an agreed period. The JSE member normally charges interest during this period. The client is required to deposit minimum cover with the JSE member in accordance with Section 23 of the SECA and as defined in Section 2 of the JSE rules. Arbitrage.52 An arbitrage transaction is one in which a JSE member, for its own account, purchases securities on one stock exchange and sells those securities on another stock exchange, with the aim of profiting from a difference in price of the particular securities between the two exchanges. Jobbing.53 Jobbing is an activity whereby a JSE member buys or sells securities, for its own account, with the intention of selling or buying those securities to close out the position and realise a profit in the short term. Intraday jobbing results in only the net quantity of the particular securities traded and the net purchase or sale consideration being settled on the settlement date. 9

14 Soft dollars.54 In some instances, JSE members will grant incentives to asset managers to direct trades to the JSE member. These incentives can either take the form of a portion of the JSE brokerage fee charged to the underlying client being shared with the asset manager, or a free or discounted service being provided to the asset manager (eg. investment research), or a service being purchased by the JSE member and provided to the asset manager, such as financial information or publications. Such arrangements are referred to as soft dollars or soft commissions..55 JSE members should nevertheless be aware of their duty to act in the best interest of their client. The JSE rules require soft dollar arrangements to be disclosed to the JSE member s client..56 It should be noted that soft dollar arrangements are currently under scrutiny from international regulators and there is a move to place restrictions on such arrangements. The STRATE custody and settlement process.57 STRATE is an electronic clearing, settlement and custody system for securities listed on the JSE. STRATE is South Africa s Central Securities Depository (CSD) for equities, warrants and bonds. Dematerialisation.58 Dematerialisation is the exchange of certificated scrip (physical certificates and certified deeds) for an uncertificated electronic record of ownership of securities. The investor approaches either a CSDP or a JSE member to effect the dematerialisation process..59 All securities dematerialised by JSE members must be registered in the name of the JSE member s nominee company before they will be accepted for dematerialisation by the JSE broker s CSDP..60 The CSDP communicates electronically with the transfer secretary concerned, while simultaneously surrendering the physical share certificates. The transfer secretary confirms the validity of the share certificate, cancels the original certificate and deletes the certificated record on the register of JSE members. The transfer secretary then advises STRATE of the successful dematerialisation order, providing it with the International Securities Identification Number (ISIN) and quantity of shares dematerialised. STRATE then credits the CSDP s account held with STRATE and the CSDP credits the client s account or JSE member s account in the subregister. Once the shares are dematerialised and reflected as an electronic entry, they may be sold on the JSE..61 If a JSE member has submitted share certificates for dematerialisation, it will update its record of dematerialised holdings on the BDA system only once the CSDP confirms to it that the securities have been dematerialised. Rematerialisation.62 Shareholders are allowed to rematerialise their shares and obtain share certificates. The CSDP affects the rematerialisation of securities by deleting the shareholding entry from its electronic subregister records and requesting the transfer secretary to issue a share certificate. STRATE then debits the CSDP s account held with STRATE and the transfer secretary includes the shareholder s name in the register of JSE members and issues the paper certificate. However, the rematerialised securities cannot be sold on the JSE. Equities settlement process on STRATE.63 When a client places an order to trade through a JSE member, the JSE member enters the order on the SETS where it will be matched automatically with an equal and opposite order. This trade is classified as being an On-Market Trade..64 Once the trades are matched on SETS, the trade will be passed from SETS, via the BDA System, to the SAFIRES..65 SAFIRES is an electronic real-time, integrated depository, clearing and settlement system. This system provides a gateway for participants to access and use the clearing and depository services provided by STRATE. 10

15 .66 Off-market trades are trades in uncertificated securities not concluded through the SETS. These trades are reported by the seller and the purchaser of the uncertificated securities to the relevant CSDP, for settlement through STRATE..67 SAFIRES will in turn send instructions to a CSDP using the SWIFT network (refer to paragraphs.138 to.140) for the relay of electronic messages..68 If the client is a non-controlled client that has appointed its own CSDP, it indicates to the CSDP that settlement may occur. The CSDP, through a commit process, confirms to SAFIRES that the settlement may proceed. The commit process is a conditional undertaking by the CSDP to ensure that the transaction will settle on settlement day. If the client is a controlled client on behalf of whom the JSE member holds securities and funds, and for whom the JSE member settles transactions, the JSE member s CSDP will auto commit to settling the transactions without requiring a specific instruction from the JSE member, provided there are sufficient securities in the JSE member s securities custody account with the CSDP. On settlement day, SAFIRES confirms the availability of shares through the reservation process. If the reservation at CSDP level is successful, SAFIRES proceeds to send a request for the transfer of funds to the South African Reserve Bank (SARB)..69 Once the availability of funds has been confirmed, and money has been transferred between SARB accounts at the CSDP level, SAFIRES will transfer ownership within CSDP uncertificated securities accounts in SAFIRES..70 For transactions that do not involve payment (such as account transfers and free of value orders), transfers will be effected on the settlement date, provided the participants have a sufficient securities balance..71 Confirmation of successful settlement is then relayed by SAFIRES to the CSDP, which reflects the entry in the CSDP s books at client level. At the end of the business day, transactions that could not be settled (due to lack of security or funds) will be treated as failed. Warrants settlement process on STRATE.72 The Listings Department of the JSE approves the new issue of warrants. Thereafter it allows two business days to enable STRATE to finalise the administration prior to listing. In addition to the normal application, the issuer of the warrant will need to furnish the Listings Department with its STRATE CSDP details including its custody account number in SAFIRES..73 The required master file data for the warrant will be loaded in the CSD. On activation date, the issued warrants will be credited to the securities custody account of the issuer in the CSD..74 When an exercise for cash occurs, the JSE member will book a WX (exercise of warrants) trade via SETS. This process will allow the holder to receive the cash, and the warrant will be moved back to the securities custody account of the issuer..75 When an exercise for the underlying share occurs, this will be processed as an off-market trade. The movement of the warrant will be handled by way of delivery free of payment/receipt free of payment (DFP/RFP) off-market trades reported to STRATE via the CSDPs. This will allow the movement of the warrant from the holder to the issuer..76 The underlying will also be settled off-market on the same day as the warrant is settled by way of a delivery versus payment/receipt versus payment (DVP/RVP). This will allow the movement of the underlying from the warrant issuer to the holder s account. The off-market trades will settle on a T+5 cycle. Rolling and contractual settlement.77 Rolling settlement refers to a settlement environment in which transactions become due for settlement a fixed number of business days after trade. In South Africa, rolling settlement has been introduced on a T+5 basis (where T=trade date). 11

16 .78 Contractual settlement is a market convention embodied in the rules of the JSE rules, which state that a client has a contractual obligation to cause a JSE trade to settle on settlement day. The JSE, in its capacity as Settlement Authority, ensures that all on-market trades entered into by two JSE members settle five days after the trades are entered into. The investors thereby obtain the assurance that their transactions will settle on the specified settlement day. The appropriate cash and share accounts will be debited/credited on the settlement day..79 A settlement timetable setting out all the actions and events that should occur from the period prior to a trade being executed through to settlement day at T+5 is contained in JSE Directive EF. Controlled and non-controlled clients.80 A controlled client is one whose securities and funds are under the control of the JSE member or whose settlements take place via the JSE member s CSDP, while a non-controlled client is one that has appointed its own CSDP to act on its behalf..81 A controlled client keeps its securities with its JSE member and uses the CSDP of the JSE member s choice. The client s regular account statement comes from its JSE member..82 A non-controlled client nominates a CSDP, opens a securities account with the CSDP and deals with a JSE member only when it wants to trade. The non-controlled client also has banking facilities with the CSDP to facilitate the settlement of funds. The client receives a custody account statement directly from the CSDP. Settlement of controlled client transactions.83 It is important for auditors to familiarise themselves with the settlement process in respect of controlled client transactions in order to understand the nature of certain accounts in the JSE member s records and the flow of funds during the settlement process..84 Each JSE member is required in terms of the JSE rules to open and maintain a funds settlement account at a bank through which the settlement of controlled client transactions is effected. On settlement day, the JSE member is required to fund its settlement account from its current account with the total value of all controlled client and proprietary purchases. This figure is computed by BDA and is provided to the JSE member s CSDP. BDA also initiates a transfer from JSET to the JSE member s current account on settlement day of the total amount of client funds held by the JSE member in JSETs to cover those purchases. As the settlement cycle commences, the funds transferred to the JSE member s settlement account will be withdrawn by the CSDP to pay for the shares purchased..85 During the settlement cycle, the proceeds in respect of the sale of shares on behalf of controlled clients and in respect of proprietary sales is deposited into the JSE member s settlement account by their CSDP. BDA also computes the value of sales on behalf of controlled clients, less any charges (JSE brokerage, Value Added Tax (VAT), Uncertificated Securities Tax), and initiates an instruction to the JSE member s CSDP to transfer that amount from the JSE member s settlement account to JSET. The balance remaining in the JSE member s settlement account at the end of the settlement cycle should represent the proceeds of proprietary sales and any charges on controlled client sales, and this amount should be auto-cleared to the JSE member s current account by its CSDP. The JSE directives require the JSE members settlement accounts to be zeroed on a daily basis..86 The flow of funds described above applies to both local and foreign controlled client purchases..87 The net amount due by, or due to, the JSE member in respect of unsettled controlled client and proprietary transactions at any point in time is reflected on the JSE broker Netting Account (BDA Control A/C 12013). The balance on this account at any point in time therefore represents, at the most, five days unsettled controlled account transactions..88 On settlement day, the net amount of securities bought or sold by the JSE member on a proprietary basis and on behalf of its controlled clients, for each counter, is transferred to or from the JSE member s custody account by its CSDP. 12

17 Settlement of non-controlled client transactions.89 The settlement of non-controlled client transactions effectively bypasses the JSE member, as these transactions are settled directly between the CSDPs acting on behalf of those clients. The process of replacing the JSE member s obligation to settle a non-controlled client s transaction with the obligation of that client s CSDP is known as substitution..90 The net amount, which represents the amount to be settled amongst the CSDPs in respect of a JSE member s non-controlled client transactions, is reflected on the Non-Controlled Substitution Account (BDA control A/C 12005). The balance on this account at any point in time therefore represents five days unsettled non-controlled client transactions..91 If a non-controlled client s CSDP is unable to commit to settling a transaction by 10h00 on T + 4, the JSE member must assume responsibility for settling the transaction. This process is known as reverse substitution. Should this occur, the JSE member assumes the position as a principal and the client forfeits all rights to the transaction but remains responsible for any losses, costs and charges incurred by the JSE member in assuming the position. BDA automatically processes entries transferring the transaction from the non-controlled client s account to a Reverse Substitution Stock Account and transferring the opposite amount from the Non-Controlled Substitution Account to the JSE broker Netting Account. Margining requirements.92 A JSE member may be required to provide a margin to the JSE in respect of unsettled transactions in dematerialised securities. The margin is payable by the JSE member on T+4 in respect of the following: Non-controlled client transactions If by the end of the third business day after the trade date (T+3) the CSDP of the non-controlled client fails to commit to settle the transaction on behalf of the client. Controlled client transactions If by the end of the third business day after the trade date (T+3), the controlled client: - has insufficient uncertificated securities or funds in custody for the transaction to settle, and - has not entered into an uncertificated securities borrowing arrangement to facilitate settlement, and - has not concluded any other transaction (due to settle on or before the abovementioned settlement date) that will provide either sufficient uncertificated securities or funds to enable the transaction to settle. JSE member s own account sales If by the end of the third business day after the trade date (T+3), the JSE member - has insufficient uncertificated securities in custody for the transaction to settle, and - has not entered into an uncertificated securities borrowing arrangement to facilitate settlement, and has not concluded a purchase transaction (due to settle on or before the abovementioned settlement date) that will provide sufficient uncertificated securities to enable the transaction to settle. - has not concluded a purchase transaction (due to settle on or before the abovementioned settlement date) that will provide sufficient uncertificated securities to enable the transaction to settle. 13

18 JSE members own account purchases If by the end of the third business day after the trade date (T+3) the JSE member has not concluded a sale transaction due to settle on the settlement day of the purchase, which will provide sufficient funds for the purchase to settle on the settlement day..93 To the extent that the margin payable relates to transactions on a client s or a counterparty s account, the JSE member shall be entitled to recover such margin. Failure by a JSE member to pay a margin in contravention of the rules and directives may be deemed to constitute an act of default in terms of JSE Rule Benefits of STRATE.94 The benefits of STRATE include the following: The risks created by long settlement delays have been eliminated. To the extent that scrip has been dematerialised, the risks associated with tainted scrip have been eliminated. The time-consuming process of physically delivering share certificates has been replaced. Instead, simultaneous, final and irrevocable settlement takes place on the stipulated settlement date. The South African equities market has been brought in line with international expectations for settlement, and will consequently become more attractive to foreign investors who have become accustomed to the security offered by CSDs worldwide. Due to the dematerialisation of scrip, settlements now occur electronically. The risk of physical scrip being lost during the delivery process has been substantially removed. Access to physical scrip is reduced. Securities held in custody by JSE members in dematerialised form are all held in one location with the CSDP, as opposed to certificated securities that could be in any number of locations at a particular point in time. Control over scrip held by the JSE member is thus improved, although greater reliance is now placed on a third party, the CSDP. STRATE facilitates the reduction of settlement risk and the guarantee of T+5 trade settlement by the JSE. Effects of STRATE on JSE members.95 The implementation of STRATE has had a fundamental effect on the stock broking industry, and consequently on auditors of JSE members..96 The most visible effects of STRATE are: to eliminate paper share certificates and replace them with electronic records maintained by CSDPs and by nominee register holders, including JSE members, on behalf of shareholders, and to introduce guaranteed, contractual, T+5 rolling settlement (on a simultaneous and irrevocable delivery versus payment basis), in place of weekly settlement that occurred in the pre- STRATE era. Settlements thus take place daily. Central Securities Depositary Participants.97 The CSDPs have to meet prescribed entry standards regarding minimum capital requirements, operational capabilities and clearing arrangements before they are approved as CSDPs by STRATE. These entry requirements are detailed in the CASA as well as in the CSD Rules..98 The major role played by the CSDP is that of custodian of uncertificated securities balances, and clearing and settlement agent interfacing with STRATE..99 CSDPs interact on a daily basis with STRATE and the Payments Clearing Houses, and indirectly with other CSDPs. 14

19 Custody accounts and nominee registers.100 A custody account is an uncertificated securities account maintained by a JSE member with a CSDP, which reflects the uncertificated securities balances of controlled accounts of the broking JSE member and through which settlement of transactions is effected. The custody account at the CSDP is in the name of the JSE member s nominee company so as to separate clients securities from the assets of the JSE member..101 A JSE member s nominee register is effectively the record of clients uncertificated securities balances in the JSE member s BDA records, which in aggregate equals the balance in the JSE member s custody account at its CSDP..102 In terms of Rule , all nominee registers must be balanced with the CSDP on a daily basis, and a certificate must be submitted to the JSE monthly to confirm that this has been done, or the reasons for the out of balance position. This process is facilitated by the Review the Daily CSDP Reconciliation (PCSDRC) report, which lists mismatches between the JSE member s records and those of the CSDP on an exception basis..103 The most common reasons for the JSE member s records being out of balance with the CSDP and additional guidance on the audit of the daily CSDP reconciliation report are set out in Appendix E. Custody and Settlement.104 A JSE member may only hold securities or funds on behalf of clients or maintain a nominee register on behalf of controlled clients if it has been admitted as a Custody and Settlement member (CSM). A JSE member that operates controlled client accounts but has not been admitted as a CSM must appoint a CSM as its CSA to perform its custodial functions..105 In addition to the JSE membership requirements applicable to broking members, CSMs are also required to comply with the criteria set out in Directive FK with regard to their systems of internal control and their financial resources, so as to ensure continuity of business and the total protection of client assets..106 In those instances where a JSE member outsources its custody and settlement functions to a CSA, the principle is that the key controls relating to the safeguarding of client assets should be exercised by the CSA. Directive FL therefore sets out the respective responsibilities of the CSA and the JSE member in relation to the operation and maintenance of client accounts..107 In terms of this outsourcing arrangement, the JSE member continues to interact with its controlled clients but, in the main, it has view only access to those client accounts on BDA. It can obviously book trades in securities to client accounts, and it can also process receipts of funds from clients. Clients personal particulars are also initially loaded by the JSE member when a new account is opened, and any changes to those particulars are also initiated by the JSE member. However, all other transactions on controlled client accounts are effected by the CSA, and only the CSA has update access to those functions on BDA. Access by staff members of both the JSE member and the CSA to the various BDA functions is controlled by the CSA. The CSA is also required to verify the loading of all new client accounts as well as any amendments to the key client particulars against appropriate supporting documentation obtained by the broking JSE member from the client..108 Certain JSE members act solely as CSAs on behalf of broking members. Therefore, the risks within these firms relate to the custodial functions that they perform rather than to trading activities. In this regard, it should be borne in mind that these CSAs may also have their own custody clients that may trade as non-controlled clients through other JSE members. In these instances, the CSA is not only acting as an agent on behalf of other JSE members but it will also have direct responsibilities in relation to the JSE s custody rules and the relevant sections of the various statutes that affect the activities of the JSE members, including the SECA and the FICA. The relevant audit procedures and reporting requirements in respect of a JSE member s own clients will obviously also apply to a CSA with its own custody clients. 15

20 Impact on liquidity and capital requirements.109 STRATE has, in many cases, affected the liquidity and capital requirements of JSE members, due to the following: JSE members are required to settle transactions on behalf of their clients on settlement date if the clients fail to meet their settlement obligations. JSE members need to place margin balances with the JSE in certain circumstances, which will have cash flow implications. The capital adequacy requirements that JSE members are required to adhere to have, under certain circumstances, increased materially in the STRATE environment. There is a possibility that the JSE will not allow the JSE member to continue trading should any electronic settlement or margin call not be timeously completed..110 However, STRATE has probably had a positive impact overall on JSE members liquidity, as settlement on a DVP basis avoids JSE members having to pay for securities received through the settlement system and possibly only receiving the funds from the client at a later date, particularly in respect of the high value institutional client trades. Scrip counts.111 Uncertificated securities balances (ie. scrip that has been dematerialised) are agreed to the confirmation of holdings received from the JSE member s CSDP through the review of the CSDP reconciliation report (refer Appendix E for common reasons for the JSE member s records being out of balance with the CSDP)..112 Physical scrip held by the JSE member, whilst in the dematerialisation process or otherwise reflected in the JSE member s BDA records in a particular location, and Kruger-Rands remain subject to the same physical scrip count audit procedures that existed in the pre-strate environment. Segregation of client funds.113 The segregation of controlled client funds from those of the JSE member firm is an important principle established in the SECA and in the JSE rules and directives..114 Section 14 of the SECA requires all funds received from or on behalf of a client to be deposited by the JSE member into a separate trust account at a bank or into a separate trust account maintained by the exchange to which the JSE member belongs. The funds are either to be deposited into the relevant trust account at the date of receipt, or the JSE member is required to deposit an equivalent amount into the relevant trust account for same day value..115 The JSE rules then specifically provide that all funds received in respect of the operation of a controlled client account that are not paid over to the client shall be deposited with JSET. JSET is a company established and owned by the JSE to accept from broking JSE members all funds arising from the operation of controlled client accounts. These funds are in turn invested by the JSE in the money market..116 The above requirements are met in two ways. First, all JSE members are required to open client trust bank accounts to be used for the deposit of all funds received from their controlled clients. Second, BDA facilitates a daily transfer (sweep) between JSETs and the JSE members current, settlement and trust bank accounts. Based on the type of transaction and the relevant details recorded by the JSE member, BDA is able to identify whether a particular transaction affecting a client s credit cash balance should give rise to a sweep to or from JSET, and which of the JSE member s bank accounts are affected. BDA then aggregates each of the transactions affecting each bank account and a SWIFT message is sent to the JSE member s bank each morning instructing the bank to transfer the net amount in respect of each bank account to or from JSET. 16