Submission by the Competition
Commission on the Co-operative Banks Bill
(B13-2007)
1. Introduction
Section
21(1)(k) of the Competition Act 89 of 1998 (“Competition Act”) empowers the Competition Commission to review
legislation and public regulation that permits anti-competitive behavior. This
function also entails pro-actively commenting on draft parliamentary Bills with
the aim of preventing legislations enacted after the coming into operation of
the Competition Act from facilitating or advancing anti-competitive market
structures and/or behavior. It is on this basis that the Competition Commission
welcomes the opportunity to comment on the Co-operatives Banks Bill, 2007 (“the
Co-operatives Banks Bill”) published under the Portfolio Committee of Finance.
Furthermore, the Competition Commission would like to make an oral presentation
during the public hearings scheduled for the 28th and 29th
of August 2007.
The
Cooperative Banks Bill seeks to ensure the sound and safe management of
depositor money and to promote the growth and development of deposit taking
financial services co-operatives.
With the
seemingly less accessibility of the National Payment System being said to be a
barrier to entry in the banking industry, it is laudable that this Bill aims at
creating a development strategy and a regulatory environment conducive for the
promotion of the development and growth of co-operative banks.
It is
within the spirit of the objectives of the Competition Act that
competition-enhancing measures are taken to facilitate, amongst others, the
promotion and advancement of small businesses. In this regard, the Competition
Commission therefore welcomes the Bill as a positive step towards extending
affordable banking services to all South Africans, including the unbanked, by
promoting the entry and expansion of alternative providers of banking services.
This in turn will contribute to increase participation in our economy and hopefully
also increase competition in the banking industry to the betterment of social/consumer
welfare. However, as we pointed out in our comments on the previous version of
this Bill, the success of this legislation will depend on its flexibility and
the extent to which it will be effective in lowering the entry and operational
barriers that currently characterize the banking sector.
Our
comments below mainly concern the determinations of supervisors, consequent
amendments to the National Payment System Act, limitations on Primary
Co-operative Banks as well as the role of the Competition Commission in respect
to amalgamations and merger control.
2. Determinations of
supervisors
Chapter
VIII provides for the appointment of supervisors. This is a welcome step as it
allows for effective administration of the Act. However, it is important that
the supervisors apply clear and objective criteria in fulfilling this role.
This is particularly true in areas where a supervisor is permitted to exercise
some discretion. One function of the supervisor is to grant applications for
the registration of co-operative banks. In terms of section 8(2) of the Bill
“The supervisor may grant an application for registration subject to any
condition he or she may determine”. Although Chapter X provides for appeals
against decisions of the supervisors it is important that in any such
determination the supervisor apply objective criteria. Opaque conditions and
determinations can potentially hamper the efforts of entities to enter the
sector, particularly if it introduces uncertainty and unpredictability into the
process. We recommend that consideration should be given to establishing clearly
stated and objective criteria to guide the supervisor in granting applications
for registration of co-operative banks.
3.
Consequent amendments to the
National Payment System Act
In terms
of the relevant amendments to that National Payment System Act (that would
follow from the promulgation of the Co-operative Banks Act) we make the
following comment:
The
exclusion of any reference to primary cooperative banks in the amended National
Payment System Act implies
that primary cooperative banks would be precluded, either directly or by way of
sponsorship, from participating in clearing and settlement activities. It is not clear whether this would mean that
a primary cooperative bank would only be able to offer transaction services on
its own infrastructure. This may limit the scope of payment services that the
primary cooperative bank can offer to its members, and thus potentially its
ability to compete effectively. We suggest that greater clarity be provided on
primary cooperative banks’ rights and obligations in respect of payments
services requiring clearing and settlement in both the Cooperative Banks Bill
and in the proposed amendments to the National Payments System Act.
4. Limitations
on Primary Co-operative Banks
Section 14
of the Co-operative Banks Bill distinguishes between primary, secondary and
tertiary co-operative banks. As noted above, proposed amendments to the National
Payment System Act are silent with regards to primary co-operative banks’
requirements in terms of clearing and settlement. However, in terms of section
14(1)(b) of the Co-operative Banks Bill a primary co-operative bank may “open
savings accounts of its members in the name of each member, into which that
member may deposit or withdraw money and from which that member may instruct
the co-operative bank to transfer or pay money”. It is not clear how some of
these payment activities (which may involve clearing and settlement) would be
facilitated in the case of primary co-operative banks’. Is it intended that
primary co-operative banks be specifically limited in this regard? If a primary
co-operative bank wished to broaden the scope of its payment services would it
be facilitated through some process or would it have to convert to a secondary
or tertiary cooperative bank? We recommend that more clarity be provided in
this regard.
5. Amalgamation
and Merger Control
Chapter V
deals with the amalgamation, division, conversion, transfer, judicial
management and winding-up of co-operative banks. In terms of section 29(3) of
the Co-operative Banks Bill “The supervisor may not approve an amalgamation or
division of or transfer by a co-operative bank or issue a certificate of
registration in respect thereof without the written consent of the Minister to
that amalgamation, division or transfer”.
It is
important to note that to the extent that any amalgamation, conversion or
transfer may constitute a merger in terms of Chapter 3 of the Competition Act the
Competition Commission will scrutinize and make recommendations on the impact
that such amalgamation, division, or transfer may have on competition. However,
as the decision on the amalgamations, divisions or transfers of co-operatives
banks ultimately rests with the Minister of Finance, these matters may fall
under the concurrent jurisdiction of the Competition Commission, supervisor and
Minister of Finance. Therefore, it is recommended that the supervisor and the
Minister of Finance should have a working relationship with the Competition Commission
in order to liaise on such matters, as also provided for in terms of section
53(1) of the Co-operative Banks Bill.
6. Conclusion
Overall,
the Competition Commission supports the objectives of the Co-operatives Banks Bill.
Nonetheless, the Competition Commission recommends that consideration should be
given to establishing clearly stated and objective criteria to guide the
supervisor in granting applications for registration of co-operative banks; greater
clarity be provided on primary cooperative banks’ rights and obligations in
respect of payments services requiring clearing and settlement in both the
Cooperative Banks Bill and in the proposed amendments to the National Payments
System Act; and that the Competition Commission would be scrutinizing
amalgamations, divisions or transfers of co-operatives banks to the extent that
they fall within Chapter 3 of the Competition Act. Lastly, it should be noted
that an effective working relationship between the Competition Commission,
supervisor and the Minister of Finance is crucial in as far as regulating
amalgamations and/or merger control of cooperative banks is concerned.