Prior to the introduction of the “collateral arrangement” exemption in the STT Act in January 2016, South African financial market participants were restricted to either providing cash collateral via an outright transfer in title, or providing non-cash collateral via a pledge. This was limiting for a collateral receiver, as pledged collateral could not be re-used by the collateral receiver (or the collateral giver). As the common law considered securities as personal rights, they could only be granted under a pledge when given as collateral.
Section 38 of the Financial Markets Act of 2012 introduced the concept of an out-and-out cession of securities. Out-and-out cession permits the transfer of ownership of securities to the collateral receiver, along with the consequent right of use. The tax treatment of the out-and-out cession of securities was not addressed at the time, and, under the STT Act, this meant that STT and Capital Gains Tax (CGT) would be applied against every out-and-out cession of non-cash collateral, making it economically unviable.
To counter this, the “collateral arrangement” exemption was introduced as an amendment to the STT Act in January 2016 to provide conditions upon which non-cash collateral could be transferred via an out-and-out cession and benefit from an exemption to STT and CGT. The market welcomed the introduction of this exemption and immediately adopted it.
Further changes have been made since 2016, including the extension of the 12-month period for the return of equivalent non-cash collateral to 24-months, broadening the definition of “identical share/security” to cater for specified corporate events, and including listed South African government bonds as allowable collateral.
The amendments that came into effect on 1 January 2023 require market participants to urgently revisit their collateral arrangements. Prior to 1 January 2023, non-cash collateral receivers could re-use collateral they received in any way they wanted to, subject to them being able to return equivalent securities to the collateral giver within a 24-month period. If this was done, and if the other requirements of the “collateral arrangement” were met, then no tax consequences would apply to either the initial transfer or return of the collateral securities.
The 2023 amendments to the “collateral arrangement” exemption introduce restrictions on the re-use of collateral securities that are received. The defined, allowable cases where the re-use of securities will continue to benefit from tax exemptions are now limited to:
- A further collateral arrangement
- A repurchase agreement entered into with the South African Reserve Bank (SARB) as contemplated in section 10(1)(j) of the South African Reserve Bank Act
- Complying with Regulation 28 of the Pension Funds Act, or
- Securing overnight cash placement to comply with the Basel III Supervisory Framework for measuring and controlling large exposures (LEX)
The above allowable cases are referred to as the “permitted purpose”.
If collateral securities are re-used by the collateral receiver for any purpose other than the permitted purpose, then the tax exemptions will not apply. Per the Binding General Ruling (BGR) issued by the South African Revenue Service (SARS) in November 2022, the collateral giver, through no fault of its own, may also be liable to pay tax on the initial, qualifying (exempt) transfer of the collateral securities if the collateral receiver uses such securities other than for a permitted purpose.
Since a collateral giver has no control over how the collateral receiver decides to re-use collateral securities, but may suffer adverse tax consequences as a result of these actions, there is an understandable reluctance to continue to provide non-cash collateral via an out- and-out cession without seeking indemnification from the collateral receiver.
Should such an indemnity not be forthcoming, the collateral giver may revert to providing collateral via a pledge. This will be limiting for the collateral receiver as a pledge does not permit any right of use – and it would be a regression for the market.
Out-and-out cessions of collateral were introduced and permitted with the intention of reducing “transaction costs and market pricing because of the ability to rehypothecate collateral and reduce tax costs and making South Africa more attractive as an investment destination” (Explanatory Memorandum on the Taxation Laws Amendment Bill, 2015).
Limited by the inability to rehypothecate pledged assets, the collateral receiver may insist on only receiving cash collateral, potentially increasing the cost for the collateral giver, and having a negative impact on liquidity on the broader market.