A number of laws will have to be amended to bring crypto assets under regulatory scrutiny, and exchanges will be required to enforce anti-money laundering and anti-terrorism laws just as banks and other financial services providers are currently required to do.
A working paper released last week by the Intergovernmental Fintech Working Group (IFWG) on crypto assets proposes changes to a number of laws to bring crypto assets under the law.
Some of these changes are already in the process of being implemented, while some will take a while longer, says the working paper.
- Crypto asset service providers (CASPs) will be deemed accountable institutions under the Financial Intelligence Centre Act (FICA), which means they will be held responsible for: customer identification and verification, conducting customer due diligence, keeping customer transaction records, monitoring suspicious behaviour, reporting cash transactions above R25 000 (or the applicable threshold at any given time) and movements in the control of property that might be linked to terrorism.
- The working group recommends that the SA Reserve Bank’s Financial Surveillance Department (FinSurv) supervises cross-border financial flows in respect of crypto assets and CASPs. This would require the minister of finance to amend Exchange Control Regulation to include crypto assets in the definition of ‘capital’ for the purposes of Exchange Control Regulations.
- FinSurv should explicitly allow individuals, through an amendment of the Exchange Control Regulations, to purchase crypto assets within their single discretionary allowance (SDA) and the foreign capital allowance (FCA) framework. Under such a scenario, crypto purchases would be limited to R11 million a year – R1 million under the SDA and R10 million under the FCA. This also appears to require banks – some of which have specifically prohibited forex transactions for crypto purchases – to allow individuals to send money abroad for the purchase of cryptos.
- Crypto asset trading platforms (CATPs) should be allowed to source crypto assets abroad for resale in the local market, subject to specified limits.
- As an interim measure, the working group recommends that crypto assets be declared a financial product under the Financial Advisory and Intermediary Services (Fais) Act. “This would require CASPs to become licenced intermediaries and provide for the rendering of advice by such entities. This allows for regulatory oversight and will assist in addressing the immediate exploitation of consumers by unscrupulous entities,” says the working paper.
In the medium term, the working group recommends that financial services involving crypto assets be included in the Financial Sector Regulation (FSR) Act, and that “crypto asset-related activities as performed by CASPs be licensed activities and subject to the Conduct of Financial Institutions (CoFI) Bill, as deemed appropriate”.
The FSR Act provides for the overarching legislation, and provides for recognising financial products, financial instruments and financial services that are subject to regulation and supervision, whilst the CoFI Bill focuses on fair customer treatment and specifies how a financial institution should conduct its business in performing regulated financial activities. The CoFI Bill will repeal existing market conduct sectoral laws and replace them with a single conduct framework.
Two other priorities identified by the working group are:
- Limiting the exposure of prudentially regulated financial institutions and financial market infrastructures to crypto assets to avoid creating financial stability risks. SA will take its lead from the Basel Committee on Banking Supervision, which is currently determining its position on cryptos.
- Implementing a monitoring programme for crypto assets.