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VOLUME: X
NON-BANK FINANCIAL REGULATORY AUTHORITY
CHAPTER: 46:08


Part:XI Transitional and consequential provisions (ss 106-107)

[Ch4608s106]106.   Existing licences and registrations preserved

            (1) A person who was licensed or registered in terms of a financial services law immediately before Part III commences shall be taken to be licensed in terms of this Act, on the same terms, the licence terminating-

     (a)     at the end of 12 months after Part III commences; or

     (b)     if, but for this Act, the licence would terminate on an earlier day, on that earlier day.

            (2) Subsection (1) does not apply in respect of provisional registration as a pension or provident fund under the Pension and Provident Funds Act.

            (3) If-

     (a)     a person resident in Botswana is lawfully carrying on an activity immediately before Part III commences;

     (b)     the person was not, at that time, required to be licensed or registered under a financial services law other than this Act in relation to carrying on the activity; and

     (c)     the person applies for a licence within 6 months after Part III commences;

section 42 does not prevent the person from carrying on the activity until the application is finally determined.

[Ch4608s107]107.   Repeals and amendments

     In consequence of the provisions of this Act, the Acts specified in the Schedules hereto are amended as set out in those Schedules.

FIRST SCHEDULE

(section 107)

(Amendments to Bank of Botswana Act (Cap. 55:01))

     1. The Bank of Botswana Act Cap. 55:01 is amended in section 45 thereof by substituting for subsection (1) of that section, the following new subsections-

     "(1) This Part shall apply to a company which has applied for or been issued with a tax certificate (hereinafter referred to as "the tax certificate") in accordance with section 138(2) of the Income Tax Act.

     (1A) This Part does not apply to a non-bank financial institution licensed in terms of the Non-Bank Financial Institutions Regulatory Authority Act, 2006, and does not affect any powers granted to the Bank in relation to banks and other companies.".

SECOND SCHEDULE

(section 107)

(Amendments to Botswana Stock Exchange Act (Cap. 56:08))

     1. Section 2 of the Botswana Stock Exchange Act (in this Schedule called "the Act") is amended-

     (a)      by deleting the definition of "inspector"; and

     (b)      by substituting for the definition of "Registrar" the following new definition-

              "Registrar" means the Regulatory Authority established under the Non-Bank Financial Institutions Regulatory Authority Act, 2006;".

     2. (1) The Act is amended by omitting "Minister" and "Minister's" (wherever occurring, except in sections 5 and 12) and substituting "Regulatory Authority" and "Regulatory Authority's" respectively.

     (2) The Act is amended by omitting all references to registration as a stock-broker (however expressed) and substituting references to licensing as a stock-broker (expressed in a similar way).

     3. Section 5 of the Act is amended-

     (a)      by substituting for paragraph (a) of subsection (1) thereof, the following-

            "(a)     three members appointed by the Minister on the recommendation of the Regulatory Authority; and"; and

     (b)      by substituting for the words "The Minister may appoint any person, other than the Registrar, to the Committee as an alternate to an appointed Committee member" which appear in subsection (2) thereof, the following, "The Minister may, on the recommendation of the Regulatory Authority, appoint any person, other than a member of the Non-Bank Financial Institutions Regulatory Authority, to the Committee as an alternate to an appointed Committee member".

     4. Section11of the Act is amended by substituting for subsection (1) thereof, the following new subsections-

              "11. Regulatory Authority may direct Committee and Committee member to vacate office, etc

              (1) The Regulatory Authority may, by written notice to the Committee and the Committee member, direct a Committee member to vacate his or her office, but only if the Regulatory Authority is satisfied that the Committee member-

                      (a)      is not fit and proper to be a Committee member; or

                      (b)      is mentally or physically incapable of performing the duties of the office efficiently.

              (1A) Part IX of the Non-Bank Financial Institutions Regulatory Authority Act, 2006 applies in relation to a decision of the Regulatory Authority under this section as if it were a decision under section 53(2) (c) of that Act.".

     5. Section12 of the Act is amended by substituting for paragraph (a) of subsection (1) the following-

     "(a)     the Minister shall, in the case of an appointed Committee member, on the recommendation of the Regulatory Authority, appoint a person; or".

     6. Section 15 of the Act is amended by substituting for the words "with the terms of this Act" appearing in subsection (1) (f) thereof, the words "with the terms of this Act or the Non-Bank Financial Institutions Regulatory Authority Act, 2006".

     7. Part III of the Act is repealed.

     8. Section 32 of the Act is amended by repealing subsection (1).

     9. Section 33 of the Act is amended by repealing subsections (2) and (3).

     10. Part XI of the Act is amended by substituting for that Part, the following-

"PART XI
Powers to suspend the Exchange

              65.   Minister may suspend operation of exchange

              The Minister may-

            (a)      upon a request made by the Committee, or contained in a resolution passed by a majority of registered stockbrokers holding not less than three-quarters of the total number of proprietary rights issued by the Exchange; or

            (b)      of its own motion, where it considers that special circumstances requiring the suspension of the operation of the Exchange exist and after consultation with the Committee;

              suspend the operation of the Exchange for a period not exceeding one month at any one time.".

THIRD SCHEDULE

(section 107)

(Amendments to Collective Investment Undertakings Act (Cap. 56:09))

     1. The long title of the Collective Investment Undertakings Act (in this Schedule called "the Act") is repealed and the following substituted-

              "An Act to provide for the supervision and regulation of collective investment undertakings to enhance protection for investors; and to provide for matters incidental and connected to the foregoing."

     2. Section 2 of the Act is amended by substituting for the definition of "Regulatory Authority" the following new definition-

              "Regulatory Authority" means the Non-Bank Financial Institutions Regulatory Authority established under the Non-Bank Financial Institutions Regulatory Authority Act, 2006;".

     3. Part II of the Act is repealed.

     4. Sections 9, 12, 13 and 14 of the Act are repealed.

     5. Section 22 of the Act is amended by repealing subsections (1) and (4).

     6. Part XI of the Act is repealed.

     7. Sections 80, 81, 82, 83 and 84 of the Act are repealed.

     8. Section 85 of the Act is amended by repealing subsection (4).

FOURTH SCHEDULE

(section 107)

(Amendments to Insurance Industry Act (Cap 46:01))

     1. Section 2 of the Insurance Industry Act (in this Schedule called "the Act") is amended by deleting the definition of "Registrar" and substituting thereof-

              "Registrar" means the Regulatory Authority established under the Non-Bank Financial Institutions Regulatory Authority Act, 2006;".

     2. The Act is amended by substituting for all references to registration references to licensing.

     3. The Act is amended by repealing Part II.

     4.The Act is amended by repealing sections 15, 19, 20, 21, 22 and 24.

     5. The Act is amended by repealing subsections (1) and (2) of section 46 thereof.

     6.The Act is amended by repealing sections 50, 60, 67, 68, 112, 118, 119, 120, 121 and 123.

     7. The Act is amended in section 128-

     (a)      by substituting for subsections (1), (2), (3), (4) and (5) the following subsections-

              "Contraventions punishable by regulatory authority

                      (1) The directors, manager, controller and principal officer of an insurer or a broker acting in contravention of the provisions of section 8, 17 or 25 shall each be liable to a civil penalty not exceeding P10,000 to be imposed by the Regulatory Authority.

                      (2) Any person carrying on any insurance business without first being registered as an insurer shall be liable to a civil penalty not exceeding P10,000 to be imposed by the Regulatory Authority, and, Contraventions punishable by regulatory authority where the person contravening this section is a company or partnership, every director, manager, controller and principal officer of the company or every partner, manager, controller or principal officer of the partnership shall each be personally liable as if he was personally responsible for the contravention.

                      (3) Any person carrying on the business of an insurance agent, broker or agent for a broker without first being registered as an insurance agent, broker or agent for a broker, as the case may be, shall be liable to a civil penalty not exceeding P3,600 to be imposed by the Regulatory Authority, and, where the person contravening this subsection is a company or a partnership, every director, manager, controller or principal officer of the company or every partner, manager or principal officer of the partnership shall each be personally liable as if he was personally responsible for the contravention.

                      (4) An insurance agent or agent for a broker acting in contravention of the provisions of section 47 shall, in addition to any offence for which he may be liable under any other law be liable to a civil penalty not exceeding P3,600 to be imposed by the Regulatory Authority.

                      (5) Any insurer or broker who knowingly employs any person deemed unsuitable by virtue of sections 17 and 51 respectively shall be liable to a civil penalty not exceeding P18,000 to be imposed by the Regulatory Authority.".

     (b)      in subsections (7) and (8) by substituting for the word "fine" the words "civil penalty" wherever it appears.

     8. The Act is amended by substituting for section130 the following section-

              "130. (1) Every person who acts in contravention of any of the provisions of this Act shall, where no punishment has been stipulated by any other section of this Act for that contravention, be liable to a civil penalty not exceeding P3,600 to be imposed by the Regulatory Authority.

                      (2) Where a contravention to which this section applies is committed by a body of persons, every director, manager, controller and principal officer of the company and every partner, manager or principal officer of the partnership shall be held personally responsible for the contravention-

                      Provided that if the individual concerned can prove to the satisfaction of the Regulatory Authority that he was not aware of the act or default which contravened the provisions of this Act and could not with reasonable diligence have become aware of it, he shall not be deemed liable under this section.

                      (3) The provisions of subsection (8) of section 128 shall apply to any civil penalty imposed under this section.".

FIFTH SCHEDULE

(section 107)

(Amendments to International Insurance Act, 2005 (No. 5))

     1. (1) Section 2 of the International Insurance Act, 2005 (in this Schedule called "the Act") is amended by substituting for the definition of "regulatory authority" the following new definition-

              "Regulatory Authority" means the Regulatory Authority established by the Non-Bank Financial Institutions Regulatory Authority Act, 2006;".

     2. The Act is amended by omitting all references to authorisation for carrying on an international insurance business (however expressed) and substituting references to licensing to carry on an international insurance business (expressed in a similar way).

     3. The Act is amended by repealing sections 3, 5 and 6.

     4. The Act is amended by repealing subsection 7(1).

     5. The Act is amended by repealing section 8.

     6. TheAct is amended by repealing sections10(4), (5), (6) and (7) and12(3), (4) and (5).

     7. The Act is amended by inserting after section 16, the following new section-

              "16A. Application of certain sections

                      Sections 14, 15 and 16 apply in addition to the other financial services laws.".

     8. The Act is amended by substituting for section 30 thereof, the following-

              "30.Contraventions punishable by regulatory authority

                      (1) Notwithstanding the provisions of section 29 (1), a person who contravenes any of the provisions of this Act shall be liable to a civil penalty not exceeding P5,000 to be imposed by the Regulatory Authority.

                      (2) Where a contravention to which this section applies is committed by a body corporate, every controller and officer of such body corporate shall be held liable for such contravention unless he or she proves, to the satisfaction of the Regulatory Authority, that he or she was not aware of the act or default which contravened the provisions of this Act and could not, with reasonable diligence, have become aware of it.

                      (3) Without prejudice to any other action taken or which can be taken by the Regulatory Authority under this Act, any civil penalty imposed by the Regulatory Authority under the provisions of this section shall be recoverable as a fine imposed by a court under the provisions of subsections (1) to (4) of section 303 of the Criminal Procedure and Evidence Act, and an affidavit sworn by an officer of the Regulatory Authority shall be sufficient proof of the lawful imposition of the fine to enable the court to issue a warrant under those provisions, except that no warrant shall be issued until any appeal has been heard and disposed of or until the time within which an appeal may be made thereunder has expired.".

SIXTH SCHEDULE

(section 107)

(Amendments to Pension and Provident Funds Act (Cap. 27:03))

     1. Section 2 of the Pension and Provident Funds Act (in this Schedule called "the Act") is amended-

     (a)      by deleting the definition of "provisionally registered"; and

     (b)      by substituting for the definition of "Registrar" the following new definition-

              "Registrar" means the Regulatory Authority established under the Non-Bank Financial Institutions Regulatory Authority Act, 2006;".

     2. The Act is amended by omitting all references to registration of a fund (however expressed) and substituting references to licensing of a fund (expressed in a similar way).

     3. The Act is amended by omitting all references to provisional registration of a fund (however expressed).

     4. The Act is amended by repealing sections 3(1) to (10) (inclusive), 4, 11, 24, 25, 27, 30 and 35.