Non-Bank Financial Regulatory Authority - Miscellaneous (Ss 89-105)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1354

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[Ch4608s89]89. Advisory bodies

The

Minister may, on the recommendation of the Regulatory Authority, by order,

establish advisory bodies to assist it in the performance of its functions

under this Act.

[Ch4608s90]90. Requirement to answer questions

A

person who, without reasonable excuse, fails to answer a question put to the

person by the Regulatory Authority or an investigator in the performance of

functions under a financial services law shall be liable to a civil penalty not

exceeding P10,000 to be imposed by the Regulatory Authority.

[Ch4608s91]91. Requirement to comply with directions

A

person who, without reasonable excuse, fails to comply with a direction, order

or requirement given to the person under a financial services law shall be

liable to a civil penalty not exceeding P20,000 to be imposed by the Regulatory

Authority.

[Ch4608s92]92. False and misleading statements to

Regulatory Authority

(1) A

person who-

(a) makes a statement to the Regulatory

Authority;

(b) gives information to the Regulatory

Authority;

(c) authorises another person to make a

statement to the Regulatory Authority, or give information to the Regulatory

Authority; or

(d) in connection with an application for a

licence, omits to state any thing, knowing that, because of the omission, the

statement, information or application is misleading in a material respect shall

be liable to a civil penalty not exceeding P30,000 to be imposed by the

Regulatory Authority.

[Ch4608s93]93. False statements

A

person who, for any purpose connected with a financial services law-

(a) knowingly makes a false statement; or

(b) produces or gives, or causes or knowingly

allows to be produced or given, a document that the person knows or ought

reasonably to have known to be false in a material particular,

shall be liable to a civil penalty not exceeding P30,000 to be imposed by

the Regulatory Authority.

[Ch4608s94]94. Self incrimination not a reasonable excuse

(1) A

person who is required under a financial services law to answer a question or

produce a document or thing is not excused from the requirement because compliance

may tend to incriminate him or her.

(2)

However, if the person objects on that ground to complying, the answer,

document or other thing given in compliance with the requirement is not

admissible against him or her in a prosecution for an offence (except a

prosecution for an offence of failing or refusing to comply with the

requirement, or giving false or misleading information in purported compliance

with the requirement).

[Ch4608s95]95. Offence of holding out as licensed, etc.

A

person who does any of the following-

(a) not being licensed as a non-bank financial

institution - describes or holds himself or herself out as so licensed;

(b) not being licensed as a non-bank financial

institution of a particular kind - describes or holds himself or herself out as

being a non-bank financial institution of that kind;

(c) permits another person to do anything

mentioned in paragraph (a) or (b),

commits an offence and on conviction is liable to a fine not exceeding

P10,000 or to imprisonment for a period not exceeding two years, or to both.

[Ch4608s96]96. Destruction of documents

A

person who destroys, falsifies, conceals or disposes of, or causes or permits

the destruction, falsification, concealment or disposal of, a document or thing

that the person knows or ought reasonably to have known is relevant to the

performance or exercise of the Regulatory Authority's functions or powers

commits an offence and on conviction is liable to a fine not exceeding P50,000

or to imprisonment for a period not exceeding five years, or to both.

[Ch4608s97]97. Hindering Regulatory Authority, etc.

A

person who, without lawful excuse, obstructs or hinders-

(a) the Regulatory Authority;

(b) a member or employee of the Regulatory

Authority; or

(c) an investigator or statutory manager,

in exercising powers or performing functions under a financial services

law commits an offence and on conviction is liable to a fine not exceeding

P50,000 or to imprisonment for a period not exceeding five years, or to both.

[Ch4608s98]98. Preventing compliance

A

person who knowingly hinders or prevents compliance with a direction, order or

requirement given under a financial services law commits an offence and on

conviction is liable to a fine not exceeding P50,000 or to imprisonment for a

period not exceeding five years, or to both.

[Ch4608s99]99. Extension of time

The

Regulatory Authority may, on application, extend any time for compliance with,

or a period prescribed by, a provision of a financial services law, and may do

so before or after the time for compliance or the period prescribed has passed.

[Ch4608s100]100. Evidence

A

statement in writing signed by the Chief Executive Officer-

(a) that a specified person was or was not, at

a specified time, licensed; or

(b) that a specified person was or was not, at

a specified time, an investigator,

is admissible in evidence of the facts and matters stated in the

certificate and, unless the contrary is established, is conclusive as to those

facts and matters.

[Ch4608s101]101. Conduct of directors, servants and agents

(1)

Where it is necessary to establish, for the purposes of a financial services

law, the state of mind of a body corporate in relation to particular conduct,

it is sufficient to show that-

(a) the conduct was engaged in by a director,

employee or agent of the body corporate within the scope of his or her actual

or apparent authority; and

(b) the director, employee or agent had the

state of mind.

(2) A

reference in subsection (1) to the state of mind of a person includes a

reference to-

(a) the knowledge, intention, opinion, belief

or purpose of the person; and

(b) the person's reasons for the intention,

opinion, belief or purpose.

(3) A

reference in this section to engaging in conduct includes a reference to

failing or refusing to engage in conduct.

[Ch4608s102]102. Liability of directors, etc.

Where

an offence against a provision of this Act is committed by a body corporate,

each director of the body corporate also commits the offence and on conviction

is liable to the same penalty unless the director establishes that he or she

took reasonable precautions and exercised due diligence to avoid the commission

of the offence.

[Ch4608s103]103. Offence committed partly within and partly

beyond Botswana

When

an act that, if wholly done within Botswana, would be an offence against a

financial services law, is done partly within and partly beyond Botswana, every

person who within Botswana does any part of such act may be tried and punished

under the financial services law in the same manner as if such act had been

done wholly within Botswana.

[Ch4608s104]104. Penalties for bodies corporate

Where

a body corporate is convicted of an offence against a financial services law,

the court may, if the court thinks fit, impose a pecuniary penalty not

exceeding an amount equal to 10 times the amount of the maximum pecuniary

penalty that could be imposed by the court on an individual convicted of the

same offence.

[Ch4608s105]105. Regulations

(1)

The Minister may by statutory instrument make regulations providing for any

matter which under this Act is to be provided for by regulations or is to be

prescribed or which, in the Minister's opinion, is necessary or convenient to

be prescribed for the better carrying out of the objects and purposes of this

Act or to give force or effect to its provisions or for its better administration.

(2)

Regulations made in terms of subsection (1) may provide for any of the

following-

(a) the form of any document referred to in

this Act and the way in which it is to be prepared, executed, registered,

transmitted or delivered;

(b) fees to be charged in respect of any act,

matter or thing to be done by or in relation to the Regulatory Authority;

(c) matters to be included in the document

submitted with an application for a licence and procedures for considering

those applications;

(d) the appointment of an actuary or auditor

for a non-bank financial institution;

(e) reports to the Regulatory Authority or to

the non-bank financial institution by an actuary or auditor;

(f) the submission to the Regulatory Authority

of financial statements, reports, statistics, accounts and other documents.