Key Benefits:
PART V
Inquiries by and Other Powers of Registrar (ss 20-25)
(1) The Registrar may at any time call for any documents and any other information from a licensed fund or an officer of a licensed fund in relation to any matter connected with the business or transactions of that fund.
(2) Within one month, or such further period as the Registrar may allow, of receiving any inquiry in terms of subsection (1), the fund or officer to whom the inquiry is made shall reply in writing thereto and shall furnish any document called for.
[Ch2703s21]21. Investigation of affairs of a licensed fund
(1) If at any time the Registrar, from information in his possession, is of the opinion that it is necessary or desirable to do so, he may investigate the affairs or any part of the affairs of a licensed fund.
(2) In making an investigation in terms of this section, the Registrar may-
(a) require from the fund the production of any of its securities, books or documents; and
(b) examine on oath, which the Registrar may administer, any person in relation to the business of the fund.
(3) The Registrar shall have the same powers, rights and privileges as conferred upon a Commissioner by the Cap. 05:02 Commissions of Inquiry Act.
(4) The Registrar may, with the approval of the Minister, recover from the fund concerned all or part of the expenses necessarily incurred in connection with the investigation.
[Ch2703s22]22. Registrar may prohibit dealings with assets pending investigation 2 of 2007, s. 107
(1) The Registrar may, at any time before or during an investigation under section 21, by an order given under his hand-
(a) prohibit a fund from dealing in any manner whatsoever with all or a named portion of its assets;
(b) prohibit any dealing which would result in a reduction of the value of the fund,
for such time as he shall consider necessary to conclude his investigation or any part of it.
(2) Except with the prior consent in writing of the Registrar, the assets covered by an order made under subsection (1) shall not be sold, mortgaged, pledged or otherwise encumbered in any manner whatsoever by any person.
(3) Every director, manager, controller or principal officer who, after an order has been made by the Registrar under subsection (1), purports to sell, mortgage, pledge or otherwise encumber any asset named in such order or reduces the value of the fund shall be guilty of an offence and liable, at the order of the Registrar, to a fine equivalent to twice the value of any loss or expense thereby caused to the fund and to the Registrar.
(4) Any sale, mortgage, pledge or other encumbrance purported to be made of or to any asset, named in any order made under subsection (1) while such order remains in force, shall be void and of no legal effect.
(5) Any fine imposed on any person under subsection (3) shall be recoverable as a fine imposed by a court under the provisions of subsections (1) to (4) of section 303 of the Cap. 08:02 Criminal Procedure and Evidence Act, and an affidavit sworn by the Registrar shall be sufficient proof of the lawful imposition of the fine to enable the court to issue a warrant under those provisions.
(6) An order made by the Registrar under subsection (1) shall be published in the Gazette as soon as practicable.
[Ch2703s23]23. Registrar may require unlicensed fund to provide information
(1) The Registrar may, by notice in writing, require any person whom he has reason to suspect is carrying on the business of a fund which is not licensed to transmit to him, within such period as may be specified in the notice, a copy of the rules, if any, in terms of which the business concerned is being operated, together with a copy of the last annual accounts recorded by that person in relation to that business, and such other information in relation to the business carried on by that person as the Registrar may require.
(2) If any person who has been required in terms of subsection (1) to transmit any document or information fails to comply with the terms of the notice within the period specified therein, the Registrar may investigate the affairs or any part of the affairs of that person, and the provisions of section 21(2) to (4) shall, mutatis mutandis, apply in relation to such investigation.
(3) If it appears from inquiries in terms of subsection (1) or an investigation in terms of subsection (2) that the person concerned is carrying on the business of a fund which is not licensed, the Registrar-
(a) shall inform the person concerned accordingly by notice in writing sent by registered post; and
(b) may, if an application for licensing of the fund is not received within one month of the sending of such notice, direct that the business of the fund shall be wound-up and that the provisions of section 10 shall, mutatis mutandis, apply as though the fund were a licensed fund.
[Ch2703s24]24.–25 ...... 2 of 2007, s. 107
PART VI
General (ss 26-36)
[Ch2703s26]26. Right to obtain copies of or to inspect documents
(1) A licensed fund shall deliver to any member or pensioner on demand by that member or pensioner a copy of-
(a) the rules of the fund;
(b) the last audited income and expenditure accounts and balance sheet of the fund.
(2) A member or pensioner of a licensed fund shall be entitled at all reasonable times to inspect, without charge, at the registered office of the fund and to make extracts from-
(a) the rules of the fund;
(b) the last audited income and expenditure accounts and balance sheet of the fund;
(c) the last report, if any, by any actuary in terms of section 16;
(d) any scheme being carried out by the fund in accordance with the provisions of section 19.
[Ch2703s27]27. ...... 2 of 2007, s. 107
[Ch2703s28]28. Effect of certificate of Registrar on documents
Any document that purports to have been certified by the Registrar to be a document lodged with him in terms of this Act or to be a copy of such a document shall be prima facie presumed to be such a document or copy thereof and every copy which purports to be so certified shall be admissible in evidence as if it were the original document.
[Ch2703s29]29. Service of process
(1) Service of process in any legal proceedings against a licensed fund may be effected at the principal office of the fund in Botswana.
(2) If a licensed fund has no principal office in Botswana or it has ceased to exist, process in any legal proceedings against the licensed fund may be served at the office of the Registrar, and service upon the Registrar, in such case, shall be deemed to be service upon the fund.
[Ch2703s30]30. ...... 2 of 2007, s. 107
[Ch2703s31]31. Improper use of certain designations
No person shall, without the approval of the Registrar in writing, apply to any business carried on by him in Botswana a name which includes the words "pension fund", "provident fund" or "retirement annuity fund" or a name which indicates that he carries on the business of a fund unless the fund concerned is licensed.
[Ch2703s32]32. Offences relating to false statements or entries
(1) No person shall, in any statement, return, report, certificate, balance sheet or other document required by or for the purposes of this Act, wilfully make a statement which is false in any material particular knowing such statement to be false or not believing it to be true.
(2) No person shall, with intent to defraud or deceive-
(a) destroy, mutilate, alter or falsify any books, papers or securities or other record maintained for or by any electronic retrieval system belonging to a licensed fund; or
(b) make or be a party to the making of any false or fraudulent entry in any register, book of account or other document or other record maintained for or by any electronic retrieval system belonging to a licensed fund.
[Ch2703s33]33. Offences and penalties
(1) Any person who-
(a) contravenes the provisions of section 8, 10, 12, 13, 14 or 26; or
(b) fails to make a return or to transmit or deposit any scheme, report, account, statement or other document when required to do so in terms of this Act; or
(c) fails or refuses to furnish information, to produce documents or accounts, to lodge securities or to render other assistance to the Registrar when called upon to do so in terms of this Act; or
(d) fails to comply with any terms and conditions fixed or direction given by the Registrar in terms of this Act; or
(e) 2 of 2007, s. 107 contravenes the provisions of section 15, 16, 17 or 31; or
(f) contravenes the provisions of section 32,
shall be guilty of an offence.
(2) Any person who is guilty of an offence referred to in-
(a) subsection (1)(a) shall be liable to a fine not exceeding P1,000;
(b) subsection (1)(b) shall be liable to a fine not exceeding P2,000;
(c) subsection (1)(c) shall be liable to a fine not exceeding P3,000;
(d) subsection (1)(d) or (e) shall be liable to a fine not exceeding P5,000;
(e) subsection (1)(f) shall be liable to a fine not exceeding P10,000 or to imprisonment for a term not exceeding two years, or to both.
(3) If any person is convicted of an offence in terms of subsection (1) and thereafter continues to commit the offence, he shall be liable to a fine not exceeding P200 for each day that he continues to commit the offence or to imprisonment for a term not exceeding two years.
[Ch2703s34]34. Power to make regulations
(1) The Minister may make regulations prescribing anything which under this Act is to be prescribed or which, in his 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 in terms of subsection (1) may provide for-
(a) the form of any document referred to in this Act and the manner in which it shall be prepared, executed, registered, transmitted or delivered;
(b) the fees to be charged in respect of any act, matter or thing to be done by or in relation to the Registrar;
(c) the matters to be included in the document submitted with an application for the licensing of a fund and the conditions and procedures for such licensing;
(d) the appointment of an actuary or auditor and the matters to be included in any report by an actuary or auditor;
(e) the submission to the Registrar of financial statements, reports, statistics, accounts and other documents;
(f) the fees for the inspection of any documents;
(g) the deduction by an employer from the emoluments payable to his employee of contributions to be paid to a licensed fund;
(h) the maximum benefits that may be payable by a licensed fund or funds;
(i) the prohibition or control of the cession, pledging or hypothecation of benefits payable by a licensed fund and the protection of such benefits on assignment or from attachment or execution under a judgment or order of a court;
(j) the withholding of any benefits payable by a licensed fund where the member concerned-
(i) has borrowed and not fully repaid money from the fund or from his employer and has pledged his rights to benefits from the fund as security therefor; or
(ii) has been discharged because of dishonesty which has resulted in his employer suffering loss,
and the person to whom such benefits or portion thereof may be paid.
[Ch2703s35]35. ...... 2 of 2007, s. 107
[Ch2703s36]36. Saving in respect of existing funds
Notwithstanding anything to the contrary contained in this Act, where an authority by which a fund was established or which is responsible for the administration of a fund is required in terms of section 8(4) to amend the rules of the fund in so far as they affect the rights of members or former members, that authority may, in making such amendment, limit its application to persons who become members of the fund after the date on which the amendment was required and the Registrar shall not regard the rules as so amended as being inconsistent with the provisions of this Act by reason only of the fact that the amendment so made does not apply to persons who were members of the fund before the said date.
