CHAPTER 42:14
BOTSWANA TRADE COMMISSION
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
PART II
Establishment of Commission
3. Establishment of Commission
4. General powers and functions of Commission
5. Seal of Commission
PART III
Establishment and membership of Board
6. Establishment of Board
7. Functions of Board
8. Tenure of office of member
9. Disqualification, removal and resignation of member of Board
10. Vacation of office by member
11. Filling of vacancy
PART IV
Meetings and proceedings of Board
12. Election of Vice Chairperson
13. Meetings of Board
14. Committees of Board
15. Co-option of other personnel
16. Disclosure of interest
17. Confidentiality
18. Remuneration and allowances
PART V
Staff of Commission
19. Chief Executive Officer
20. Duties of Chief Executive Officer
21. Secretary
22. Appointment of staff of Commission
23. Training of staff by Commission
24. Exemption from personal liability
PART VI
Financial Provisions
25. Funds of Commission
26. Provision of information
27. Financial year
28. Accounts
29. Audit
30. Annual Report
PART VII
Specific functions of Commission
31. Manner of investigation
32. Power to delegate
33. Powers of Chief Executive Officer
34. Power of search
34A. Protection of confidential information
PART VIII
Miscellaneous Provisions
35. Identity card
36. False complaints
36A. Cooperation with other regulatory authorities
37. Regulations
Act 20, 2013,
S.I. 70, 2014,
S.I. 132, 2020,
Act 17, 2023,
S.I. 45, 2024.
An Act to establish the Botswana Trade Commission; to provide for an efficient and effective system for the administration and facilitation of international trade; to regulate the import and export of goods; to provide for the implementation of the SACU Agreement; and to provide for matters incidental thereto.
[17 of 2023, s. 2.]
[Date of Commencement: Parts I to VI – 1st June 2014, Parts VII and VIII – 2nd November 2020]
PART I
Preliminary (ss 1-2)
This Act may be cited as the Botswana Trade Commission Act.
In this Act, unless the context otherwise requires—
“Board” means the Board of the Commission established under section 6;
“Commission” means the Botswana Trade Commission established under section 3;
“Common Customs Area” means the combined areas of Botswana, Eswatini, Lesotho, Namibia and South Africa established under the Southern African Customs Union (SACU) Agreement of 2002;
[17 of 2023, s. 3(a).]
“Council” has the meaning assigned to it under the SACU Agreement;
[17 of 2023, s. 3(b).]
“Chief Executive Officer” means the Chief Executive Officer of the Commission, appointed under section 19;
“dumping” means the export or proposed export of goods—
(a) at an export price lower than the price at which similar goods are being sold in the ordinary course of trade in the exporting country for consumption in that country;
(b) at an export price lower than the highest comparable price at which similar goods are being exported in the ordinary course of trade from the exporting country to any third country; or
(c) at an export price lower than the cost of production or the estimated cost of production of the goods concerned in the country of origin and any other costs and profit which the Minister deems reasonable;
“goods” includes all wares, articles, merchandise, animals, currency, crops and plants;
“import surge” means a situation in which the quantity or value of goods imported into the SACU Member State suddenly exceeds the normal level;
[17 of 2023, s. 3(b).]
“member” means a member of the Board or of a committee of the Board;
“national body” means a body or institution established or designated as such in terms of Article 14 of the SACU Agreement by a SACU Member State;
[17 of 2023, s. 3(b).]
“regulatory authority” means an entity established under any Act for the purpose of regulating an industry or a sector of an industry;
“Revenue Service” has the meaning assigned to it under the Botswana Unified Revenue Service Act;
[17 of 2023, s. 3(b).]
“SACU” means the Southern African Customs Union established by Article 3 of the SACU Agreement;
[17 of 2023, s. 3(a).]
“SACU Agreement” means the Southern African Customs Union Agreement for regional integration on the exportation and importation of goods, including customs controls, within the SACU Member State concluded in 2002, to which Botswana is a party;
[17 of 2023, s. 3(b).]
“SACU Member State” means a member of the Southern African Customs Union;
[17 of 2023, s. 3(b).]
“SACU Tariff Board” means the SACU Tariff Board established by Article 7 of the SACU Agreement;
[17 of 2023, s. 3(a).]
“Secretary” means the Secretary of the Commission, appointed under section 21;
“senior staff” means any employee of the Commission who holds a position which is designated as such by the Board; and
“subsidised export” means the export of goods to a Common Customs Area from any country in respect of which the government of, or any public authority within, that country—
(a) has provided financial aid or other assistance with the production, manufacture, transportation or export of the goods; or
(b) has foregone any revenue that would otherwise be due to that government or public authority.
[17 of 2023, s. 3(b).]
PART II
Establishment of Commission (ss 3-5)
3. Establishment of Commission
(1) There is hereby established a body to be known as the Botswana Trade Commission.
(2) The Commission shall be a body corporate with a common seal, capable of suing and being sued in its own name and, subject to the provisions of this Act, of doing or performing all such acts or things as bodies corporate may, by law, do or perform.
4. General powers and functions of Commission
(1) Subject to the control of the Board and the provisions of this Act, the Commission shall—
(a) investigate and determine the impact of tariffs in Botswana and provide written recommendations regarding any tariff change to the Board;
(b) investigate allegations of dumping, subsidised exports and import surges within the Common Customs Area that affect Botswana;
(c) formulate guidelines for the application of trade remedies and tariff amendments within Botswana;
(d) regulate the import of goods into Botswana;
(e) regulate the export of goods from Botswana;
(f) assess and determine eligibility for infant industry protection from goods coming from or into the Common Customs Area;
[17 of 2023, s. 4(a).]
(g) receive requests from SACU Tariff Board to evaluate recommendations made to the SACU Tariff Board from the SACU Member States;
[17 of 2023, s. 4(b).]
(h) investigate requests received from the SACU Tariff Board in relation to allegations of dumping, subsidised exports, import surges and tariff amendments made to the SACU Tariff Board by the SACU Member States;
[17 of 2023, s. 4(c).]
(i) investigate, on its own initiative, trade and industry related matters or such matters as may be referred to the Commission;
[17 of 2023, s. 4(d).]
(j) issue any rebate permit or certificate in terms of the Customs Act;
[17 of 2023, s. 4(e).]
(k) issue any certificate or permit in terms of duty drawback provisions of the Customs Act;
[17 of 2023, s. 4(e).]
(l) request a national body to evaluate applications received by the Chief Executive Officer in accordance with section 31, and to investigate and compile information available within its jurisdiction concerning such applications;
[17 of 2023, s. 4(e).]
(m) make recommendations on tariff changes to the SACU Tariff Board or national body;
[17 of 2023, s. 4(e).]
(n) establish an efficient and effective system for the administration, monitoring and review of trade defence measures in trade agreements to which Botswana is a party;
[17 of 2023, s. 4(e).]
(o) establish an efficient and effective system for the administration, monitoring and review of international trade within Botswana; and
[17 of 2023, s. 4(e).]
(p) receive requests from a national body to evaluate applications for tariff amendment and trade remedies.
[17 of 2023, s. 4(e).]
(2) The Minister may, on the recommendation of the Board, by Order published in the Gazette, delegate any function of the Commission in respect of any matter relating to an industry or a sector of the industry that the Commission or Ministry is responsible for to-
(a) any regulatory authority; or
(b) any Ministry,
subject to such conditions as the Minister may determine.
(3) The Commission may, in writing, direct a person who—
(a) imports, exports, trades or manufactures any goods; or
(b) in the course of business or trade, handles or has control of the goods under paragraph (a),
to provide the Commission, within a specified time, with information relating to the import, export, manufacture, supply or storage of the goods in question.
[17 of 2023, s. 4(f).]
(4) Any person who contravenes the provisions of this section, commits an offence and is liable to a fine not exceeding P50 000, or in the case of a corporation, a fine not exceeding 10 percent of its annual turnover.
[17 of 2023, s. 4(f).]
(1) The seal of the Commission shall be such device as may be determined by the Commission and shall be kept by the Secretary.
(2) The seal of the Commission shall be authenticated by the signatures of the Chief Executive Officer and the Secretary.
(3) In the absence of the Chief Executive Officer, the person performing the functions of the Chief Executive Officer may authenticate the seal in his or her place and, in the absence of the Secretary, the person performing the functions of the Secretary may authenticate in his or her place.
(4) The Chief Executive Officer may, in writing, delegate to another employee his or her power to authenticate the seal.
(5) The Secretary may, in writing and with approval of the Chief Executive Officer, delegate to another officer his or her power to authenticate the seal.
(6) A document issued by the Commission and sealed with the seal of the Commission which seal is authenticated in the manner provided by this section shall be received and taken to be a true instrument without further proof unless the contrary is shown.
PART III
Establishment and membership of Board (ss 6-11)
(1) There shall be a Board of the Commission which shall perform such functions as may be conferred on it under this Act.
(2) The Board shall consist of—
(a) the Chief Executive Officer who shall be an ex-officio member;
(b) a representative of the private sector appointed by the Minister who shall be the Chairperson of the Board;
(c) a representative, at Director level, from the following entities—
(i) department responsible for international trade at Ministry responsible for trade and industry,
(ii) department responsible for agri-business at Ministry responsible for entrepreneurship,
(iii) department responsible for tax policy at Ministry responsible for finance, and
(iv) department responsible for customs at Botswana Unified Revenue Services;
[17 of 2023, s. 5.]
(d) three members appointed by the Minister with such expert knowledge in international trade, economics, law, accounting, agriculture, exporting and importing trade, freight forwarding trade, finance, insurance, labour or public affairs.
(3) The Minister shall cause to be published by notice in the Gazette the appointments under subsection (2)(b) and (2)(d).
The Board shall—
(a) be the governing body of the Commission and shall be responsible for direction of the affairs of the Commission;
(b) review applications specified under Part VII of this Act and initiate investigations of such applications;
(c) review recommendations made by the Commission on investigations relating to tariff amendments, allegation of dumping, subsidised exports and imports surges;
(d) submit decisions for matters reviewed under paragraph (c) to the SACU Tariff Board;
(e) control exports from Botswana and imports into Botswana;
(f) advise the Minister on remedial measures including provisional measures where necessary, that can be taken to address trade actions under scrutiny;
(g) advise the Minister on international trade and SACU related matters;
(h) take decisions on issues of national interest regarding industrial development; and
(i) report to the Minister on matters relating generally to the implementation of this Act.
[17 of 2023, s. 6.]
(1) A member other than the Chairperson shall hold office for a period of five years and shall be eligible for re-appointment for one further term not exceeding five years:
Provided that in appointing members of the Board the Minister shall specify the periods of appointment such that the periods of appointment of not more than one-third of the members shall expire in one year.
[17 of 2023, s. 7.]
(2) The Chairperson shall be appointed for a period of five years and shall be eligible for re-appointment for one further term not exceeding three years.
[17 of 2023, s. 7.]
9. Disqualification, removal and resignation of member of Board
(1) A person shall not be appointed as a member or be qualified to continue to hold office where he or she—
(a) has in terms of a law in force in any country—
(i) been adjudged or otherwise declared bankrupt and has not been discharged, or
(ii) made an assignment to, arrangement or composition with his or her creditors, which has not been rescinded or set aside; or
(b) has within the period of 10 years immediately preceding the date of his or her appointment, been convicted—
(i) of a criminal offence within Botswana, or
(ii) outside Botswana, of an offence which if committed in Botswana, would have been a criminal offence.
(2) The Minister may, in writing suspend from office a member against whom criminal proceedings are instituted for an offence in respect of which a sentence of imprisonment may be imposed, and whilst that member is so suspended, he or she shall not carry out any duties of the Board.
(3) The Minister shall remove from office a member if the member—
(a) is absent without reasonable cause from three consecutive meetings of the Board of which he or she has had notice;
(b) has been found to be physically or mentally incapable of performing his or her duties efficiently, and a medical doctor has issued a certificate to that effect;
(c) has failed to comply with the provisions of sections 16 or 17; or
(d) has been convicted of an offence under this Act, or under any other Act for which he or she is sentenced to imprisonment for a term of six months or more without the option of a fine.
(4) A member may resign from office by giving 30 days notice in writing to the Minister.
10. Vacation of office by member
A member shall vacate his or her office and his or her office shall become vacant—
(a) if he or she becomes disqualified, under section 9 to hold office as a member;
(b) if he or she is adjudged bankrupt or insolvent;
(c) if he or she is absent from three consecutive meetings of the Board without reasonable excuse;
(d) on his or her death;
(e) if he or she becomes mentally or physically incapable of performing his or her duties as a member;
(f) upon the expiry of one month’s notice in writing to the Minister of his or her intention to resign from office; or
(g) after a period of 30 days from the date that a ruling against the member is made on all appeals made in respect of a conviction of an offence under this Act, or under any other Act for which he or she is sentenced to imprisonment for a term of six months or more without an option of a fine.
(1) Where the office of a member becomes vacant before the expiry of a member’s term of office, the Minister shall appoint another person to be a member in place of the member who vacates office, until the expiry of a period during which such member would have otherwise continued in office.
(2) Subsection (1) shall not apply where the remainder of the period for which the member whose office has been vacated would otherwise have held office is less than six months.
PART IV
Meetings and proceedings of Board (ss 12-18)
12. Election of Vice Chairperson
(1) At the first meeting of the Board, the members shall elect, from among their number, a Vice Chairperson who shall hold office for such period, being not less than 12 months, as the Board may from time to time determine unless he or she ceases to be a member.
(2) On the expiry of the term of office of the Vice Chairperson or where the Vice Chairperson vacates his or her office as such, a new Vice Chairperson shall be elected by the members from among their number at the next meeting of the Board or as soon thereafter as may be convenient.
(3) The Vice Chairperson may vacate his or her office even though he or she remains a member.
(4) The Vice Chairperson shall, whenever the Chairperson is absent or unable to carry out his or her functions, exercise the functions of the Chairperson.
(1) The Board shall meet at least four times in a year to discharge its functions.
(2) Upon giving notice in writing of not less than 14 days, a meeting of the Board may be called by the Chairperson and shall be called if not less than one half of the members so request in writing.
(3) Where the urgency of any particular matter does not permit the giving of notice in accordance with subsection (2), a special meeting may be called by giving a shorter notice.
(4) There shall preside at any meeting of the Board—
(a) the Chairperson;
(b) in the absence of the Chairperson, the Vice Chairperson; or
(c) in the absence of the Chairperson and Vice Chairperson, such member as the members present may elect from amongst themselves for the purpose of that meeting.
(5) The quorum at any meeting of the Board shall be five members.
(6) The decisions of the Board shall be by a simple majority of votes, and in the event of an equality of votes, the Chairperson shall have a casting vote in addition to his or her deliberative vote.
(7) A decision of the Board shall not be rendered invalid by reason only of a vacancy in the Board or of the fact that a person who was not entitled to sit as a member did so sit.
(8) Subject to the provisions of this Act, the Board shall regulate its own proceedings.
(1) The Board may appoint committees of a general or special nature consisting of its members or such number of persons with specialised skills, not being members of the Board, and the members of such committees shall hold office for such period as the Board may determine.
(2) The Board may delegate to any committee the exercise of any of the powers which the Board is authorised by this Act to perform.
15. Co-option of other personnel
The Board may invite any person whose presence it considers necessary to attend and participate in its meetings, but such person shall have no right to vote.
(1) Where a member or any person assisting the Board or a committee of the Board is present at a meeting of the Board, at which meeting a matter which is the subject of consideration is one in which he or she is directly or indirectly interested in a private capacity, the member or the person shall, immediately upon the commencement of the meeting, disclose such interest and shall not, take part in any consideration or discussion of, or vote on any question concerning that matter.
(2) A disclosure of interest made in accordance with subsection (1) shall be recorded in the minutes of the meeting at which it is made.
(3) Where a member or a person fails to disclose his or her interest in accordance with subsection (1) and a decision by the Board is made benefiting such a member or person, such decision shall be void.
(4) A member or a person who contravenes the provisions of subsection (1) commits an offence and is liable to a fine not exceeding P5 000, or to imprisonment for a term not exceeding five years, or to both.
(1) A member or any person assisting the Board or a committee of the Board shall observe and preserve the confidentiality of all matters coming before the Board or the Committee, and such confidentiality shall subsist even after the termination of the member’s or the person’s terms of office.
(2) Any person to whom confidential information is revealed through working with the Board shall not disclose that information to any other person unless he or she is required to do so in terms of any written law or for purposes of any judicial proceedings.
(3) Any person who contravenes the provision of this section commits an offence and is liable to a fine not exceeding P5 000, or to imprisonment for a term not exceeding five years, or to both.
18. Remuneration and allowances
A member or a person assisting the Board or a committee of the Board shall where necessary, be paid such remuneration and allowances in connection with his or her service to the Board or committee as the Minister may from time to time determine.
PART V
Staff of Commission (ss 19-24)
(1) There shall be a Chief Executive Officer of the Commission, who shall be appointed by the Minister after consultation with the Board, on such terms and conditions as may be specified in the instrument of appointment.
(2) The Chief Executive Officer shall be a person with considerable knowledge and experience in any of the following—
(a) international trade;
(b) economics;
(c) law;
(d) accounting;
(e) agriculture;
(f) exporting and importing trade;
(g) freight forwarding trade;
(h) finance;
(i) insurance; or
(j) public affairs.
(3) Subject to subsection (2), the Chief Executive Officer may have such other qualifications and experience or proven ability in other fields as the Board and the Minister may consider relevant.
(4) The Chief Executive Officer shall be responsible to the Board.
(5) The Chief Executive Officer shall not, while in the employment of the Commission, engage in paid employment outside the duties of his or her office in the Commission.
(6) The Chief Executive Officer shall hold office for a period not exceeding five years, as may be specified in the instrument of appointment, and shall be eligible for re-appointment.
(7) The Minister may, after consultation with the Board, terminate the appointment of the Chief Executive Officer—
(a) if the Chief Executive Officer conducts himself or herself in a manner that is detrimental to the objective of, or the proper performance of the functions of, the Commission;
(b) if the Chief Executive Officer has been found to be physically or mentally incapable of performing his or her duties efficiently, and his or her medical doctor has issued a certificate to that effect;
(c) if the Chief Executive Officer becomes bankrupt; or
(d) if the Chief Executive Officer absents himself or herself from office without reasonable excuse.
(8) The Chief Executive Officer may resign from his or her office by giving six months’ notice, in writing, to the Board and the Minister.
20. Duties of Chief Executive Officer
(1) The Chief Executive Officer shall, subject to the control of the Board on matters of policy, be responsible for—
(a) the supervision of the day-to-day affairs of the Commission;
(b) ensuring that the Commission is carrying out the functions and duties placed upon it in terms of this Act;
(c) running the Commission on sound commercial and financial principles in accordance with policies and decisions made by the Board;
(d) controlling the resources and operations of all the services under the Commission;
(e) submitting financial reports, statements and estimates of income and expenditure to the Board for its approval;
(f) implementing the decisions of the Board; and
(g) carrying out any duty that may be conferred on him or her by the Minister or the Board.
(2) In the performance of his or her duties, the Chief Executive Officer shall keep the Board fully informed of the affairs of the Commission and shall consult the Board from time to time, as may be necessary.
(3) The Chief Executive Officer may delegate to the Secretary, any senior staff or any member of staff of the Commission, as he or she considers appropriate, the exercise of any powers which he or she is authorised to exercise under this Act.
(1) There shall be a Secretary of the Commission who shall be appointed by the Chief Executive Officer, with the approval of the Board, on such terms and conditions as may be specified in the instrument of appointment.
(2) The Secretary shall, in addition to any function that may be assigned to him or her by the Board or the Chief Executive Officer, be responsible for—
(a) taking the minutes of the meetings of the Board;
(b) keeping the records of all decisions of the Board; and
(c) keeping records of legal transactions of the Commission.
(3) The Secretary shall, unless under exceptional circumstances the Board otherwise directs, in writing, giving the circumstances leading to its decision, attend all meetings of the Board, but shall not have a right to vote on any matter before the Board.
(4) In the absence of the Secretary, the Board may appoint any member of staff of the Commission to perform the functions of the Secretary until the Secretary resumes office or the vacancy is filled, as the case may be.
(5) In the performance of his or her duties, the Secretary shall be responsible to the Chief Executive Officer.
(6) The Chief Executive Officer may, with the approval of the Board, terminate the appointment of the Secretary, on such grounds referred to in the instrument of appointment or on the same grounds specified in relation to the Chief Executive Officer under section 19(7).
22. Appointment of staff of Commission
(1) The Chief Executive Officer shall appoint the senior staff of the Commission with the approval of the Board.
(2) The Chief Executive Officer shall appoint such other staff as may be necessary for the proper discharge of the functions of the Commission.
(3) The terms and conditions of employment of the senior staff of the Commission as well as other staff shall be determined by the Board.
(4) The Commission shall, in the case of its staff other than the Chief Executive Officer, pay wages, salaries, pensions, allowances and any other pecuniary and non-pecuniary benefits as the Board shall determine.
23. Training of staff by Commission
The Commission shall put in place arrangements to train its staff to acceptable standards and for competency for the performance of their duties.
24. Exemption from personal liability
A member or any member of staff of the Commission or other person acting under the direction of the Commission or the Board or its committee shall not, in his or her personal capacity, be liable in civil or criminal proceedings in respect of any act done in good faith in the performance of his or her duties under this Act.
PART VI
Financial Provisions (ss 25-30)
(1) The funds of the Commission shall consist of—
(a) such capital as may be determined by the Government;
(b) such money as may be appropriated by the National Assembly for the purposes of the Commission;
(c) grants from Government;
(d) grants or loans from any body, organisation or person;
(e) interest on savings made by the Commission;
(f) such money as may accrue to the Commission in the discharge of its functions; and
(g) money from any other source as may be approved by the Minister.
(2) The Commission may, with the approval of the Board, invest any of its funds which it does not immediately require to use.
The Commission shall provide to the Minister such information concerning the operations, plans and financial accounts of the Commission as the Minister may, from time to time, consider necessary.
The financial year of the Commission shall be a period of twelve months commencing on the 1st April in each year and ending on the 31st March of the following year.
(1) The Commission shall keep proper books of accounts of all its income and expenditure and proper records in relation to those accounts.
(2) The Commission shall cause to be prepared in respect of each financial year and not later than four months after the end of that financial year, a statement of accounts which shall include—
(a) a balance sheet, a statement of income and expenditure and a statement of surplus and deficit; and
(b) any other information in respect of the financial affairs of the Commission as the Minister for the time being responsible for finance may require.
(1) The accounts of the Commission in respect of each financial year shall, within four months of the end of the financial year, be audited by an auditor appointed by the Board.
(2) The auditor shall report in respect of the accounts for each financial year, in addition to any other matter on which the auditor deems it pertinent to comment on, whether or not—
(a) the auditor has received all the information and explanation which, to the best of the auditor’s knowledge and belief, were necessary for the performance of the auditor’s duties;
(b) the accounts and related records of the Commission have been properly kept;
(c) the Commission has complied with all the financial provisions of this Act with which it is its duty to comply with; and
(d) the statement of accounts prepared by the Commission was prepared on a basis consistent with that of the preceding year and represents a true and fair view of the transactions and financial affairs of the Commission.
(3) The auditor’s report and a copy of the audited accounts shall, within 14 days of completion, be forwarded to the Commission by the auditor.
(1) The Commission shall, not later than six months after the end of each financial year, prepare an Annual Report on the performance of its functions during that year which Report shall include, among other things—
(a) the auditor’s report and a copy of the audited accounts; and
(b) a record of all directions received from the Minister in the course of the year.
(2) The Annual Report referred to under subsection (1) shall be presented to the Minister, who shall, within 28 days of receipt thereof, lay it before the National Assembly after which it shall be published in the Gazette.
PART VII
Specific functions of Commission (ss 31-34)
(1) A person wishing to have any matter investigated under this Act, shall lodge an application with the Chief Executive Officer, in the prescribed form together with a non-refundable prescribed fee.
(2) The Chief Executive Officer may, before investigating an application, give notice of the application in the Gazette, to allow interested parties, to make written representations about the application within the prescribed time.
(3) The Chief Executive Officer shall evaluate every application received by him or her and where the Chief Executive Officer approves the application, he or she shall submit a preliminary recommendation to the Board.
(4) Where the Board approves the recommendation, it shall authorise the Chief Executive Officer to carry out an investigation and submit a report to the Board.
(4A) Notwithstanding subsection (4), the Minister may, on the recommendation of the Board, request that provisional measures be imposed through SACU structures, where—
(a) a preliminary recommendation approved by the Board has made an affirmative determination of—
(i) dumping, subsidised exports and import surge, and
(ii) injury to industry caused by such subsidised export or import surge; and
(b) the Board considers it necessary or expedient that provisional measures be taken to prevent further injury being caused while investigations are being carried out.
[17 of 2023, s. 8(a).]
(5) Where an application under subsection (1) is in respect of dumping, the Chief Executive Officer shall have regard to—
(a) the price payable for goods sold for export, net of taxes, discounts and rebates granted for such goods;
(b) the comparable price payable in the ordinary course of trade for goods intended for consumption in the exporting country or country of origin; and
(c) the margin of dumping of goods, and make reasonable allowance for differences in conditions and terms of sale, difference in taxation and other difference affecting price comparability.
(6) The Chief Executive Officer shall submit the recommendations on completion of investigation to the Board.
(7) Where the Board approves the recommendations submitted to it under subsection (6), the Board shall submit a written report to the SACU Tariff Board.
(8) The Board shall publish, by notice in the Gazette, a final decision taken by the SACU Council in relation to a report submitted under subsection (7).
[17 of 2023, s. 8(b).]
The Chief Executive Officer may authorise in writing, any officer of the Commission to conduct an inquiry or investigation into any allegation made under this Act.
33. Powers of Chief Executive Officer
(1) Where in the course of an investigation under this Act, the Chief Executive Officer is satisfied that it would assist an investigation, he or she may require any person in writing and, within a specified time to—
(a) produce books, records, returns, reports, data stored electronically on a computer or otherwise and any other documents relating to the functions of any public or private body, relating to an investigation made under this Act; or
(b) provide any information or to answer any questions which the Chief Executive Officer considers necessary in connection with any investigation which is to be conducted under this Act.
(2) A person who fails to comply with subsection (1) commits an offence and is liable to a fine of P2 000, or to imprisonment for a term not exceeding two years, or to both.
(1) Where the Chief Executive Officer has reasonable grounds for suspecting that any person is engaged in an activity or a business connected with an investigation under this Act, the Chief Executive Officer may authorise the entry and search of that person’s premises, by an officer of the Commission appointed in writing by the Chief Executive Officer.
[17 of 2023, s. 9.]
(2) An officer appointed and authorised in terms of subsection (1) may, subject to subsection (3), at any time during business hours—
(a) enter and search any premises where the activity or business is carried on, for purposes of the investigation;
(b) require any person who appears to be engaged, or employed, in the activity or business under investigation to produce information or documents relating to the activity or business, including books, records, returns, reports, data stored electronically on a computer or otherwise; or
(c) seize any documents or item under paragraph (b) that has a bearing on the investigation.
[17 of 2023, s. 9.]
(3) An officer under subsection (2) may not enter and search any premises unless the—
(a) owner or person in charge of the premises at the time of entry consents to the entry and search of the premises; or
(b) officer obtains a warrant authorising such entry and search in accordance with subsection (4).
(4) A warrant for the purpose of this section shall be a warrant issued by a magistrate on application made by the officer under subsection (2).
[17 of 2023, s. 9.]
(5) A magistrate shall not issue a warrant under this section unless satisfied that there are reasonable grounds to believe that the person has in their possession or under their control anything that may afford evidence relevant to the investigation.
[17 of 2023, s. 9.]
(6) Notwithstanding subsection (4), an officer under subsection (2) may, without the consent mentioned in subsection (3)(a) or a warrant, enter any premises to exercise the powers conferred by subsection (2) if there are reasonable grounds to suspect that it is necessary to do so to prevent loss, or destruction of, or damage to, of any evidence relevant to the investigation.
[17 of 2023, s. 9.]
(7) A person who, without reasonable excuse, refuses to allow an officer under subsection (2) entry to exercise the powers of search conferred by this section, commits an offence and is on conviction liable to a fine of not less than P50 000, or imprisonment for a term not exceeding two years, or to both.
[17 of 2023, s. 9.]
34A. Protection of confidential information
(1) Every member, the Chief Executive Officer, or any other person employed by the Commission shall regard, as confidential, all documents and information which may come into his or her possession or to his or her knowledge in the course of his or her duties.
(2) The provisions of subsection (1) shall subsist even after the vacation of office by such a member, Chief Executive Officer or person employed by the Commission.
(3) In this section, “confidential information” means trade, business or industrial information that—
(a) belongs to a person;
(b) has a particular economic value; and
(c) is not generally available to or known by others, and the disclosure of which could—
(i) have a significant adverse effect on the owner or on the person that provided the information, or
(ii) give a significant competitive advantage to a competitor of the owner.
(4) Subsection (1) shall not apply to a disclosure of information—
(a) for the purposes of this Act;
(b) in connection with legal proceedings;
(c) made with the consent, in writing, of the person affected by the disclosure;
(d) made in connection with the investigation of a criminal offence; or
(e) that is already in the public domain.
(5) A person who discloses to any person, information relating to an investigation in contravention of subsection (1), commits an offence and shall be, on conviction, liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding two years, or to both.
[17 of 2023, s. 10.]
PART VIII
Miscellaneous provisions (ss 35-37)
The Chief Executive Officer shall issue to an officer of the Commission, an identity card which shall be prima facie evidence of the appointment of such person, as an officer of the Commission.
A person who knowingly—
(a) makes or causes to be made to an officer of the Commission a false report regarding the commission of any offence; or
(b) misleads an officer of the Commission by giving false information or by making false statements or accusations,
commits an offence and is liable on conviction to a fine of P2 000, or to imprisonment for a term not exceeding two years, or to both.
36A. Cooperation with other regulatory authorities
(1) In carrying out its functions under this Act, the Commission shall consult with the Revenue Service and other regulatory authorities or Government agencies that have functions related to those of the Commission.
(2) The Commission may enter into arrangements with the Revenue Service and other regulatory authorities or Government agencies referred to in subsection (1).
(3) Without limiting the generality of subsection (2), such arrangements may include the—
(a) exchange of information between the Commission and the Revenue Service, other regulatory authorities or Government agencies;
(b) enforcement of this Act, Customs Act, Excise Duty Act or other trade related laws; and
(c) conduct of joint investigations.
[17 of 2023, s. 11.]
(1) The Minister may make regulations prescribing anything required to be prescribed under this Act or for the better carrying out of the provisions of this Act.
(2) Without prejudice to the generality of subsection (1), regulations may provide for—
(a) applications for investigations carried out under Part VII;
(b) any duties to be paid for dumping, countervailing, import, export and safeguards under the Customs Act and Excise Duty Act;
[17 of 2023, s. 12(a).]
(c) fees payable under this Act;
(d) any other thing which is to be prescribed under this Act; and
(e) the procedure for investigation and evaluation of applications.
[17 of 2023, s. 12(b).]
(3) Regulations made under this section may prescribe for any person who, without reasonable cause, fails to comply with the regulations to be guilty of an offence and liable to a fine not exceeding P50 000 or imprisonment for a term not exceeding two years, or to both, and in the case of a continuing offence, to a fine of P50 per day for every day during which such offence continues, provided such fine shall not exceed P50 000.
[17 of 2023, s. 12(c).]