NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Non-Bank Financial Institutions Regulatory Authority (Commodities Exchange Licensing) Regulations

Non-Bank Financial Institutions Regulatory Authority (Declaration of Botswana Stock Exchange Limited as Self-Regulatory Organisation) Order

Non-Bank Financial Institutions Regulatory Authority (Micro Lending) Regulations

Non-Bank Financial Institutions Regulatory Authority (Prescribed Securities) Order

Non-Bank Financial Institutions Regulatory Authority (Supervisory Levies) Regulations

Non-Bank Financial Institutions Regulatory Authority (Tribunal) Regulations

“>NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY (PRESCRIBED SECURITIES) ORDER

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(25th July, 2008)

ARRANGEMENT OF PARAGRAPHS

PARAGRAPH

1. Citation

2. Prescribed securities

S.I. 63, 2008.

1. Citation

This Order may be cited as the Non-Bank Financial Institutions Regulatory Authority (Prescribed Securities) Order.

2. Prescribed securities

For the purposes of the definition of securities in paragraph (e) of section 2 of the Act, the following instruments are hereby prescribed—

(a) instruments traded on a commodities exchange licensed under the Act, which shall include—

(i) derivative contracts; and

(ii) futures or options on any commodity, property, goods, index, interest or other rate, security, currency or future,

which may be settled by either physical delivery or cash.

“>NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY (COMMODITIES EXCHANGE LICENSING) REGULATIONS

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(22nd August, 2008)

ARRANGEMENT OF REGULATIONS

REGULATION

1. Citation

2. Interpretation

3. Application for licence

4. Grant of licence

5. Minimum financial requirements

6. Human and technology resources

7. Exchange to establish proper markets

8. Business rules, listing rules and default rules

9. Appropriate access to exchange facilities for members

10. Systems and controls

11. Clearing and settlement arrangements

12. Transaction recording procedures

13. Safeguarding and administering assets

14. Investor protection

15. Ongoing compliance

16. Ongoing obligations

17. Addressing complaints by market users

18. Deterrence of misconduct

19. Promoting and maintaining standards

20. Whistle-blowing procedure

21. False and misleading statements to the Regulatory Authority

Schedule

S.I. 74, 2008.

1. Citation

These Regulations may be cited as the Non-Bank Financial Institutions Regulatory Authority (Commodities Exchange Licensing) Regulations.

2. Interpretation

In these Regulations—

“business rules” means the business rules of an exchange as required under regulation 8;

“clearance and settlement system” has the meaning assigned to it under the National Clearance and Settlement Systems Act (Cap. 46:06);

“exchange” means a commodities exchange licensed and regulated under these Regulations;

“futures contracts” means agreements to buy or sell a commodity or financial instrument or currency in a designated future date at a price agreed upon by the buyer and seller;

“futures options” means the right of choice where a buyer of options has the right but not the obligation to buy or sell futures contracts in accordance with market rules;

“listed securities” means securities included in the list of securities kept by an exchange;

“listing rules” means the listing rules of an exchange as required under regulation 8;

“markets” means a commodities market operated by an exchange licensed and regulated under these Regulations;

“trading” means the sale and purchase of listed commodities.

3. Application for licence

(1) No person shall carry out or hold himself out as carrying out any business as a commodities exchange without a licence issued by the Regulatory Authority.

(2) An application for a licence to carry out business as a commodities exchange shall be in Form No. 1 set out in the Schedule.

(3) An application for a licence under subregulation (2) shall, in a manner and format as the Regulatory Authority may require, be accompanied by—

(a) full personal details, qualifications, experience and economic interests of its—

(i) controller,

(ii) manager,

(iii) principal officer, and

(iv) other senior officers;

(b) full personal details, qualifications, experience, economic interests and occupation of the—

(i) directors of its board,

(ii) shareholders of the applicant, and

(iii) beneficial holders of the applicant;

(d) a business plan which shall inter alia set forth—

(i) the internal control procedures of the applicant, and

(ii) proposed organisational structure and the powers and duties of office bearers;

(e) copies of contracts and arrangements for oversight of activities, in case of outsourcing;

(f) evidence of the minimum financial requirements as provided in regulation 5;

(g) evidence of human and technology resources sufficient to efficiently operate and manage its facilities as provided in regulation 6;

(h) evidence of capacity of exchange to be licensed to establish proper markets that are conducive to economic good, as provided in regulation 7;

(i) business rules and listing rules adequate to ensure, as far as is reasonably practicable, that the market will operate fairly, transparently and in an orderly way as provided in regulation 8;

(j) adequate systems and controls to maintain market integrity, including avoidance of conflict of interest as provided in regulation 10;

(k) an application for the Certificate of Recognition under the National Clearance and Settlement Systems Act (Cap. 46:06) and additional details with respect to clearing and settlement arrangements as provided in regulation 11;

(l) the list of instruments intended to be traded at the commodities exchange;

(m) the licensing fee in the amount of P50,000; and

(n) additional requirements as contained in the Act and these Regulations, as the Regulatory Authority may direct.

(4) Any person who contravenes subregulation (1) commits an offence and shall on conviction, be liable to the penalty provided in section 42(2) of the Act.

4. Grant of licence

(1) If the Regulatory Authority is satisfied that—

(a) the exchange to be established by the applicant will help the development of the financial markets and protect the interests of investors and the public;

(b) the applicant has complied with the requirements under regulation 3(2);

(c) the applicant has submitted the application for a Certificate of Recognition to operate a clearance and settlement system in accordance with the National Clearance and Settlement Systems Act (Cap. 46:06);

(d) the applicant has the capacity and intention to—

(i) promote fair, orderly and transparent commodities and derivatives markets;

(ii) facilitate efficient commodities and derivatives markets for the allocation of capital and the transfer of risks;

(iii) reduce systemic risk or any other risks that may adversely affect fair and orderly trading on the exchange;

(iv) detect and deter market manipulation, financial crime, market misconduct and other unfair trading practices, and

(v) maintain integrity of trading, clearing and settlement through fair and equitable rules that strike a balance between the demands of market participants or users of the commodities and derivatives markets; and

(e) the applicant has demonstrated the capacity to meet the compliance and obligation requirements as provided for under regulations 15 and 16, it shall, within 90 days of receiving the application, grant a licence to the applicant.

(2) A licence issued under this regulation—

(a) shall contain a condition stipulating that the Regulatory Authority shall cancel the licence issued for the commodities exchange if the application submitted by the licensed commodities exchange for a Certificate of Recognition to operate a clearance and settlement system, in accordance with the National Clearance and Settlement Systems Act (Cap. 46:06), is unsuccessful; and

(b) may contain such other conditions as the Regulatory Authority may determine.

5. Minimum financial requirements

(1) An exchange shall have and maintain at all times minimum financial resources as follows—

(a) cash amounts equal to one half of the estimated gross operating costs of the exchange for the next 12 month period; and

(b) such other base capital amount not less than US$10,000,000, as may be set by the Regulatory Authority.

(2) The Regulatory Authority may increase the minimum base capital under subregulation (1)(a) as it may deem necessary depending on the risk profile of the exchange.

(3) An exchange shall have financial resources adequate with respect to the nature, size, and complexity of its business for the purpose of guarding against the risk of failure to fulfil liabilities as they fall due.

6. Human and technology resources

(1) An exchange shall have sufficient human and technology resources to operate its markets to the satisfaction of the Regulatory Authority.

(2) For purposes of subregulation (1) an exchange shall satisfy the Regulatory Authority with respect to—

(a) employing fit and proper staff, appropriately trained for the duties to be performed and trained to the standards required;

(b) appointing a key management team with adequate levels of experience and expertise to supervise and monitor the operations and functions of the exchange as a self-regulatory organisation;

(c) owning technology resources that are established and maintained in such a way as to ensure that they are secure and maintain the confidentiality of the data they contain.

(3) In considering whether a person is a fit and proper person the Regulatory Authority may have regard to—

(a) financial standing;

(b) economic interests;

(d) ability to perform the relevant functions properly, efficiently, honestly and fairly;

(e) reputation, character, financial integrity and reliability; and

(f) criminal record and/or conviction for any offence involving dishonesty.

7. Exchange to establish proper markets

An exchange shall establish and operate proper markets that are conducive to the economic good and that do not cause or promote instability, to the satisfaction of the Regulatory Authority by—

(a) having systems, procedures and policies which guarantee that only securities or contracts in which there is a proper market, or those securities which are admitted to its official list, are admitted to trading;

(b) ensuring the continuing existence of a proper market by means of—

(i) having arrangements in place for relevant market information to be made available to persons engaged in dealing on an equitable basis,

(ii) providing adequate guarantees to ensure that securities serve an economic purpose,

(iii) having a sufficient range and number of investors willing and able to generate adequate supply and demand in the securities,

(iv) where appropriate, having a sufficiently liquid underlying cash market,

(v) in the case of physically settled securities, having capacity to make and take delivery of securities or underlying assets, and

(vi) the rules of an exchange allowing for the discontinuance or suspension of trading in securities when disclosure obligations have not been complied with and in other appropriate circumstances.

8. Business rules, listing rules and default rules

(1) An exchange shall, to the satisfaction of the Regulatory Authority, have clear and fair business rules which are legally enforceable against its members, published and made freely available.

(2) An exchange shall have compliance procedures in place to ensure its business rules are enforced, complaints regarding persons granted access to its facilities are investigated, appeal procedures are in place and where appropriate, a disciplinary action resulting in financial and other types of penalties is available.

(3) An exchange, which admits securities to its own official list of securities, shall have listing rules which must be approved by the Regulatory Authority.

(4) The listing rules of an exchange shall, to the satisfaction of the Regulatory Authority, be clear and fair, legally enforceable and published and made freely available.

(5) The listing rules shall include the type of securities being admitted to the official list of securities, and requirements with respect to—

(a) an issuers financial reporting, how regular reports are made and the international accounting standards or any other accounting standard accepted by the Regulatory Authority to which they comply;

(b) auditing standards;

(d) the amount of securities in the class of securities which can be considered as in free float;

(e) any restrictions that may exist on transferability; and

(f) any other relevant matter deemed necessary by the Regulatory Authority.

(6) An exchange shall have default rules in place which in the event of a member being or appearing to be unable to fulfil its obligations in respect of one or more contracts, enables action to be taken with respect to unsettled market contracts to which the member is a party.

9. Appropriate access to exchange facilities for members

An exchange shall restrict access to its facilities or trading systems to—

(a) persons who are licensed or otherwise exempt from licensing under the Act; or

(b) who are granted access on the basis of a criteria which have been set out under its business rules.

10. Systems and controls

(1) An exchange shall at all times ensure that its systems and controls are adequate and suitable for the performance of its functions and appropriate to the size and nature of its operations.

(2) Systems and controls should exist in relation to—

(a) the transmission of information to users of its facilities;

(b) the assessment and management of risks including conflicts of interest;

(d) the safeguarding and administration of assets which belong to its users; and

(e) the fitness and propriety of its employees and the adequacy of its technology resources.

(3) An exchange shall have systems and controls in relation to the supervision and monitoring of transactions on its facilities or trading systems.

(4) An exchange shall carry out regular reviews of its systems and controls.

11. Clearing and settlement arrangements

(1) An exchange shall obtain a Certificate of Recognition to operate a clearance and settlement system in accordance with the National Clearance and Settlement Systems Act (Cap. 46:06) for the purpose of having in place clearing and settlement arrangements as required by law and to the satisfaction of the Regulatory Authority.

(2) An applicant shall submit its application for a Certificate of Recognition to operate a clearance and settlement system, addressed to the appropriate authority as provided under the National Clearance and Settlement Systems Act, to the Regulatory Authority jointly with the application for a licence to carry out business as a commodities exchange.

(3) The Regulatory Authority shall present the application, and represent the applicant before the appropriate authorities, if it is satisfied that the application submitted for a Certificate of Recognition to operate a clearance and settlement system under subregulation (2) is in compliance with the requirements of the National Clearance and Settlement Systems Act.

(4) An exchange shall ensure that adequate and satisfactory arrangements are in place for securing the timely discharge of the rights and liabilities of the parties to transactions conducted on or through its facilities and trading systems.

(5) An exchange shall ensure that a central securities depository carrying out clearing services, which the exchange utilises, provides services that include satisfactory arrangements for securing the timely discharge of the—

(a) rights and liabilities; and

(b) settlement obligations,

of the parties to transactions for which the exchange provides such services.

(6) In determining whether this licensing requirement is complied with, the Regulatory Authority shall consider where applicable—

(a) the exchanges rules, procedures and practices relating to clearing and settlement;

(b) arrangements for matching trades and ensuring that the parties are in agreement about trade details;

(d) arrangements for taking action to settle if settlement does not take place in accordance with its rules;

(e) arrangements for monitoring settlement performance;

(f) the exchange’s default rules and default procedures; and

(g) arrangements for settlement guarantee funds.

12. Transaction recording procedures

An exchange shall ensure that satisfactory arrangements are made for—

(a) recording the activity and transactions effected on or through its facilities;

(b) maintaining the activity and transaction records for at least seven years; and

13. Safeguarding and administering assets

An exchange shall ensure that where its facilities provide for the safeguarding and administration of assets which belong to users of those facilities, satisfactory arrangements are made for that purpose and clear terms of agreement exist between the users of the facility and the exchange.

14. Investor protection

(1) An exchange shall at all times provide safeguards to ensure investor protection, to such standard as the Regulatory Authority may determine.

(2) Without derogating from the generality of subregulation (1) an exchange shall have business rules, procedures and an effective surveillance programme that ensures that business conducted on or through its facilities or trading systems is conducted in an orderly manner to provide proper protection to investors, including—

(a) segregation of client funds; and

(b) monitoring for conduct which may amount to market misconduct, financial crime and money laundering.

15. Ongoing compliance

(1) An exchange shall provide details of how it will ensure ongoing compliance with its business and listing rules, to the satisfaction of the Regulatory Authority.

(2) An exchange shall have compliance procedures in place to ensure that—

(a) its business rules and listing rules, where applicable, are enforced;

(b) complaints regarding persons granted access to its facilities are investigated;

(d) where appropriate disciplinary action and appropriate penalties are available.

16. Ongoing obligations

(1) An exchange shall at all times do all things necessary to make sure that its markets are fair, transparent, orderly and efficient for the purpose of reducing any systemic or any other type of risk that may adversely affect fair and orderly trading on the exchange.

(2) An exchange shall submit to the Regulatory Authority a report in writing at such times as the Regulatory Authority may direct addressing matters affecting the exchange contained in the Act and such other matters as the Regulatory Authority may direct to be submitted.

(3) The report referred to in subregulation (2) may include the following matters—

(a) ongoing compliance by the exchange with the terms of its licence;

(b) complaints received and dealt with;

(d) adequacy and performance of systems and controls;

(e) financial matters concerning the operation of the exchange or the central securities depository; and

(f) other relevant matters.

17. Addressing complaints by market users

(1) An exchange shall have in place procedures to address complaints by market users so as to ensure that due process is upheld on an ongoing basis, to the satisfaction of the Regulatory Authority, which shall include—

(a) effective arrangements for the investigation and resolution of complaints made against the exchange;

(b) establishing and maintaining a register of complaints made against the exchange and resolutions reached.

(2) Records of the complaints shall be maintained for a minimum of seven years.

18. Deterrence of misconduct

(1) An exchange shall have appropriate measures to identify, deter and prevent market misconduct, financial crime and money laundering on and through the exchange facilities and report to the Regulatory Authority any market misconduct, financial crime and money laundering.

(2) An exchange shall have rules and procedures to prohibit or prevent any—

(a) abusive trading or act and trades in which a party is improperly indemnified against losses;

(b) trades intended to create a false appearance of trading activity;

(d) pre-arranged or pre-negotiated trades;

(e) trades intended to assist or conceal any potentially identifiable trading abuse; and

(f) trades which one party does not intend to close or settle.

19. Promoting and maintaining standards

(1) An exchange shall provide details of how it will promote and maintain standards, as required by the Regulatory Authority from time to time.

(2) An exchange shall take all necessary steps to promote and maintain high standards of integrity and fair dealing in the carrying on of business on or through its facilities or trading systems and co-operate with the Regulatory Authority with regard to regulatory matters when and as required.

20. Whistle blowing procedure

An exchange shall have appropriate procedures and protections for allowing employees to disclose any information to the Regulatory Authority or other appropriate bodies involved in the prevention of market misconduct, financial crime and money laundering.

21. False and misleading statements to the Regulatory Authority

(1) In accordance with section 92 of the Act, no person shall, in connection with an application submitted to the Regulatory Authority for a licence under these Regulations—

(a) make or procure the making of a statement to the Regulatory Authority which he or she knows or ought reasonably to know is false or misleading;

(b) omit to state any matter to the Regulatory Authority where he or she knows or ought reasonably to know that, because of the omission, the application is misleading.

(2) Any person who contravenes subsection (1) shall be liable to the civil penalty imposed by the Regulatory Authority under section 92(1).

SCHEDULE

(reg. 3(2))

Form 1
APPLICATION FOR A COMMODITIES EXCHANGE LICENCE

Submitted by …………………………………………………

……………………………………………………………………..

……………………………………………………………………

Full address ……………………………………………..

…………………………………………………………………..

…………………………………………………………………

Date …………………………………………………………

To:

The Chief Executive
Non-Bank Financial Institutions Regulatory Authority
Gaborone

Dear Sir/Madam,

I/We apply for the licensing of function a3(msg) { myWindow=window.open(”,”,’width=227,height=83,left=400 ,scrollbars=1,top=400,screenX=400,screenY=100′);myWindow.document.write(msg);}1 …………………………………………………………………………

……………………………………………………………………………………………………………………………

as a commodities exchange.

The registered office of the commodities exchange shall be at function a4(msg) { myWindow=window.open(”,”,’width=294,height=101,left=400 ,scrollbars=1,top=400,screenX=400,screenY=100′);myWindow.document.write(msg);}2 ……………………..

……………………………………………………………………………………………………………………………

The head office of the commodities exchange shall be at function a5(msg) { myWindow=window.open(”,”,’width=194,height=80,left=400 ,scrollbars=1,top=400,screenX=400,screenY=100′);myWindow.document.write(msg);}3 …………………………….

……………………………………………………………………………………………………………………………

The person managing the business of the commodities exchange will be……..

……………………………………………………………………………………………………………………………

Address ……………………………………………………………………………………………………………..

……………………………………………………………………………………………………………………………

The Principal Officer/Representative of the commodities exchange …………………

……………………………………………………………………………………………………………………………

Address ……………………………………………………………………………………………………………..

……………………………………………………………………………………………………………………………

Date on which applicant intends to commence carrying out business as a commodities exchange in or within Botswana ………………………………………………………………………….

I/We enclose:

(a) two copies of the-

(i) Rules;

(ii) Constitution and/or other incorporating documents of the company (certified);

(b) all other requirements to accompany the application in terms of regulation 4(2);

Yours faithfully

………………………………………………………..
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“>NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY (MICRO LENDING) REGULATIONS

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(9th March, 2012)

ARRANGEMENT OF REGULATIONS

REGULATION

PART I
Preliminary

1. Citation

2. Interpretation

PART II
Licensing Requirements

3. Application for licence

4. Issue of licence

5. Requirement to be fit and proper person

6. Minimum financial requirements

PART III
Operational Requirements

7. Display of information on premises

8. Marketing and advertising

9. Assessment mechanisms

10. Disclosure of salient features

PART IV
Loan Agreement

11. Loan agreement requirements

12. Cooling-off

13. Provision of reasons for refusal to give credit

14. Repayment and collection methods

15. Duty to provide information to borrower

16. Duty to provide statement of loan agreement

PART V
Confidentiality Requirements

17. Confidentiality of information

18. Forwarding of adverse credit information

PART VI
General

19. Accounts and records of micro lender

20. Register

21. Dispute resolution

22. Credit life insurance

23. Maximum cost of credit

24. Corporate governance

25. Submission of information to Regulatory Authority

26. Periodic and other returns of micro lender

SCHEDULE

S.I. 14, 2012.

PART I
Preliminary (regs 1-2)

1. Citation

These Regulations may be cited as the Non-Bank Financial Institutions Regulatory Authority (Micro Lending) Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires—

“annual interest rate” means the annual percentage rate of interest at which money is borrowed inclusive of all charges, except insurance premiums levied on the loan, and shall be expressed in terms of simple interest only and is calculated as—

R=I/Pt, where I is the total interest paid for the borrowing, P is the principal amount of the borrowing and t is the period of time the loan is outstanding;

“authorised address” means the address at which a micro lender is authorised, by the licence issued by the Regulatory Authority, to carry on a business as a micro lender;

“borrower” means a person who has concluded, or is in the process of concluding a loan agreement with a micro lender;

“business day” excludes any public holiday as determined by the Public Holidays Act (Cap. 03:07) as well as a Saturday and Sunday;

“juristic person” includes a partnership, association or other body of persons, corporate or unincorporated;

“loan agreement” means a loan agreement concluded or to be concluded between a micro lender and a borrower;

“minimum financial balance” means the minimum cash balance that the micro lender shall have on-hand as a liquidity reserve at all times;

“principal amount” means the original amount advanced to a borrower, excluding any initial charges;

“repayment period” means the period stated in the loan agreement as the period within which the borrower is obliged to repay the loan;

“total cost of credit”, in any loan agreement, means the difference between the aggregate of all repayments to be made and the principal amount; and

“total monthly cost of credit rate” means the monthly percentage rate at which money is borrowed, inclusive of all charges, except insurance premiums levied on the loan and is calculated as—

(aggregate of all repayments principal amount)(principal amount) x (100/ repayment period in months).

PART II
Licencing Requirements (regs 3-6)

3. Application for licence

(1) No person shall carry out a business as a micro lender without a licence issued by the Regulatory Authority.

(2) An application for a licence to carry out a business as a micro lender shall be made to the Regulatory Authority in Form 1 set out in the Schedule.

(3) An application for a licence under subregulation (2) shall be accompanied by—

(a) the full personal details, qualifications, experience and economic interests of its—

(i) controller,

(ii) manager,

(iii) principal officer, and

(iv) other senior officers; or

(b) full personal details, qualifications, experience, economic interests and occupation of the

(i) directors of its board,

(ii) shareholders of the applicant, and

(iii) beneficial holders of the applicant;

(d) any evidence of human resources sufficient to efficiently operate and manage its facilities;

(e) any evidence of the minimum financial requirements as provided in regulation 6; and

(f) a licence fee of P5,000.

(4) Any person who contravenes the provisions of subregulation (1) commits an offence and is liable to a fine specified in section 42 of the Act.

4. Issue of licence

(1)Where the Regulatory Authority is satisfied that the applicant has—

(a) complied with the requirements of regulation 3; and

(b) demonstrated the capacity to meet the obligations and compliance requirements as provided for under Part III of these Regulations, it shall, within 90 days of receiving the application, issue a licence to the applicant in Form 2 set out in the Schedule.

(2) A licence issued under this regulation—

(a) shall be for a period of five years; and

(b) may be subject to such conditions as the Regulatory Authority may determine.

(3) A person issued with a licence under this regulation may apply to the Regulatory Authority for an approval to open a branch of his or her micro lending business in Form 3 as set out in the Schedule, and such application shall be accompanied by a processing fee of P1,000.

5. Requirement to be fit and proper person

(1) A controller of a micro lender to be licensed under these Regulations shall demonstrate, at time of application and when requested to do so, that he or she, individually or collectively with other controllers of the micro lender—

(a) is in a position to perform his or her tasks with integrity, prudence and professional skill; and

(b) for purposes of the licence applied for, has sufficient business knowledge and experience.

(2) No natural person shall be licensed as a micro lender if that person—

(a) is an un-rehabilitated insolvent in any country;

(b) is under the age of 18 years;

(d) has been declared mentally unfit by a competent court in any country;

(e) has been removed from an office of trust on account of misconduct relating to fraud or misappropriation of money in any country;

(f) has been a director or member of a governing body of an entity at the time that such an entity was involuntarily deregistered in terms of any law; or

(g) has been convicted during the previous ten years, in Botswana or in any country, of—

(i) dishonesty or any other crime of a serious nature,

(ii) a crime involving violence against another person, or

(iii) an offence in terms of the Act.

(3) Any natural person who becomes disqualified in terms of subregulation (2) after the date of application shall notify the Regulatory Authority immediately, and if he or she fails to do so, shall be liable to a civil penalty not exceeding P5,000, to be imposed by the Regulatory Authority.

(4) A juristic person shall not be licensed if any natural person, who would be disqualified in terms of subregulation (2), is a controller, manager, principal officer or other senior officers of that juristic person, either alone or in conjunction with others.

(5) Any natural person who, after being licensed as a micro lender, becomes disqualified in terms of subregulation (2) shall notify the licensed micro lender where the micro lender is a juristic person, and the Regulatory Authority immediately and if he or she fails to do so, shall be liable to a civil penalty not exceeding P5,000, to be imposed by the Regulatory Authority.

(6) Where a natural person becomes disqualified in terms of subregulation (2) after being licensed as a micro lender, the Regulatory Authority may—

(a) request the natural person to dispose of his or her interest in the micro lender; or

(b) after considering the circumstances and the nature of the disqualification, impose conditions regarding the continuation of the licence.

(7) A trust shall not be licensed to carry on a business as a micro lender under these Regulations.

6. Minimum financial requirements

(1) Any person applying to carry on a business as a micro lender shall have and maintain at all times a minimum financial balance of P20,000.

(2) A person licensed as a micro lender under these Regulations shall demonstrate to the Regulatory Authority, when requested to do so, that the micro lender is financially solvent.

(3) The Regulatory Authority shall determine the financial solvency of a micro lender by financial analysis conducted by the Regulatory Authority on the micro lenders operations from time to time.

(4) The Regulatory Authority may declare a micro lender that has failed to maintain a minimum financial balance or to demonstrate its state of solvency as provided in subregulations (1) and (2) to be in an unsound financial position and may review the micro lender to determine whether it qualifies to continue to be licensed as a micro lender under these Regulations.

(5) Where the Regulatory Authority, after reviewing a micro lender, is of the view that the micro lender is in an unsound financial position, it may suspend the micro lenders licence for the period specified in the written notice given to the micro lender and the Regulatory Authority shall in so doing act in accordance with section 47(2) of the Act.

PART III
Operational Requirements (regs 7-10)

7. Display of information on premises

(1) The following information shall be displayed by a micro lender in a prominent place on the micro lenders business premises—

(a) a copy of the licence issued under regulation 4;

(b) formal business hours for each day of the week;

(d) Dispute Resolution Policy Procedure including the place and contact numbers where a complaint may be lodged.

(2) A micro lender that contravenes the provisions of subregulation (1) shall be liable to a civil penalty not exceeding P5,000, to be imposed by the Regulatory Authority.

8. Marketing and advertising

(1) A micro lender shall not—

(a) issue statements or advertisements which make false, misleading or extravagant claims;

(b) use any harmful or misleading ways to solicit business; or

(2) A micro lender shall at all times—

(a) with each advertisement or marketing material, display with reasonable prominence the following statement- “CAUTION! Borrowing more than you can afford to repay could lead to severe financial difficulties”; and

(b) give an indication of the total monthly cost of credit rate with all marketing or advertising statements.

9. Assessment mechanisms

(1) A micro lender shall consider, on the balance of available information at the time a determination is made including the borrowers history of debt repayment, whether a particular borrower is or will be able to satisfy in a timely manner, all the obligations under the credit agreements to which the borrower is or would be party.

(2) The micro lender shall not enter into a loan agreement with a borrower without first taking reasonable steps to asses the proposed borrowers general understanding and appreciation of the—

(a) risks and cost of the proposed credit; and

(b) rights and obligations of a borrower under such agreement.

(3) A micro lender shall—

(a) have its own loan underwriting criteria, approval documentation, evaluative mechanisms and procedures to be used in its assessment obligations, including situations under which credit will not be available;

(b) Where the borrower is married in community of property, ensure that the borrower submits a complete consent of spouse in Form 4 set out in the scheduled; and

(c) keep a record and copy of each loan assessment process as well as the final outcome of the assessment for a minimum period of six years.

(4) A micro lender shall be considered by the Regulatory Authority as not carrying on its business with integrity, prudence and professional skill where the micro lender has—

(a) failed to conduct a proper assessment under this regulation; or

(b) entered into a loan agreement despite the fact that based on the balance of information available and based on the evaluative mechanisms and procedures in place for the micro lender, the loan agreement should have not been entered into.

(5) The provisions of this regulation shall not apply to a loan agreement where the borrower is a juristic person.

10. Disclosure of salient features

(1) A micro lender shall provide a borrower, prior to signing of the loan agreement, at the latest, with a salient features schedule in writing, stating—

(a) the principal amount;

(b) the total amount repayable over the repayment period;

(d) the repayment period;

(e) the number of instalments and the amount of each instalment;

(f) the total monthly cost of credit rate;

(g) a statement providing details of whether the interest rate element of the total monthly cost of credit is fixed for the repayment period or variable, and if variable, how and under which conditions it may vary;

(h) the circumstances under which penalties would be charged, the amount of the penalty, any additional costs that may have to be paid and the method of calculating the penalty; and

(i) the nature and amount of any insurance if required, including the name of the insurer, the amount and frequency of the premiums payable.

(2) A micro lender shall make available to a borrower, a revised salient features schedule, within a reasonable time, whenever the interest rate element under subregulation (1)(g) is changed in terms of any variable clause of the loan agreement.

(3) The aggregate of the penalty amount referred to in subregulation 1(h) and the additional costs, excluding identifiable legal fees shall not exceed five per cent of the outstanding principal amount per month with a maximum not exceeding the outstanding principal amount.

PART IV
Loan Agreement (regs 11-16)

11. Load agreement requirements

(1) A micro lender shall ensure that a loan agreement concluded with a borrower—

(a) contains the minimum requirements set out in Form 5 in the Schedule;

(b) is written in clear and simple English or Setswana language; and

(2) An agreement that is not concluded in accordance with the requirements of Form 5 set out in the Schedule shall have no effect in so far as it is inconsistent with those requirements.

(3) An agreement shall have no effect unless—

(a) the provisions of subsection (1) have been complied with before the agreement is signed by the borrower;

(b) it is in writing and is signed by the borrower before the loan is advanced to the borrower; and

(c) a copy of the loan agreement is provided to the borrower, within three business days of the borrowers signature of the loan agreement.

(4) A micro lender shall, before concluding a loan agreement with a borrower—

(a) provide the borrower with an opportunity to read the loan agreement, or have it read to him or her where the borrower is illiterate; and

(b) explain to the borrower, in a language understood by the borrower the essential terms of the loan agreement so as to ensure that the meaning and the consequences of the loan agreement are understood.

12. Cooling-off

A micro lender shall, in terms of the provisions of the loan agreement, allow the borrower to terminate the loan agreement within at least two days after the signing of the loan agreement or approval, where it happened earlier, and shall not charge the borrower any fee for the termination, provided that—

(a) where the principal amount has been advanced to the borrower, the borrower shall simultaneously repay the amount advanced; and

(b) the micro lender is entitled to charge the borrower the prorated cost of credit.

13. Provision of reasons for refusal to give credit

(1) A micro lender shall, on request from a borrower, advise the borrower, in writing, of the reasons for—

(a) refusing to enter into a loan agreement with the borrower; or

(b) changing the terms and conditions of the credit applied for by the borrower.

(2) When responding to a request made in terms of subregulation (1), a micro lender that based its decision on an adverse credit report received from a third party shall advise the borrower in writing of the name, address and other contact particulars of that third party.

14. Repayment and collection methods

(1) A micro lender shall not, as security for repayment of credit advanced—

(a) require the disclosure of the borrowers personal identification number used for a bankcard; or

(b) take possession of a bankcard, national identity card or any other official document.

(2) A micro lender shall ensure that evidence of payment is available for a period of 12 months from the end of the loan agreement for every payment made by the borrower in terms of the loan agreement, and the evidence—

(a) may be in the form of a bank order, e-mail, payslip, statement of payment or written receipt; and

(b) shall, on request by the borrower, be given to the borrower or the person paying on behalf of the borrower.

(3) A micro lender shall not collect any amount from the borrower that is in excess of any amount stated in the loan agreement.

(4) A micro lender shall not charge a borrower any fee for early settlement in terms of the agreement unless a reasonable amount is stipulated in the agreement.

(5) Where the repayment system is outsourced, the micro lender shall have a service agreement with the outsourcing entity and shall verify the integrity of the system from time to time.

(6) The micro lender shall provide a copy of any contract or service agreement to be used in the collection of the loan to the Regulatory Authority for review.

15. Duty to provide information to borrower

(1) A micro lender shall, on request by the borrower, at any time, provide the following information—

(a) the date on which the loan agreement was made;

(b) the principal amount, in Pula and the original total cost of credit and monthly cost of credit rate;

(c) the amount already paid in terms of the loan agreement by, or on behalf of the borrower and the date of such payment;

(d) the amount outstanding in terms of the loan agreement and the date upon which it is due and the amount of each instalment;

(e) with respect to arrears, the date upon which instalment became due and the amount of each instalment; and

(f) a copy of the signed loan agreement.

(2) A micro lender may charge a nominal charge to provide the information referred to in subregulation (1).

16. Duty to provide statement of load agreement

A micro lender shall, where the agreement is originally for a period longer than 12 months, provide the borrower with a statement, every six months while the loan agreement is still in force, in the same language as that of the loan agreement, signed by, or on behalf of the micro lender showing the—

(a) date of the statement;

(b) original principal amount;

(d) total amount paid to date;

(e) total amount still to be paid; and

(f) total monthly cost of credit rate of the loan agreement.

PART V
Confidentiality Requirements (regs 17-18)

17. Confidentiality of information

(1) No micro lender, any officer, employee, agent of a micro lender or any person who, by virtue of his or her professional relationship with the micro lender, has access to the records of the micro lender, shall during or after his or her relationship with the micro lender, directly or indirectly disclose any information he or she may acquire in the course of his or her duties, concerning the borrowers transactions, personal, financial or business affairs without the written and freely given consent of the borrower or his or her personal representative.

(2) The provisions of subregulation (1) shall not apply where—

(a) the borrower is declared bankrupt in Botswana and the information is required in bankruptcy proceedings;

(b) the information is required in any legal proceedings;

(c) the information is required by an officer in the employment of the same micro lender in Botswana or by an auditor or a legal representative of the micro lender who requires, and is entitled to know, the in formation in the course of his or her professional duties;

(d) the information is required by another micro lender for the purpose of assessing the credit worthiness of a borrower and is required for assessment purposes only;

(e) the information is required in terms of any other law; or

(f) it is necessary to disclose the information in the public interest as approved by the Regulatory Authority.

18. Forwarding of adverse credit information

(1) Where a micro lender intends to forward any adverse information relating to the borrower to a third party, the micro lender shall, at least 30 calendar days before forwarding the information, notify the borrower, in writing, of such intention except where the adverse credit information is required under regulation 17(2).

(2) The notification referred to in subregulation (1) shall be addressed to the borrowers address set out in the loan agreement, or if the postal system is impractical, any other reasonable and appropriate means shall be used to deliver the notification.

(3) Where the amount owed by the borrower is in dispute, the micro lender shall communicate that fact to the third party concerned, together with the adverse credit information referred to in subregulation (1).

PART VI
General (regs 19-26)

19. Accounts and records of micro lender

(1) Where a micro lender is a natural person, the micro lender shall conduct his or her micro lending business through a bank account that is separate from the micro lenders personal bank account.

(2) A micro lender shall keep all records, in Botswana, as are necessary to exhibit clearly and accurately the state of its affairs and to explain its transactions and financial position so as to enable the Regulatory Authority to determine whether the micro lender concerned has complied with the provisions of these Regulations and any other relevant legislation.

(3) Without prejudice to the generality of subregulation (2), a micro lender shall maintain proper accounting records reflecting full details of all credit advanced, charges raised, repayments received and amounts outstanding.

(4) A micro lender shall keep a signed copy of each loan agreement and the register referred to in regulation 20 for a period of not less than six years.

20. Register

A micro lender shall, in respect of every loan agreement, maintain a register which shall contain the following details—

(a) loan agreement number or other reference to identify the agreement;

(b) name and address of the borrower;

(d) date on which credit was advanced;

(e) amount of each repayment instalment;

(f) number of instalments;

(g) total cost of credit and the total monthly cost of credit rate;

(h) total amount payable in respect of the loan agreement;

(i) penalties and other incidental legal costs which were paid by the borrower; and

(j) statement showing in respect of each repayment—

(i) the amount of repayment made and date on which it was made, and

(ii) the balance outstanding after each repayment.

21. Dispute resolution

(1) A micro lender shall have a clear Dispute Resolution Policy and Procedure approved by the Regulatory Authority, which shall be displayed at a prominent position in each of the micro lenders premises, in accordance with regulation 7.

(2) A micro lender shall ensure that the names and contact details of persons responsible for dispute resolution are clearly displayed on the micro lenders premises.

(3) A complainant shall submit any dispute in writing to the persons responsible for dispute resolution, and every attempt shall be made to resolve the dispute within a reasonable period of time.

(4) A micro lender shall ensure that a record of the dispute indicating—

(a) the loan agreement number;

(b) the date of the dispute;

(d) the outcome of the dispute, indicating whether the complainant was satisfied or not,

is kept for a period for six years.

(5) Where a dispute is not satisfactorily resolved, the micro lender shall ensure that the complainant confirms this in writing, and the micro lender shall notify the Regulatory Authority within 30 calendar days of the unresolved complaint.

22. Credit life insurance

(1) A micro lender may require a borrower to maintain during the term of the loan agreement, credit life insurance which does not exceed, at any time during the term of the loan and the subsistence of the loan agreement, the total of the borrowers outstanding obligations to the micro lender with a declining balance reflecting all loan repayments.

(2) A micro lender shall inform the borrower in writing, prior to committing to the loan, of his or her right to choose the intermediary and insurance company of the borrowers choice.

(3) A micro lender shall not add any surcharge, fee or additional premium above the actual cost of insurance as stipulated by the insurer.

(4) A micro lender shall not act as the insurer of a credit life insurance policy and shall disclose to the borrower any fee, commission, remuneration or benefit received by the micro lender in relation to that insurance.

23. Maximum cost of credit

(1) A micro lender shall not charge an unreasonable maximum total monthly cost of credit rate with regard to a loan agreement and the Regulatory Authority may at any stage of the borrowing and related loan agreement, whether a complaint has been received or not, ask an independent person to investigate and report on the matter to the Regulatory Authority.

(2) The Regulatory Authority may issue operational rules, directives or guidelines stipulating the maximum total monthly cost of credit rate, the maximum annual interest rate and the maximum total cost of credit.

(3) The Regulatory Authority may, where any micro lender fails without reasonable explanation to comply with the operational rules, directives or guidelines issued under subregulation (2), determine any loan agreement entered into by the micro lender as an unfair practice in terms of section 68 of the Act.

24. Corporate governance

A micro lender who is a juristic person shall adhere to the best practices of corporate governance for the size and complexity of its business.

25. Submissions of information to Regulatory Authority

(1) A micro lender shall within five business days, inform to the Regulatory Authority, in writing, where—

(a) the micro lender or any of its branches ceases to operate;

(b) the micro lender becomes unable to discharge any of its debts promptly and in full;

(d) there is a change in the business affairs of the micro lender that has or may have a negative effect on the borrowers.

(2) A micro lender shall, within 90 days of the end of its fiscal year, complete and submit to the Regulatory Authority, a compliance report in Form 6 as set out in the Schedule.

(3) A micro lender who fails to submit any information required under these Regulations may be declared by the Regulatory Authority as not carrying on business with integrity, prudence and professional skill and shall be liable to a civil penalty specified under section 91 of the Act to be imposed by the Regulatory Authority.

26. Periodic and other returns of micro lender

(1) A micro lender shall, within 90 days of the end of its fiscal lender year, lodge with the Regulatory Authority, annual returns in Form 7 as set out in the Schedule.

(2) The Regulatory Authority may, from time to time request a micro lender to lodge any other periodic returns or any other information.

SCHEDULE

Form 1
APPLICATION TO BE LICENSED AS A MICRO LENDER

(reg. 3(2))

Address of applicant: ………………………………………………………………………………………

………………………………………………………………………………………

Date ………………………………………………. 20………

To:
The Chief Executive Officer
Non-Bank Financial Institutions Regulatory Office
Private Bag 00314
Gaborone
Botswana

I/We, the undersigned, do hereby apply for a license in terms of section 43 of the Non-Bank Financial Institutions Regulatory Authority Act (Cap. 46:08) to operate a micro lending business in Botswana.

I/we have taken note of sections 92-95 of the Non-Bank Financial Institutions Regulatory Authority Act regarding the consequences of giving false or misleading statements to the Regulatory Authority or falsely holding out as being licensed.

PART I – APPLICANT AND BUSINESS INFORMATION

1. Name of applicant …………………………………………………………………………………………………………………………

2. Trading name(s) of applicant ……………………………………………………………………………………………………………

Provide all the names if different ……………………………………………………………………………………………………….

3. Legal status of applicant (mark with x) ……………………………………………………………………………………………….

Sole ownership/ Individual	Private company	Public company	Partnership	Other (specify)

I/we take note that Regulatory Authority will not allow Micro Lenders to conduct additional activities parallel to those that the Micro Lender was licensed for without prior notice and approval by the Regulatory Authority. Permission to conduct such activity (ies) will only be granted upon the Regulatory Authority’s physical inspection of the said premises.

4. Official registration number of the above legal status ………………………………………………………………………………..

5. Date of commencement of trading as a Micro Lender (dd/mm/yy) ……………………………………………………………….

6. Financial year end (dd/mm/yy) …………………………………………………………………………………………………………..

7. Income tax registration number ………………………………………………………………………………………………………….

8. VAT registration number (if applicable) …………………………………………………………………………………………………

9. Contact details of the applicant (head office if applicable) ………………………………………………………………………….

Physical address ……………………………………………………………………………………………………………………………

Postal address ………………………………………………………………………………………………………………………………

Landline telephone number ……………………………………………………………………………………………………………….

Fax number …………………………………………………………………………………………………………………………………..

E-mail address ……………………………………………………………………………………………………………………………….

Website ……………………………………………………………………………………………………………………………………….

Note: Similar details to be provided if there are any branches with a different address. Provide on separate sheet of paper.

10 Contact details of principal officer

Title ………………………………………………………………………………………………………………………………………………

Full name(s) ……………………………………………………………………………………………………………………………………

ID number: ……………………………………………………………………………………………………………………………………..

Telephone number (office) …………………………………………………………………………………………………………………..

E-mail address ………………………………………………………………………………………………………………………………..

Note: The principal officer means the person responsible for the daily management of the principal office of the Micro Lender in Botswana. Provide short Curriculum Vitae to show experience.

11. Auditor/Accountant

Note: Refer to Rule 18(6) of the Rules of Business Operation for Micro Lenders to ascertain whether an auditor or accountant should be involved.

Name of firm/person ………………………………………………………………………………………………………………………….

Physical address …………………………………………………………………………………………………………………………….

Postal address …………………………………………………………………………………………………………………………………

Name of responsible person (if a firm) …………………………………………………………………………………………………….

Telephone number …………………………………………………………………………………………………………………………….

Fax number …………………………………………………………………………………………………………………………………….

E-mail address …………………………………………………………………………………………………………………………………

Professional registration number/practice number ……………………………………………………………………………………..

Name of Professional body registered with ………………………………………………………………………………………………

12. Banker

Name of bank …………………………………………………………………………………………………………………………………..

Branch name …………………………………………………………………………………………………………………………………….

Name of holder of main business account for lending business ……………………………………………………………………..

Account number ………………………………………………………………………………………………………………………………..

I/we enclose an original letter from my/our bank confirming the above.

Note: If there is more than one such account due to branches for instance, provide full details.

PART II – CONTROLLER(S) OF THE MICRO LENDER

Note: The definition of a controller is provided in section 4 of the Non-Bank Financial Institutions Regulatory Authority Act.

13. Provide the following in respect of each of the above persons:

First Name(s)	Surname	ID Number	Nationality	Designation (Owners, Directors and Senior Management)	In case of Owners, please provide percentage of ownership

Note: Attach Curriculum Vitae for each controller and indicate any tertiary qualifications, abbreviated employment history and specific contribution to be made in respect of the lending business.

PART III – SALIENT FINANCIAL INFORMATION

14. The following salient financial information is hereby provided:

Description	At Most recent Financial Year End (Pula)	At Date of Application (Pula)
(a) Aggregate value of principal amounts still to be repaid
(b) Aggregate value of all future payments
(c) Less: provisions relating to (b) above (refer note 1)
Net value of loan/debtors book (b) – (c)
Number of contracts
Number of borrowers

Note 1: Provisions are those amounts that will with reasonable probability not be paid.

Note 2: A copy of your most recent set of financial statements, if applicable, must also be provide

PART IV – FUNDING

15. The existing and/or intended sources of funds to be utilised in the business are as follows:

Type of Funding	Approximate Percentage
Own funds
Borrowed funds
Donor funds
Any other

Note: A Micro Lender is not allowed to solicit and/or accept funds (deposits) from the public. If members of the public wish to invest in a Micro Lender, they do so by acquiring a stake in the business either through an equity contribution or the lending of funds.

PART V – DESCRIPTION OF BUSINESS

16. Applicant must provide a description of the business (existing and/or proposed business for next two years) describing the main product(s) including an indication of the total monthly cost of credit rate associated with each product, marketing methods, client focus, geographical spread of business and branches, number of persons to be employed, methods to ensure compliance with statutory responsibilities, administrative procedures and control. (Use separate piece of paper).

17. Describe briefly the system to be used to assess the credit worthiness of a borrower and policy regarding the refusal of an application for a loan.

18. Describe briefly the collection methods and systems to be used.

19. Do you, as the entity doing lending business, engage in any other activity than the lending business hereby applied for? Yes …………….. No…………………

If yes, please provide details

……………………………………………………………………………………………………………………………………………………

20. Which of the following ancillary products does the applicant or its holding company or subsidiary or associate sell, or intends to sell, in conjunction with the lending products applied herewith:

Life insurance …………………………………………………………………………………………………………………………………

Funeral cover ………………………………………………………………………………………………………………………………….

Credit life insurance ………………………………………………………………………………………………………………………..

Short term insurance ……………………………………………………………………………………………………………………….

Other (specify) ………………………………………………………………………………………………………………………………..

Explain the relative importance and volumes of these products in relation to the lending business applied herewith ……………………………………………………………………………………………………………………………………………………

Provide a schematic group structure and indicate whether the entity operates as a principal or intermediary for that specific product

……………………………………………………………………………………………………………………………………………………

PART VI – DECLARATION OF NATURAL PERSONS

This part must be completed and signed by each natural person mentioned in Part II (make additional copies if necessary).

Declaration

I/We, the undersigned, declare that the above information is true and correct to the best of our knowledge and belief and undertake to provide any other information that may be required by the Regulatory Authority.

I /We, the undersigned, declare that none of us, except as indicated hereafter, are disqualified in terms of any of the disqualifications as mentioned in paragraph ………………… of the Rules of Business Operations published in the Government Gazette No…………………………………. dated ……………………………. 20 ……………..

I/We, the undersigned, hereby give permission to the Botswana Police Criminal Record Center to furnish the Regulatory Authority or its authorised agents with my/our previous convictions or any relevant information in their possession, including any directions by the Court for my/our detention in a mental hospital or prison.

I/We hereby indemnify the Botswana police criminal center, its employees, the Regulatory Authority, its agents and its employees and hold them harmless against any claims by myself/ ourselves or any other person that may arise out of or be connected with such disclosure as well as any legal costs, including attorney and client costs.

First Name and Surname	ID Number	Signature	Date

ATTACHMENTS

I/We enclose the following:

1. Non-refundable application fee of P5 000 (Five Thousand Pula)

2. All additional information as to be provided in Application form above;

3. Articles of Association or any document by which the applicant is constituted (if applicable);

4. Certificate of Incorporation from Registrar of Companies (Ministry of Trade and Industry)(if applicable);

5. Copy of a document showing income tax registration number;

6. A copy of any other registration or licensing certificate (if applicable);

7. Copy of latest financial statements of the business (if already conducting lending business).

Yours faithfully

………………………………………………

Authorised signature

GENERAL NOTES:

1. Where an answer or documentation requested above is not known or available it is essential that this be brought to the attention of, and explained to, the Regulatory Authority. Any application not fully completed will be returned to the applicant.

2. Any controller and/or principal officer appointed after the approval of a license must within 30 days of such appointment complete and submit PART II and PART VI of this Form to the Regulatory Authority.

3. Prospective applicants are invited to hold informal discussions with the Regulatory Authority prior to formal application.

4. A prospective applicant need to establish as a company in Botswana, if applicable, before formal application.

Form 2
LICENCE TO CARRY ON A BUSINESS AS MICRO LENDER

(reg. 4(1))

Certificate No. 00000/CM

NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY

REPUBLIC OF BOTSWANA

NON-BANK FINANCIAL INSTITUTIONS REGULATORY ACT

(Cap. 46:08)

MICRO LENDER LICENSE

_________________________

This is to certify that ……………………………………. has been duly licensed by Non-Bank Financial Institutions Regulatory Authority to carry out the business of MICRO LENDING

This licence is not transferable and remains the property of the Non-Bank Financial Institutions Regulatory Authority

Dated this ………………. day of ……………….. 20………………. in Gaborone.

Signed:…………………………………………………..
CHIEF EXECUTIVE OFFICER

Form 3
APPLICATION TO OPEN A BRANCH OFFICE OF A MICRO LENDING BUSINESS

(reg. 4(3))

Address of applicant: ………………………………………………………………………………………

………………………………………………………………………………………

Date ………………………………………………. 20………

To:
The Chief Executive Officer
Non-Bank Financial Institutions Regulatory Office
Private Bag 314
Gaborone
Botswana

I/We, the undersigned, do hereby apply for approval to open a branch in terms of section 43 of the Non-Bank Financial Institutions Regulatory Authority Act to open a micro lending business in Botswana.

I/We have taken note of sections 92-95 of the Non-Bank Financial Institutions Regulatory Authority Act regarding the consequences of giving false or misleading statements to the Regulatory Authority or falsely holding out as being licensed.

PART I – APPLICANTS INFORMATION

1. Name of applicant ……………………………………………………………………………………………………………………………

2. Trading name of this branch of the applicant …………………………………………………………………………………………..

3. License number allocated by the Regulatory Authority …………………………………………………………………………….

4. Legal status of licensed Micro Lender ……………………………………………………………………………………………………

5. Will this branch engage in any other activity than that of the approved license?

If so, please provide details …………………………………………………………………………………………………………………

6. Contact details of the applicant (Head Office)

Physical address ……………………………………………………………………………………………………………………………..

Postal address ………………………………………………………………………………………………………………………………..

Telephone number ……………………………………………………………………………………………………………………………

Fax number ……………………………………………………………………………………………………………………………………

E-mail address ………………………………………………………………………………………………………………………………..

7. Contact details of the applicant (branch office)

Physical address ……………………………………………………………………………………………………………………………..

Postal address ………………………………………………………………………………………………………………………………..

Telephone number ……………………………………………………………………………………………………………………………

Fax number ……………………………………………………………………………………………………………………………………

E-mail address ………………………………………………………………………………………………………………………………..

8. Contact details of responsible person at branch

Title ………………………………………………………………. Name ……………………………………………………………………

Surname ………………………………………………………………………………………………………………………………………..

Telephone number (office) …………………………………………………………………………………………………………………..

E-mail address ………………………………………………………………………………………………………………………………..

9. Products marketed or intended to be marketed in this branch:

Micro lending products (yes /no) ………………………………………………………………………………………………………….

Any other (yes/ no) …………………………………………………………………………………………………………………………..

10. Which of the following ancillary products does the applicant sell, or intends to sell, in conjunction with its lending products from this branch, i.e. as an intermediary?

Life insurance ………………………………………………………………………………………………………………………………….

Funeral cover …………………………………………………………………………………………………………………………………..

Credit life insurance …………………………………………………………………………………………………………………………..

Short term insurance …………………………………………………………………………………………………………………………

Other (specify) …………………………………………………………………………………………………………………………………

Explain shortly the relative importance and volumes of these products in relation to the micro lending products …………………………………………………………………………………………………………………………………………………….

…………………………………………………………………………………………………………………………………………………….

PART II – RESPONSIBLE PERSON OF THE APPLICANT IN THE BRANCH

11. Any new person assuming general management, control and reporting responsibilities for the branch must complete PART II and PART VI of Form No. 1 of this Regulation.

Provide separately.

PART III – DESCRIPTION OF BUSINESS

12. Any changes to the original description of the business as approved should be noted.

I/We confirm that the information contained in this application is accurate and complete. Yours Faithfully:

Applicant: ………………………………………………….. Principal Officer: ………………………………………………….

Date ………………………………………………………….. Date …………………………………………………………………

Name ………………………………………………………… Name ……………………………………………………………….

Capacity ………………………………………………….. Signature ……………………………………………………………

Signature

Note: If this application is completed on behalf of a juristic person, attach proof of authorisation.

ATTACHMENTS

I/We enclose the following:

1. Non-refundable application fee of P1,000 (One Thousand Pula)

2. All additional information as to be provided in the Application form above.

GENERAL NOTES:

Where an answer or documentation requested above is not known or available, it is essential that this be brought to the attention of, and explained to, the Regulatory Authority. Any application not fully completed will be returned to the applicant.

Form 4
CONSENT OF SPOUSE

(reg. 9(3)(b))

I, ………………………………………………………………………………………………………………………………………………

the undersigned, married in community of property to

…………………………………………………………………………………………………………………………………………………

hereby consent to my spouse binding himself/herself to this

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as surety and co-principal debtor for the indebtedness of the Debtor(s) to the Micro Lender.

Consenting Spouse:

Full Name: ………………………………………………………………………………………………………………………………

Identity Number: ………………………………………………………………………………………………………………………

Address: ………………………………………………………………………………………………………………………………..

Signature: ……………………………………………………………………………………………………………………………….

Date: ……………………………………………………………………………………………………………………………………..

Witnesses:

1. Full Name: ………………………………………………………………………………………………………………………………

Address: ………………………………………………………………………………………………………………………………..

Signature: ………………………………………………………………………………………………………………………………

Date: …………………………………………………………………………………………………………………………………….

2. Full Name: ………………………………………………………………………………………………………………………………

Address: ………………………………………………………………………………………………………………………………..

Signature: ………………………………………………………………………………………………………………………………

Date: …………………………………………………………………………………………………………………………………….

Form 5
MINIMUM REQUIREMENTS TO BE INCLUDED IN THE LOAN AGREEMENT

(reg. 11)

Any loan agreement between a lender and a borrower need to comply with the minimum requirements as set out in this sample agreement.

FRONT PAGE

PART A

Particulars about the lender

Name of lender ……………………………………………………………………………………………………………………………..

License number …………………………………………………………………………………………………………………………….

Authorised address ………………………………………………………………………………………………………………………..

Address of branch (if applicable) ………………………………………………………………………………………………………..

Contact number(s) ………………………………………………………………………………………………………………………….

Website (if available) ……………………………………………………………………………………………………………………….

Particulars of the borrower

Name of borrower ……………………………………………………………………………………………………………………………

ID number ……………………………………………………………………………………………………………………………………..

Postal address ……………………………………………………………………………………………………………………………….

Physical address …………………………………………………………………………………………………………………………….

Contact numbers: (home) ………………………………………………………………………………………………………………….

Work ……………………………………………………………………………………………………………………………………………

Mobile ………………………………………………………………………………………………………………………………………….

Any other (where necessary)………………………………………………………………………………………………………………

PART B

Details of the loan …………………………………………………………………………………………………………………………….

Type of loan …………………………………………………………………………………………………………………………………….

Principal amount ……………………………………………………………………………………………………………………………..

Total amount to be repaid …………………………………………………………………………………………………………………..

Number of instalments ……………………………………………………………………………………………………………………….

Amount of each instalment …………………………………………………………………………………………………………………

Date of loan …………………………………………………………………………………………………………………………………….

Date(s) of instalment(s) ………………………………………………………………………………………………………………………

Total cost of credit and total cost of credit rate …………………………………………………………………………………………

FROM SECOND PAGE ONWARDS

1. Undertaking by the borrower to repay the full amount on due date(s).

2. Repayment arrangements (e.g. cash, electronically, deductions from wages or salary by employer or debit order) and applicable authorisations and indemnities.

3. Procedures and cost implications in case of failure of the borrower to adhere to the terms of the agreement. Reasonable penalty fee are to be stipulated and under what circumstances and added to the total amount to be repaid.

4. Confirmation by the borrower that all the required statutory disclosures have been made to the borrower and that the dispute resolution process been explained.

5. Confirmation by the borrower that he or she is in a position, financially and legally, to enter into the agreement.

6. Confirmation by the borrower that he or she has truthfully disclosed all relevant facts regarding his or her own current and expected future financial position.

7. Consent by the borrower that all legal means can be employed by the lender to establish the borrowers credit worthiness.

8. Early repayment conditions and procedures.

9. Whether insurance is taken out on behalf of the borrower and the associated costs.

10. Borrower undertakes to inform lender if any of his or her personal particulars change.

11. Cooling-off arrangements with a minimum of two calendar days.

12. Document to contain the entire agreement.

13. Statement and signature by the borrower that the agreement was explained and all blank spaces were duly filled before the borrower signed the agreement.

14. Any other normal legal clauses can be added.

Form 6
COMPLIANCE REPORT

(reg. 25(2))

For the period from …………………………………………………………………………….. to ………………………………………..

I/We, …………………………………………………………………………………………………………………………………………….. in my/our

capacity as ……………………………………………………………………………. of ……………………………………………………… (name of Micro Lender)

do hereby wish to report as follows:

1. The necessary disclosures as specified in Regulation 7 of the Rules of Business Operation for Micro Lenders (hereafter just referred to as “the Regulation”) as published in Government Gazette No …………………………………… dated ……………………………………………………… is in place.

2. The Micro Lender has complied with Regulation 8 of the Regulation regarding marketing and advertising.

3. The Micro Lender has complied with Regulation 9 subsections (6)(a) and (b) of the Regulations and has not failed to conduct a proper assessment or advanced a loan where it should not have.

4. The Micro Lender has complied with Regulation 10 regarding the provision of a salient features document and Regulation 11(3) and (4) regarding signature, copy and explanation of the agreement to the borrower.

5. The Micro Lender has kept a record of all unresolved disputes and has notified the Regulatory Authority as requested in Regulation 21(5).

6. The Micro Lender abided with the guideline in Rule 23.

7. In general, the Micro Lender has complied with the requirements of the Micro Lending Industry Regulations.

8. In case of non-compliance; the Micro Lender hereby discloses the following areas of non-compliance and the steps taken by the Micro Lender to rectify such non-compliance.

(Please list the areas and provide detailed explanation on separate paper).

Signed on behalf of the board of Directors/Controllers/Members of:

………………………………………………………………………………………………………………………………………………………………………

Date ………………………………………………………………………………………………….

Name ………………………………………………………………………………………………..

Capacity ……………………………………………………………………………………………

Form 7
FINANCIAL AND STATISTICAL ANNUAL RETURN

(reg. 26(1))

Name of licensed Micro Lender: …………………………………………………………………………………………………………..

NBFIRA Licence number: …………………………………………………………………………………………………………………..

Company/Partnership/other registration number: ………………………………………………………………………………………

Reporting period: from ……………………………………………………….. to ………………………………………………………….

Name of person completing this form: ………………………………………………………………………………………………………

Designation: ………………………………………………………………………………………………………………………………..

Contact information: E-mail: ……………………………………………………………………………………………………………

Telephone number: ………………………………………………………………. Mobile: …………………………………………….

PART I – SALIENT INFORMATION

Table 1: Reporting Period Analysis

Description	Current Financial Period	Previous Financial Period
Total Pula value of loans disbursed during the period
Total number of loans disbursed during the period
Total value of loan Book at end of the period
Total number of clients in the book at last day of reporting period
Total number of employees on last day
Total number of agents of period and broker (if any)

Note 1: Value means only the principal amounts.

Table 2: Analysis of original terms of agreements approved during reporting period

Original Term	0-3 months	3-6 months	6-9 months	9-12 months	12-18 months	18-24 months	24 months	Total
Aggregate Value (refer to Note 2)
Number of Agreements

Note 2: Value in tables 2 and 3 means original principal amount. Each renewal or roll over during this period counts as a new agreement and principal amount.

Table 3: Analysis of original principal amounts approved during reporting period

Original principal Amount	0-P300	P301- P500	P501- P1,000	P1,000- P1,500	P1,501- P2,000	P2,001- P3,000	P3,000	Total
Aggregate value (note 2)
Number of Agreements
Average

Loan Book Risk Analysis

Table 4: Age analysis of overdue payments (in Pula)(refer to Note 3)

Current (<<30 days)	31-60 days	61-90 days	91-120 days	120 + days	Total

Note 3: Micro Lender to define “overdue” in terms of its guidelines and payment means total payment that includes principal amount and cost of credit portion.

Table 5: Age analysis of principal amounts involved corresponding to Table 4 (in Pula)

Current (<<30 days)	31-60 days	61-90 days	91-120 days	120 + days	Total

Table 6: Age analysis of number of agreements overdue corresponding to Table 4

Current (<<30 days)	31-60 days	61-90 days	91-120 days	120 + days	Total

Table 7: Indicate fees for following sized transactions

Principal Amount	P300	P500	P800	P1,000	P2,000	P3,000	P5,000	P10,000
(a) Initial fee:



(b) Ongoing service fee



(c) Any other fees, specify:……………….

Table 8: Indicate total monthly cost of credit rate for following transactions

Principal Amount	P300	P500	P1,000	P3,000	P5,000	P10,000
Term:
1 month
3 months
6 months
9 months
12 months
24 months

Table 9: Analysis of repayment methods

Repayment Method	Number of Agreements	Value of payments made during last month of reporting period
Cash
Stop/bank order
Bank Deposit slip
Cheque
Third party collection agent
Bank card
Other (specify)
Mobile pay
Internet pay (electronic transfer)

PART II – FINANCIAL STATEMENTS

INCOME STATEMENT FOR THE PERIOD ENDING

Description	Current Financial Year	Previous Financial Year Income
(a) Gross repayments excluding capital portion in loan repayments
(b) Other income related to loan book (specify)
(c) Commissions and fees from insurance

Gross income from money lending
(d) Other income
Total income

Expenses
(e) Bad debts written off
(f) Interest paid
(g) Change in provision for bad debts
(h) Operational expenses
(i) Other expenses

Total expenses
Net income
Less Tax
Net income after tax

BALANCE SHEET AS AT……………………………………………………………………………………………………………

Description	Current Financial Year	Previous Financial Year Income
Assets
(a) Gross loan debtors (Note 4)
(b) Less: provision for bad debts
(c) Less: other provisions
(d) et loan debtors
(e) Current and other assets
Total assets

Liabilities
(f) Long-term interest bearing liabilities (note 5)
(g) Short-term interest bearing liabilities
(h) Other current liabilities
Total liabilities

Equity
(i) Stated capital
(j) Retained earnings
Total equity

Note 4: Gross loan debtors are the aggregate of all the future gross repayments to be made after the reporting date.

Note 5: Long-term liabilities are those liabilities with an outstanding term more than 12 months, and short- term liabilities are those with an outstanding term 12 months and less, at the reporting date.

DECLARATION BY AUDITOR/ACCOUNTANT

Information contained in Financial and Statistical Return as prescribed in Regulation 8(1) and Form 3 in the Second Schedule of the Micro Lending Industry Regulations.

In terms of Rule 18(6) of the Rules of Business Operation for Micro Lenders:

“The annual return as prescribed in Regulation 8 of the Micro Lending Industry Regulations must be verified for its accurateness by a resident auditor who is a member of a recognised professional body as approved by the Regulatory Authority, in the case where the aggregate of the total cost of credit repaid during the specific reporting period were more than P5,000,000 otherwise by a resident accountant who is a member of the Botswana Institute of Accountants or any other recognised professional body approved by the Regulator”.

Name ……………………………………………………………………………………………………………………….

Professional body (if applicable) ………………………………………………………………………………………

Membership number (if applicable) ……………………………………………………………………………………

Report of the Auditor/Accountant (delete where applicable) regarding the Financial and Statistical
Return ……………………………………………………………………………………………………………………….

of ……………………………………………………………………………………………… (name of Micro Lender)

NBFIRA license number is ………………………………………………………………………………………………..

Declaration A: Accountant (In terms of regulation 7)

1. I/We have reviewed the accompanying Financial and Statistical Return for the year
ended ……………………………………………………………………………………………………………………..

2. Management / owner is responsible for the preparation and fair representation of the figures in this Return in accordance with International Financial Reporting Standards.

3. My/Our responsibility is to express an opinion on the accuracy of these figures. I/We have conducted enough reasonable checks, taking the size and complexity of the business of the Micro Lender into account, to obtain reasonable assurance whether the Return is free from material mis-statement.

4. In my /our opinion, the Return has been properly prepared in accordance with the notes to the Return and is consistent with the records on which these have been based.

…………………………………………………………………..
Signature (Registered Accountant)

Date ……………………………………………………………

Contact number ……………………………………………..

Declaration B: Auditor (In terms of regulation 7)

Report of the auditor regarding the Financial and Statistical Return

of ………………………………………………………………………………………………. (name of Micro Lender).

NBFIRA licence number is ………………………………………………………………………………………………..

1. I/ We have audited the accompanying financial statements which comprise the balance sheet as of ………………………………………………… and the income statement, statement of changes in equity and cash flow statement for the year then ended and a summary of significant accounting policies and other explanatory notes.

2. Management’s responsibility for the financial statements

Management is responsible for the preparation and fair presentation of these financial statements in accordance with International Financial Reporting Standards. This responsibility includes: designing, implementing and maintaining internal controls relevant to the preparation and fair presentation of financial statements that are free from material mis-statement, whether due to fraud or error; selecting and applying appropriate accounting policies; and making accounting estimates that are reasonable in the circumstances.

3. Auditor’s responsibility

Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with International Standards on Auditing. Those Standards require that we comply with ethical requirements and plan and perform the audit to obtain reasonable assurance whether the financial statements are free from material mis-statement.

4. Report on other legal and regulatory requirements

We have also audited the accompanying disclosures required in terms of Form 6 (Part I) of the Regulations. These disclosures are the responsibility of the company’s management. Our responsibility is to express an opinion on the disclosures based on our audit.

5. In our opinion, the accompanying disclosures required in terms of the Form 6 (Part I) of the Regulations have been properly prepared in accordance with the relevant requirements and are consistent with the annual financial statements and the accounting records on which these have been based.

………………………………………………………………………………..
Signature (Registered Accountant)

Date ………………………………………………………………………..

Contact Number ………………………………………………………….

Signature ………………………………………………………………….

NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY (TRIBUNAL) REGULATIONS

(section 50(2) read with section 61)

(8th June, 2018)

ARRANGEMENT OF REGULATIONS

REGULATION

PART I
Preliminary

1. Citation

2. Interpretation

PART II
Establishment, function and composition of Tribunal

3. Establishment and function of Tribunal

4. Composition of Tribunal

5. Appointment of Secretary

6. Disqualification, removal or resignation of member

7. Filling of vacancies

8. Meetings of Tribunal

9. Declaration of interest

10. Confidentiality

11. Remuneration and allowance

PART III
Application for review

12. Application for review and review notice

13. Statement of case

14. Applicant’s reply

15. Withdrawal of application

16. Reviews by Tribunal

PART IV
Procedure of inquiry

17. Notice of hearing

18. Hearings by Tribunal

19. Issue of summons

20. Power to direct proceedings

21. Practice directions

22. Rules of evidence

23. Determination of procedure

24. Extension of time

25. Filing of documents

26. Service of documents

PART V
Determination of application for review

27. Power of Tribunal to make determination

28. Determination of review without hearing

29. Determination of Tribunal by majority decision

30. Power of Tribunal in case of non-compliance

31. Right of appeal

PART VI
Costs of proceedings before Tribunal

32. Order as to costs

33. Costs of Tribunal

34. Practice directions on costs

PART VII
Miscellaneous provisions

35. Report of Tribunal

36. Legal representation

37. Indemnity

38. Rules of Tribunal

39. Offence and penalty

Schedule

S.I. 80, 2018,
S.I. 87, 2022.

PART I
Preliminary

1. Citation

These Regulations may be cited as the Non-Bank Financial Institutions Regulatory Authority (Tribunal) Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires—

“applicant” means a person who, in terms of section 52 of the Act, is aggrieved by a decision of the Regulatory Authority or a self-regulatory organisation;

“chairperson” means a person appointed as the chairperson of the Tribunal under regulation 4(1)(a);

“electronic hearing” means a hearing held by conference telephone or some other form of electronic technology allowing persons to hear one another;

“filing” means the effective delivery of a document to and its receipt by the Tribunal;

“member” means a member of the Tribunal appointed under regulation 4;

“practice direction” means a requirement by the Tribunal to enable the parties to prepare for the hearing of a review and to assist the Tribunal to determine the issues involved;

“review notice” means an application for review of a decision by the Regulatory Authority or the Self-Regulatory Organisation or a notice given by the Tribunal to prepare for a hearing;

“Secretary” means the person appointed as Secretary to the Tribunal under regulation 5(1); and

“Tribunal” means the Non-Bank Financial Institutions Tribunal established under regulation 3.

PART II
Establishment, Function and Composition of Tribunal

3. Establishment and function of Tribunal

(1) Subject to section 50 of the Act, there is hereby established a Tribunal to be known as the Non-Bank Financial Institutions Tribunal.

(2) The Tribunal shall at such times as shall be determined by the Chairperson, upon the giving of not less than 30 days’ notice, review decisions made under the Act by the Regulatory Authority or a self-regulatory organisation, which decisions shall be subject to an application under regulation 12.

(3) The Chairperson may call for a sitting of the Tribunal by giving notice of less than 30 days where the urgency of a particular matter does not permit the giving of notice in accordance with subregulation (2).

4. Composition of Tribunal

(1) The Tribunal shall be composed of the following members appointed by the Minister—

(a) a chairperson, who shall be qualified to be appointed as a judge or a person holding similar legal credentials;

(b) a deputy chairperson, who shall be qualified to be appointed as a judge or a person holding similar legal credentials;

(i) law,

(ii) finance,

(iii) economics,

(iv) accounting,

(v) commerce, or

(vi) equivalent qualification in any area of the non-bank financial sector.

(2) The chairperson and deputy chairperson shall serve the Tribunal for a period not exceeding five years, on such terms and conditions as the Minister may determine and shall be eligible for re-appointment.

(3) A member appointed under subregulation (1)(b) shall be appointed for a term of three years and, shall be eligible for re-appointment for a further term.

(4) The Tribunal may, for purposes of reviewing a matter for which specialised knowledge is required, co-opt not more than two additional persons with specialist qualification and knowledge on the matter, to be members of the Tribunal only with respect to the sittings of the Tribunal convened for the review of such matter.

(5) A member appointed under subregulation (4) shall not count towards the constitution of the quorum and shall not be entitled to vote.

5. Appointment of Secretary

(1) The Tribunal shall, with the approval of the Minister, appoint a Secretary who shall provide secretarial and administrative services to the Tribunal.

(2) The Secretary shall be appointed for a term not exceeding five years and shall be eligible for re-appointment on such terms and conditions as the Tribunal may determine, with the approval of the Minister.

(3) Subject to subregulation (1), the Secretary shall—

(a) attend meetings of the Tribunal but shall have no voting rights;

(b) plan, coordinate and manage the administrative functions of the Tribunal;

(d) register all orders and judgments;

(e) keep records of all proceedings of the Tribunal;

(f) keep an account of all fees and fines paid in or out of the Tribunal; and

(g) assess costs awarded in accordance with the prescribed tariffs.

“/>6. Disqualification, removal or resignation of member

(1) A person shall not be appointed to be a member of the Tribunal if the person—

(a) is a member of the National Assembly, a Councilor in a local authority, member of the Ntlo ya Dikgosi or the holder of an office in a political party;

(b) is an employee, director, secretary or executive officer of a non-bank financial institution;

(c) is convicted of an offence in or outside Botswana for which he or she could have been sentenced to imprisonment without the option of a fine, or an offence involving dishonesty;

(d) is insolvent or is declared bankrupt and has not been rehabilitated;

(e) is disqualified or suspended by a competent authority from practising on the grounds of misconduct;

(f) is disqualified in or outside Botswana from acting as a director or executive officer of a body corporate under a law relating to corporations or to the provisions of financial services;

(g) is an employee or Director of the Regulatory Authority;

(h) was an employee of the Regulatory Authority, and the period between the date of his or her separation from the Regulatory Authority and the date of his or her appointment to serve on the Tribunal is less than two years; or

(i) with the exception of the Chairperson, has held a total number of two terms as a member of Tribunal.

(2) The Minister may terminate a member’s appointment from office where the member—

(a) is absent without reasonable cause from three consecutive meetings of the Tribunal 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) contravenes a provision of these Regulations or otherwise misconducts himself or herself to the detriment of the object of the Tribunal; or

(d) has failed to comply with the provisions of regulations 9 and 10.

(3) The chairperson may resign by giving three months notice in writing to the Minister.

(4) A member appointed under regulation 4(1)(b) may resign by giving one month notice in writing to the Minister.

7. Filling of vacancies

(1) The Minister shall, on being notified by the Tribunal in writing of the death of, or vacation of office by, a member, within 60 days of receiving notification, appoint a member to hold office in accordance with regulation 4.

(2) Subregulation (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 three months.

8. Meetings of Tribunal

Subject to the provisions of these Regulations, the Tribunal shall regulate its own proceedings.

9. Declaration of interest

(1) Each member shall disclose in writing to the Tribunal and to the Minister in the case of the Chairperson, all interests that the member has, that could conflict with the proper performance of the functions of the member’s office, whether the interests were acquired before or after appointment.

(2) A disclosure in terms of subregulation (1) shall be given as soon as practicable after the member becomes aware of the interest.

(3) The Tribunal shall record all disclosures in terms of this regulation.

(4) A member who has an interest that could conflict with the proper performance of the functions of his or her office in relation to a particular matter shall not perform functions in relation to the matter unless—

(a) the member has complied with subregulation (1) in relation to the interest; and

(b) each of the other members have consented to the member performing those functions in relation to the matter despite the potential conflict of interest.

(5) For the purposes of subregulations (1) and (4), it does not matter whether the interest is direct, indirect, pecuniary or non-pecuniary, nor when the interest was acquired.

(6) For the purpose of this regulation, if—

(a) a related party of a member has an interest; and

(b) the member had the interest, and it could conflict with the proper performance of the functions of the member’s office,

the member is taken to have an interest, and this regulation applies accordingly.

(7) In subregulation (6), “related party” means any of the following—

(a) a spouse or immediate family member;

(b) a person in accordance with whose directions, instructions or wishes the member is accustomed to act or is under an obligation, formal or informal, to act;

(c) a person who is accustomed to act, or is under an obligation, whether formal or informal, to act, in accordance with the direction, instructions or wishes of the member;

(d) a company of which the member is a director or executive officer, and a subsidiary of such a company;

(e) a company of which the member, or a spouse or immediate family member, is a director or executive officer;

(f) a company of which the member, or a spouse or relative of the member, is a controller;

(g) a company, if its directors are accustomed to act, or under obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the member; and

(h) if the member and another person are parties to a contract, arrangement or understanding—

(i) to acquire, hold, sell or otherwise deal in securities in concert, or

(ii) to exercise voting rights in a specified company in concert with, the other party to the contract, arrangement or understanding.

(8) Where a member fails to disclose his or her interest in accordance with subregulation (1) and a decision by the Tribunal is made benefiting such member, such decision shall be void.

(9) …

10. Confidentiality

(1) A member and any other person assisting the Tribunal shall observe and preserve the confidentiality of all matters coming before the Tribunal, and such confidentiality shall subsist even after the termination of their terms of office or their mandates.

(2) Any member or any person to whom confidential information is revealed through working with the Tribunal 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) …

11. Remuneration and allowance

A member shall be paid, out of the funds of the Tribunal, such remuneration and allowance, if any, as the Minister may from time to time determine.

PART III
Application for review

12. Application for review and review notice

(1) An application for review of a decision of the Regulatory Authority or a self-regulatory organisation, shall be made in Form 1 set out in the Schedule and shall be accompanied by a non-refundable fee of P500.

(2) An applicant shall lodge a review notice within 28 days from the date on which the decision of the Regulatory Authority or self-regulatory organisation is received by the applicant.

(3) The review notice under subregulation (2) shall state—

(a) the name and address of the applicant;

(b) the name and address of applicant’s representative; and

(c) the issues concerning the decision of the Regulatory Authority or the self-regulatory organisation that the applicant wishes the Tribunal to consider.

(4) The applicant shall attach to the review notice, a copy of the decision of Regulatory Authority or a self-regulatory organisation to which the review notice relates, and shall send a copy of the review notice to the Regulatory Authority or self-regulatory organisation.

(5) Upon receiving a review notice, the Secretary shall—

(a) enter particulars of the review notice in a register kept for that purpose; and

(b) inform the parties in writing—

(i) that the review notice has been lodged,

(ii) of the date when the review notice was lodged with the Tribunal, and

(iii) of the Tribunal’s decision on any application made for directions.

13. Statement of case

(1) The Regulatory Authority, or a self-regulatory organisation shall file a statement of case in support of the decision referred to in the application for review not later than 28 days after the date on which the Regulatory Authority or self-regulatory organisation received the information sent by the Secretary under subregulation 12(5).

(2) The statement of case shall be in Form 2, set out in the Schedule, and it shall—

(a) specify the provisions providing for the Regulatory Authority or self-regulatory organisation’s decision referred to in the application;

(b) specify the reasons for the decision;

(c) set out all the matters and facts upon which the Regulatory Authority or self-regulatory organisation relied to support its decision; and

(d) specify the date on which the statement of case is filed.

(3) The statement of the case shall be accompanied by a list of—

(a) the documents on which the Regulatory Authority or self-regulatory organisation relies in support of the decision; and

(b) any additional documents and material which, in the opinion of the Regulatory Authority or self-regulatory organisation, would further assist the Tribunal.

(4) The Regulatory Authority or self-regulatory organisation shall send the applicant a copy of the statement of case, the documents and material in the list under subregulation (3) at the same time that it files the statement of case.

14. Applicant’s reply

(1) An applicant shall file a written reply to the Tribunal in Form 3 as set out in the Schedule not later than 28 days after—

(a) the date on which the applicant has received a copy of the Regulatory Authority or a self-regulatory organisation’s statement of case; or

(b) the date on which the applicant has received a copy of the amended statement of case from the Regulatory Authority or self-regulatory organisation.

(2) The reply shall—

(a) state the grounds on which the applicant relied;

(b) set out all matters contained in the statement of case which are disputed by the applicant;

(d) specify the date on which the reply is filed.

(3) The reply shall be accompanied by all documents on which the applicant relied in support of its case.

(4) The applicant shall send to the Regulatory Authority or self-regulatory organisation a copy of the reply at the same time as it was sent to the Tribunal.

15. Withdrawal of application

(1) An applicant may withdraw a review notice—

(a) any time before the hearing of the review, by filing a notice to withdraw; or

(b) at the hearing of the review, with the Tribunal’s permission.

(2) The Regulatory Authority or self-regulatory organisation may state that it does not oppose the review or it may withdraw its decision to oppose the review—

(a) at any time before the hearing of the review, without permission, by filing a notice to that effect; or

(b) at the hearing of the review, with the Tribunal’s permission.

(3) The Tribunal may determine the review by the holding of a hearing under regulation 18 where—

(a) the Regulatory Authority or self-regulatory organisation makes a statement as provided for under subregulation (2)(a);

(b) the Regulatory Authority or self-regulatory organisation does not file a statement of case within the time limit imposed by regulation 13(1), or extension in accordance with regulation 24; or

(c) the applicant does not file a reply within any time limit as provided in regulation 15(1), or file a request for an extension in accordance with regulation 24.

16. Reviews by Tribunal

(1) The Tribunal may, for specified purposes related to the effective regulation of non-bank financial institutions, cause a review to be conducted regarding any decision of the Regulatory Authority or self-regulatory organisation.

(2) The Tribunal shall review a decision of the Regulatory Authority or self-regulatory organisation in terms of subregulation (1) by issuing—

(a) a review notice to review the decision within a period of 60 days of the making of the decision by the Regulatory Authority or self-regulatory organisation;

(b) practice directions for purposes of such review within a period of 90 days of the making of the decision by the Regulatory Authority or self-regulatory organisation; and

PART IV
Procedure of inquiry

17. Notice of hearing

(1) The Tribunal shall provide, or direct the giving of, a written notice of hearing, as set out in Form 4 of the Schedule, to the parties and other persons as the Tribunal may determine or require.

(2) A notice of hearing shall include—

(a) a reference to the law under which the hearing is being held;

(b) a statement of the dates, time and the purpose of the hearing;

(c) a statement that if a party does not attend or participate at the hearing, the Tribunal may proceed in the party’s absence and the party will not be entitled to any further notice in the proceeding; and

(d) any other information that the Tribunal considers necessary for the proper conduct of the hearing.

18. Hearings by Tribunal

(1) The Tribunal may hold hearings in public, unless otherwise determined by the Tribunal.

(2) The Tribunal shall set the hearing dates and determine its own procedure for the hearing, and the location of hearing.

19. Issue of summons

(1) The Tribunal may, by summons set out in Forms 5(a) and 5(b) of the Schedule, require any person to—

(a) attend, at such time and place as is specified in the summons, to give evidence as a witness;

(b) file, within the time specified in the summons, any document in his or her custody or under his or her control which the Tribunal considers necessary to examine; or

(2) A witness summons shall be sent so as to be received by the person to whom it is addressed not less than 14 days before the time specified in the summons.

(3) The Tribunal may, upon the application of the person to whom the witness summons is addressed, direct that the witness summons be set aside or varied.

20. Power to direct proceedings

(1) For the purposes of reviewing a decision, the Tribunal may—

(a) require a person appearing, before the Tribunal to give evidence either on oath, affirmation or declaration, and the Tribunal shall administer such oath, affirmation or declaration;

(b) proceed in the absence of a party who, by notice, has been given a reasonable period to attend the proceedings; or

(2) The Tribunal may direct that any question of fact or law which appears to be in issue in relation to the review should be determined at a preliminary hearing.

(3) If, in the opinion of the Tribunal, the determination of that question substantially disposes of the review, the Tribunal may treat the preliminary hearing as the hearing of the review and may make such order by way of disposing of the review as it deems fit.

(4) Subject to regulation 18, if the parties so agree in writing, the Tribunal may determine the question without an oral hearing, but, in any such case, the Tribunal may not at the same time dispose of the review unless the parties have agreed in writing that it may do so.

21. Practice directions

(1) The Tribunal may at any time give practice directions to—

(a) enable the parties to prepare for the hearing of a review;

(b) assist the Tribunal to determine the issues at a review; and

(2) An application for practice directions shall include the reasons in support of that application.

(3) If any party objects to the practice directions applied for, the Tribunal shall consider the objection and, if it considers it necessary for the determination of the application, the Tribunal shall give the parties an opportunity to make representations.

(4) A person to whom a practice direction is given under these Regulations may apply to the Tribunal showing good cause why it should be varied or set aside, but the Tribunal shall not grant such application without first notifying any person who applied for the direction and giving that party an opportunity to make representations.

(5) Practice directions given by the Tribunal may—

(a) fix the time and place of the hearing of the review and alter any time and place so fixed;

(b) provide for an oral hearing, upon such notice as the Tribunal may determine, in connection with any matter arising under the review;

(d) suspend the effect of a Regulatory Authority or self-regulatory organisation decision until the review has been finally disposed of, or until any appeal against the Tribunal’s determination of the review has been finally disposed of, or both, upon application for such suspension by any party;

(e) permit or require any party to provide further information or supplementary statements or to amend a replying document or a supplementary statement;

(f) require any party to file any document that the Tribunal considers is or may be relevant to the determination of the review and to copy the document or make it available to any party that the Tribunal considers necessary;

(g) require any party to file—

(i) a list of witnesses that are to give evidence at the hearing of the review on behalf of the party, and

(ii) statements of the evidence which those witnesses intend to give, if called;

(h) make provisions as to any expert witnesses to be called including the number of such witnesses and the evidence to be given by them;

(i) provide for the manner in which any evidence may be given; and

(j) provide for such other matters as may be deemed necessary by the Chairperson, for the effective conduct of the hearing of the review.

22. Rules of evidence

The Tribunal shall not be bound by the rules of evidence but may remain guided by them on any matter as it considers appropriate in the circumstances.

23. Determination of procedure

(1) The Tribunal may, where the procedure set out under these Regulations is found after due consideration not appropriate for the hearing or other consideration of any particular matter, determine the procedure to apply to that matter, in accordance with the requirements for procedural fairness.

(2) A defect in form or other technical breach in a proceeding will not cause the proceeding or the step, document or order in the proceeding to be invalid.

24. Extension of time

(1) Where a party cannot meet a time limit prescribed by these Regulations, the party shall not less than three days before the deadline file a request to the Tribunal for an extension of time, accompanied by the reasons in support of the request.

(2) The number of extensions that a party may be granted under subregulation (1) shall not exceed three.

(3) The Tribunal may, before or after the expiration of a prescribed time limit, extend the time on such terms as it considers appropriate.

25. Filing of documents

(1) All documents shall be filed in five copies and shall be legible and written in either English or Setswana, unless the Tribunal otherwise directs.

(2) The Tribunal may subject to such conditions as may be appropriate, direct that a document be filed by—

(a) hand delivery;

(b) courier service;

(d) facsimile;

(e) electronic transmission; or

(f) any other means.

26. Service of documents

(1) The Tribunal may subject to such conditions as may be appropriate, direct that service of documents be made by—

(a) hand delivery;

(b) courier service;

(d) facsimile;

(e) electronic transmission; or

(f) any other means.

(2) Where documents are filed by facsimile or other electronic transmission, the original copies shall be delivered by noon on the next business day unless the Chairperson otherwise directs.

PART V
Determination of application for review

27. Power of Tribunal to make determination

The Tribunal may, on hearing an application for review made under regulation 12—

(a) confirm, amend or revoke a decision made by the Regulatory Authority or a self-regulatory organisation;

(b) return the matter to the Regulatory Authority or the self-regulatory organisation for consideration in accordance with any directions; or

28. Determination of review without hearing

The Tribunal may determine the application for review without an oral hearing if—

(a) the parties agree to this in writing;

(b) the Tribunal approves subject to regulation 16; or

29. Determination of Tribunal by majority decision

(1) An application for review before the Tribunal shall be determined by the decision of any two members including the Chairperson of the Tribunal.

(2) Any determination of the Tribunal shall be in writing and shall include the reasons for the determination, a statement of its findings on material questions of fact and a reference to the evidence or other material on which the findings are based.

(3) The Tribunal shall cause its determination to be served on each party to the proceedings.

(4) Unless specified otherwise, a determination of the Tribunal shall come into operation on the date of the determination.

(5) Any determination of the Tribunal shall be published in such form and manner as the Tribunal deems fit, except that the names of the parties and any information which the Tribunal considers to be sensitive shall be omitted.

30. Power of Tribunal in case of non-compliance

(1) The Tribunal may take the steps set out in subregulation (2) where a party has, without reasonable excuse, failed to—

(a) comply with a direction given under these Regulations; or

(b) comply with a provision of these Regulations.

(2) The Tribunal may take any one or more of the following steps in respect of a party’s failure referred to in subregulation (1)—

(a) make costs order under Part VI of these Regulations against that party;

(b) where that party is the applicant, dismiss the whole or part of the review and direct the party as to any action to be taken by the party; or

(c) where that party is the Regulatory Authority or self-regulatory organisation, strike out the whole or part of the statement of case and, where appropriate direct the Regulatory Authority or self-regulatory organisation to be debarred from contesting the review.

(3) The Tribunal shall not take any of the steps in subregulation (2) in respect of a party, unless it has given that party notice of the steps and an opportunity for the party to make representations.

(4) Any person who fails to comply with steps taken under subregulation (2) commits an offence and shall be liable to penalties provided under regulation 39.

(5) Non-compliance with the provisions of any rule of practice for the time being in force or of any of these Regulations shall not render the proceedings of the Tribunal void.

31. Right of appeal

Any person who is dissatisfied with the decision of the Tribunal may, within 28 days of receipt of the decision, appeal to the High Court for judicial review.

PART VI
Costs of proceedings before Tribunal

32. Order as to costs

(1) The Tribunal may, after considering submissions from a party for an award of costs, order the costs of a party be paid by another party.

(2) The Tribunal may, in its discretion, order costs—

(a) in a fixed amount;

(b) to be assessed according to a specified tariff of costs; or

(3) The Tribunal shall, when determining whether a party is liable to pay the costs of another party, or of the Tribunal as provided under regulation 33, consider—

(a) whether the party is engaged in conduct which is clearly unreasonable;

(b) whether the party’s conduct unreasonably delayed or prolonged the proceedings, including failure to comply with any undertakings or directions;

(d) the failure by a party to co-operate with other parties during preliminary proceedings or at the hearing;

(e) the failure by a party to attend a hearing or other proceedings, or to send a representative, despite notices being provided;

(f) the party’s degree of success in the proceedings; and

(g) any other matter it considers relevant.

33. Costs of Tribunal

(1) The Tribunal may, either in addition to costs it may award under regulation 32 or without such an award, make an order as to costs of the Tribunal against any one or all of the parties to the review.

(2) The costs of the Tribunal shall consist of the expenses that the Tribunal has incurred in connection with the proceedings of the review.

(3) Where the Tribunal directs that its costs be paid, the Tribunal shall—

(a) fix the costs of the Tribunal; and

(b) indicate by whom the costs shall be paid and in what proportion.

34. Practice directions on costs

The Tribunal may issue any practice directions on costs from time to time, to address general assessment policies and tariffs, hourly rates for representatives, allowable disbursements, and other matters that the Tribunal may consider appropriate.

PART VII
Miscellaneous provisions

35. Report of Tribunal

(1) The Tribunal shall make an annual report within six months of the end of the financial year on the discharge of its functions to the Minister and may at any time report to the Minister any matter relating to the functions of the Tribunal.

(2) If it appears to the Minister, after consultation with the Tribunal, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Tribunal, the Minister may exclude that matter from a copy of the report.

36. Legal representation

(1) A party to the proceedings before the Tribunal may be represented by an attorney or a representative duly authorised by the party, who shall be allowed reasonable opportunity to present the case and in particular, to inspect documents which the Tribunal proposes to consider in determining the case.

(2) The Tribunal may at its discretion, refuse to permit a particular person to assist or represent a party at the hearing and in such instances the Tribunal shall disclose the reasons for its refusal.

37. Indemnity

No matter or thing done or omitted to be done by a member or staff of the Tribunal shall, if the matter or thing is done or omitted to be done in good faith in the course of the performance of the functions of the Tribunal, render that member or staff liable to an action, claim or demand.

38. Rules of Tribunal

For the better carrying out of the provisions of these Regulations, the Tribunal may make rules with respect to matters related to—

(a) applications for reviews;

(b) statements of case in support of a decision of the Regulatory Authority or self-regulatory organisation;

(d) …;

(e) the giving of evidence;

(f) witnesses and summoning of witnesses;

(g) fees payable with respect to the lodgement or filing of documents; and

(h) such other matters as the Tribunal shall consider necessary to facilitate its proceedings.

39. Offence and penalty

(1) Any person who contravenes the provisions of these Regulations commits an offence and is liable to a fine not exceeding P 5000 or to imprisonment for a period not exceeding six months, or to both.

(2) Any person who, for purposes of any matter before the Tribunal, knowingly hinders or prevents compliance with a direction, order or requirement given under these Regulations, commits an offence and shall be liable to penalties specified under section 60 of the Act.

SCHEDULE

FORMS

FORM 1

NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT)

REVIEW NOTICE

(reg 12)

TO APPEAL A DECISION OR ORDER OF THE NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY OR SELF-REGULATORY ORGANISATION, A PERSON MUST COMPLETE AND FILE THIS FORM WITH THE SECRETARY, NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT), PRIVATE BAG RWK 11, GABORONE, PLOT 50365, MVA FUND HOUSE, FAIRGROUNDS OFFICE PARK.

APPLICANT’S NAME & ADDRESS

MR. MRS. MS.

LAST NAME …………………………………………………………………………………………………….

FIRST NAME ……………………………………………………………………………………………………

NAME OF COMPANY/ORGANISATION …………………………………………………………………

STREET ADDRESS …………………………………………………………………………………………..

PHONE NO. ……………………………………………………………………………………………………..

FAX NO. ………………………………………………………………………………………………………….

EMAIL ……………………………………………………………………………………………………………

APPLICANT’S REPRESENTATIVE (IF ANY)

MR. MRS. MS.

LAST NAME ……………………………………………………………………………………………………….

FIRST NAME ………………………………………………………………………………………………………

NAME OF COMPANY/ORGANISATION …………………………………………………………………….

STREET ADDRESS ……………………………………………………………………………………………..

CITY ………………………………………………………………………………………………………………..

PHONE NO. ……………………………………………………………………………………………………….

FAX NO. ……………………………………………………………………………………………………………

EMAIL ……………………………………………………………………………………………………………..

SECTION AND STATUTE

SECTION AND STATUTE UNDER WHICH THE HEARING IS BROUGHT

………………………………………………………………………………………………………………………..

REGULATORY AUTHORITY’S DECISION OR ORDER

ADDITIONAL SHEETS ATTACHED

………………………………………………………………………………………………………………………..

…………………………………………………………………………………….
DATE OF DECISION OR ORDER OF THE REGULATORY AUTHORITY

RELIEF SOUGHT

ORDER OF RELIEF SOUGHT

………………………………………………………………………………………………………………………..

PARTIES BEFORE THE NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL

………………………………………………………………………………………………………………………..

ADDITIONAL SHEETS ATTACHED

OTHER PERSONS WHO MAY HAVE INTEREST IN THE MATTER

………………………………………………………………………………………………………………………..

DOCUMENTS

I AM RELYING ON THE FOLLOWING DOCUMENTS FOR REFERENCE

………………………………………………………………………………………………………………………..

NAME (PLEASE PRINT) TITLE

………………………………………………………………………………………………………………………..

APPLICANT REPRESENTATIVE DATE

………………………………………………………………………………………………………………………..

SIGNATURE ……………………………………………………………………………………………………..

FORM 2

NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT)

STATEMENT OF CASE

(reg 13)

THE NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY OR SELF-REGULATORY ORGANISATION, SEEKING TO RESPOND TO A REVIEW NOTICE LODGED SHALL COMPLETE AND FILE THIS FORM WITH THE SECRETARY, NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT), PRIVATE BAG RWK 11, GABORONE, PLOT 50365, MVA FUND HOUSE, FAIRGROUNUS OFFICE PARK.

APPLICANT’S NAME & ADDRESS

MR. MRS. MS.

LAST NAME ……………………………………………………………………………………………………..

FIRST NAME …………………………………………………………………………………………………….

NAME OF COMPANY/ORGANISATION …………………………………………………………………..

……………………………………………………………………………………………………………………..

STREET ADDRESS & CITY ………………………………………………………………………………….

………………………………………………………………………………………………………………………

APPLICANT’S REPRESENTATIVES

………………………………………………………………………………………………………………………

RESPONDENT (TICK THE APPROPRIATE BOX)

NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY

SELF-REGULATORY ORGANISATION

NAME OF SELF-REGULATORY ORGANISATION (IF APPLICABLE)

……………………………………………………………………………………………………………………..

RESPONDENT’S REPRESENTATIVE (IF ANY)

MR. MRS. MS.

LAST NAME ………………………………………………………………………………………………………

FIRST NAME ……………………………………………………………………………………………………..

NAME OF COMPANY/ORGANISATION ……………………………………………………………………

………………………………………………………………………………………………………………………

STREET ADDRESS …………………………………………………………………………………………….

CITY ……………………………………………………………………………………………………………….

PHONE NO. ………………………………………………………………………………………………………

FAX NO. ……………………………………………………………………………………………………………

EMAIL ………………………………………………………………………………………………………………

OTHER PERSONS WHO MAY HAVE INTEREST IN THE MATTER

BRIEF OF THE FACTS: ………………………………………………………………………………………

………………………………………………………………………………………………………………………

………………………………………………………………………. (ADDITIONAL SHEETS ATTACHED)

DECISION REACHED BY THE REGULATORY AUTHORITY OR SELF-REGULATORY ORGANISATION:

………………………………………………………………………………………………………………………

……………………………………………………………………….. (ADDITIONAL SHEETS ATTACHED)

REASON(S) FOR THE DECISION:

………………………………………………………………………………………………………………………

……………………………………………………………………….. (ADDITIONAL SHEETS ATTACHED)

STATUTE(S) AND SECTION(S) RELIED UPON TO REACH DECISION:

………………………………………………………………………………………………………………………

RELIEF SOUGHT

ORDER OF RELIEF SOUGHT

………………………………………………………………………………………………………………………

DOCUMENTS

THE FOLLOWING DOCUMENTS ARE ATTACHED FOR REFERENCE PURPOSES

DATED AT GABORONE ON THIS ……………………………………… DAY OF ………………….. 20…..

SIGNATURE ………………………………………………

FORM 3

NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT)

APPLICANT’S REPLY

(reg 14)

AN APPLICANT SHALL FILE A WRITTEN REPLY TO THE TRIBUNAL BY COMPLETING AND FILING THIS FORM WITH THE SECRETARY, NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT), PRIVATE BAG RWK 11, GABORONE, PLOT 50365, MVA FUND HOUSE, FAIRGROUNDS OFFICE PARK.

APPLICANT’S NAME & ADDRESS

MR. MRS. MS.

LAST NAME ……………………………………………………………………………………………………..

FIRST NAME ……………………………………………………………………………………………………

NAME OF COMPANY/ORGANISATION ………………………………………………………………..

………………………………………………………………………………………………………………………

STREET ADDRESS & CITY ……………………………………………………………………………….

………………………………………………………………………………………………………………………

APPLICANT’S REPRESENTATIVES

………………………………………………………………………………………………………………………

………………………………….

APPLICANT’S REPRESENTATIVE (IF ANY)

MR. MRS. MS.

LAST NAME ……………………………………………………………………………………………………..

FIRST NAME …………………………………………………………………………………………………….

NAME OF COMPANY/ORGANISATION ……………………………………………………………………

STREET ADDRESS …………………………………………………………………………………………….

CITY ……………………………………………………………………………………………………………….

PHONE NO. ………………………………………………………………………………………………………

FAX NO. ……………………………………………………………………………………………………………

EMAIL ………………………………………………………………………………………………………………

OTHER PERSONS WHO MAY HAVE INTEREST IN THE MATTER

………………………………………………………………………………………………………………………….

BRIEFLY STATE THE GROUNDS ON WHICH THE APPLICATION FOR REVIEW
RELIED ON AND ATTACH THE NECESSARY DOCUMENTATION:

……………………………………………………………………………………………………………………..

SET OUT ALL MATTERS CONTAINED IN THE STATEMENT OF CASE WHICH ARE DISPUTED:

……………………………………………………………………………………………………………………..

STATE THE REASONS FOR DISPUTING THE DECISION:

……………………………………………………………………………………………………………………..

RELIEF SOUGHT

ORDER OF RELIEF SOUGHT

……………………………………………………………………………………………………………………..

DATED AT GABORONE ON THIS DAY OF ………………………. 20…………………….

SIGNATURE ………………………………..

FORM 4

NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT) NOTICE OF HEARING

(reg 17)

PARTICULARS OF PARTIES

APPLICANT(S) ……………………………………………………………………………………………………..

…………………………………………………………………………………………………………………………

RESPONDENT(S) ……………………………………………………………………………………………….

…………………………………………………………………………………………………………………………

PLEASE NOTE THAT A HEARING IN TERMS OF SECTION/REGULATION ………………………….. OF THE ………………………………………………………………………… ACT/REGULATIONS SHALL BE HELD BEFORE THE NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL ON THE ……………………….. DAY OF ………………………………….. 20 ………….. AT …………….. HOURS OR SOON THEREAFTER AS MAY BE HEARD FOR THE PURPOSES OF ………………………………
…………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………
……………………………………

DOCUMENTS

THE FOLLOWING DOCUMENTS ARE ATTACHED FOR REFERENCE PURPOSES

WHERE A RELEVANT CITED PARTY DOES NOT ATTEND OR PARTICIPATE AT THE HEARING, THE TRIBUNAL MAY PROCEED IN THE PARTY’S ABSENCE AND THE PARTY WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDING.

DATED AT GABORONE ON THIS ………………………… DAY OE …………………. 20……….

SIGNATURE ……………………………………………..

FORM 5(a)

NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT)

SUMMONS TO A WITNESS

(reg 19)

REGARDING

AND

SUMMONS TO A WITNESS BEFORE THE NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT)

TO:

(NAME) ……………………………………………………………………………………………………………

(ADDRESS) ……………………………………………………………………………………………………..

YOU ARE REQUIRED TO ATTEND AND TO GIVE EVIDENCE AT THE HEARING OF THIS PROCEEDING ON ………………………………………………………………………………………….. AT ……………………….. HOURS AT …………………………………………………………………………
……………………………………………………………………………………………………………………

AND TO REMAIN UNTIL YOUR ATTENDANCE IS NO LONGER REQUIRED.

YOU ARE REQUIRED TO ATTEND AND TO BRING WITH YOU AND PRODUCE AT THE HEARING THE FOLLOWING DOCUMENTS AND THINGS: ALL BOOKS, PAPERS, LETTERS, NOTES OR COPIES THEREOF AND ANY OTHER WRITINGS AND DOCUMENTS IN YOUR POSSESSION OR POWER CONTAINING ANY ENTRY, MEMORANDUM OR MINUTES RELATING TO THIS MATTER (WHETHER THEY ARE ELECTRONIC FORMAT OR HARD COPY).

……………………………………………………………………………………………………………………..

…………………………………………

IF YOU FAIL TO ATTEND OR TO REMAIN IN ATTENDANCE AS THIS SUMMONS REQUIRES, YOU SHALL HAVE COMMITTED AN OFFENCE UNDER THE NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY (TRIBUNAL) REGULATIONS AND SHALL BE CHARGED WITH AN OFFENCE UNDER THE REGULATIONS.

DATED AT GABORONE ON THIS …………………………… DAY OF ………………… 20……………

SIGNATURE ………………………………………………………………………

ON BEHALF OF THE NON BANK FINANCIAL INSTITUTIONS TRIBUNAL

FORM 5(b)

NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT)

SUMMONS TO A WITNESS

(reg 19)

REGARDING

AND

SUMMONS TO A WITNESS BEFORE THE NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL (NBFIT)

TO:

(NAME) ……………………………………………………………………………………………………………

(ADDRESS) ……………………………………………………………………………………………………..

YOU ARE REQUIRED TO PARTICIPATE IN A HEARING

ON ……………. AT ………………………………………………………………………………………… (HOURS

AT …………………………………………………………………………………………………………………………

IF YOU FAIL TO PARTICIPATE IN THE HEARING IN ACCORDANCE WITH THE SUMMONS, YOU SHALL HAVE COMMUTED AN OFFENCE UNDER THE NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY (TRIBUNAL) REGULATIONS AND SHALL BE CHARGED WITH AN OFFENCE UNDER THE REGULATIONS.

DATED AT GABORONE ON THIS …………………………….. DAY OF ………………. 20…………..

SIGNATURE ON BEHALF OF THE NON-BANK FINANCIAL INSTITUTIONS TRIBUNAL

…………………………………………………………

NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY (DECLARATION OF BOTSWANA STOCK EXCHANGE LIMITED AS SELF-REGULATORY ORGANISATION) ORDER

(section 36(1))

(13th March, 2020)

ARRANGEMENT OF PARAGRAPHS

PARAGRAPH

1. Citation

2. Declaration of self-regulatory organisation

S.I. 26, 2020.

1. Citation

This Order may be cited as the Non-Bank Financial Institutions Regulatory Authority (Declaration of Botswana Stock Exchange Limited as Self-Regulatory Organisation) Order.

2. Declaration of self-regulatory organisation

Botswana Stock Exchange Limited, a company—

(a) registered under the Companies Act and holding Company Certificate Number CO 2018/14914;

(b) licensed under the Non-Bank Financial Institutions Regulatory Authority Act, and section 3(4) of Botswana Stock Exchange (Transition) Act, and holding Licence Number NBFIRA 8/1/1; and

(c) having concluded, in terms of section 36(2) of the Non-Bank Financial Institutions Regulatory Authority Act (Cap. 56:11), a Memorandum of Agreement with the Non-Bank Financial Institutions Regulatory Authority dated 9th October, 2019,

is hereby declared a self-regulatory organisation.

NON-BANK FINANCIAL INSTITUTIONS REGULATORY AUTHORITY (SUPERVISORY LEVIES) REGULATIONS

(section 24 read with section 61(2)(a))

(16th June, 2023)

ARRANGEMENT OF REGULATIONS

REGULATION

1. Citation

2. Supervisory levies

3. Basis of calculation of supervisory levies

4. Collection of supervisory levies

5. Interest on unpaid supervisory levies

6. Penalty levy

7. Revocation of S.I. No. 52 of 2022

SCHEDULE

S.I. 11, 2012,
S.I. 42, 2013,
S.I. 119, 2013,
S.I. 47, 2014,
S.I. 57, 2015,
S.I. 34, 2016,
S.I. 52, 2017,
S.I. 48, 2018,
S.I. 32, 2019,
S.I. 54, 2020,
S.I. 60, 2021,
S.I. 52, 2022,
S.I. 65, 2023.

1. Citation

These Regulations may be cited as the Non-Bank Financial Institutions Regulatory Authority (Supervisory Levies) Regulations.

2. Supervisory levies

A non-bank financial institution specified in the first column of the Schedule shall, in each financial year, pay the supervisory levies set out in the second column of the Schedule.

3. Basis of calculation of supervisory levies

The basis of calculation of supervisory levies for each financial year shall be the recovery of operational costs associated with carrying out supervisory activities in relation to a non-bank financial institution.

4. Collection of supervisory levies

A non-bank financial institution shall pay the supervisory levies set out in the second column of the Schedule to the Regulatory Authority in two equal instalments—

(a) on or before 30th April of each financial year; and

(b) on or before 31st October of each financial year.

5. Interest on unpaid supervisory levies

(1) A non-bank financial institution shall pay interest on any unpaid supervisory levies to the Regulatory Authority at the end of each financial year.

(2) Any interest paid under subregulation (1) shall be at a rate equal to the prevailing prime interest rate.

6. Penalty levy

(1) The Regulatory Authority shall impose a penalty levy on a non-bank financial institution where a mis-statement or other non-compliance by the non-bank financial institution leads to an under-collection of a supervisory levy.

(2) Any penalty imposed under subregulation (1) shall be at a rate equal to the prevailing prime interest per thousand Pula of the under-collection.

7. Revocation of S.I. No. 52 of 2022

The Non-Bank Financial Institutions Regulatory Authority (Supervisory Levies) Regulations, are hereby revoked.

SCHEDULE
SUPERVISORY LEVIES

(reg 2)

	First Column Non-Bank Financial Institution	Second Column Supervisory Levy
1.	Asset Managers (excluding International Financial Services Centre asset managers)	P38 526 and 0.0242% per annum of the total values of the investments managed by an asset manager at the end of each month of the financial year
2.	Central Securities Depositories	P210 105
3.	Securities Exchanges	P210 105
4.	Custodians of Collective Investment Undertaking	P77 045
5.	Insurance Brokers	P15 414 and 0.1843% per annum of the gross commissions received as reported in their most recently audited financial statements
6.	Insurance Companies	P77 045 and 0.1843% of the gross premiums written, as reported in their most recently audited financial statements
7.	Corporate Insurance Agents	P7 354
8.	International Financial Services Centre Companies	P42 372
9.	Management Companies of Collective Investment Undertaking	P38 526 and 0.0242% per annum of the total value of the assets controlled by a management company in respect of each at the end of each month of the financial year
10.	Micro Lenders
	(a) Average loan book values above P1 000 000	0.737% per annum of a micro lender’s total loan book at the end of each month of the financial year
	(b) Average loan book values up to P1 000 000	P7 369 per annum
11.	Transfer Agents/Transfer Secretaries	P12 705
12.	Trustees of Collective Investment Undertakings	P77 045
13.	Central Counter Party	P231 116
14.	Pawnshops
	(a) Average loan book value above P1 000 000	0.737% per annum of a pawnshop’s total loan book at the end of each month of the financial year
	(b) Average loan book value up to P1 000 000	P7 369 per annum
15.	Retirement Funds	P307 and P20 in respect of each member, at the end of the financial year
16.	Participants/Market Maker	P35 026
17.	Securities Brokers/Dealers	P70 039
18.	Medical Aid Funds	P7 529 and P20 in respect of each member, at the end of each financial year
19.	Finance and Leasing Companies
	(a) Average loan book values above P1 000 000	0.737% per annum of a finance and leasing company’s total loan book at the end of each month of the financial year
	(b) Average loan book values up to P1 000 000	P7 369 per annum
20.	Retirement Funds Administrators	P8 472 and P699 per Fund
21.	Investment Advisors	P9 540 per annum