BOTSWANA ENERGY REGULATORY AUTHORITY

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

PART I
Preliminary

 

   1.   Short title

 

   2.   Interpretation

 

 

 

PART II
Establishment and functions of Botswana Energy Regulatory Authority

 

   3.   Establishment of Authority

 

   4.   Objectives of Authority

 

   5.   Functions of Authority

 

   6.   Specific functions and powers of Authority

 

   7.   Seal of Authority

 

   8.   Board of Authority

 

   9.   Powers and functions of Board

 

   10.   Tenure of office

 

   11.   Disqualification, removal and resignation of members

 

   12.   Suspension of member

 

   13.   Vacation of office

 

   14.   Filling of vacancies

 

   15.   Remuneration and allowances

 

   16.   Restrictions on members

 

 

 

PART III
Meetings and proceedings of Board

 

   17.   Meetings of Board

 

   18.   Disclosure of interest

 

   19.   Confidentiality

 

   20.   Committees of Board

 

   21.   Signification of documents

 

   22.   Co-opted members

 

 

 

PART IV
Staff of Authority

 

   23.   Chief Executive Officer

 

   24.   Secretary to Board

 

   25.   Appointment of staff

 

 

 

PART V
Financial provisions

 

   26.   Funds of Authority

 

   27.   Strategic and annual plans

 

   28.   Provision of information

 

   29.   Financial year

 

   30.   Accounts and audit

 

   31.   Annual report

 

   32.   Pension and other funds

 

 

 

PART VI
Licensing of regulated activities

 

   33.   Regulatory framework

 

   34.   Service providers to be licensed

 

   35.   Licensing of electricity sector activities

 

   36.   Licensing of natural gas sector activities

 

   37.   Licensing of petroleum sector activities

 

   38.   Exclusive licence

 

   39.   Issue of licence

 

   40.   Assessment of application for licence

 

   41.   Authorisation to construct infrastructure

 

   42.   Application through tendering process

 

   43.   Validity of licence

 

   44.   Conditions of licence

 

   45.   Licensed for more than one activity

 

   46.   Suspension and revocation of licence

 

   47.   Transfer of licence

 

   48.   Bankruptcy, insolvency, etc. of licensee

 

   49.   Change of ownership by licensee

 

   50.   Continuation of service in public interest

 

   51.   Fees

 

 

 

PART VII
Supervision and investigation by Authority

 

   52.   Supervision by Authority

 

   53.   Investigation by Authority

 

   54.   Search of premises

 

   55.   Enforcement

 

 

 

PART VIII
Tariff regulation and review

 

   56.   Continuation of tariffs

 

   57.   Review of tariffs

 

   58.   Tariff methodology

 

   59.   Subsidies

 

   60.   Recoverable cost by single buyer

 

   61.   Notice of approved tariffs

 

 

 

PART IX
Miscellaneous provisions

 

   62.   Competition rules

 

   63.   Consumer complaints

 

   64.   Investigation of complaints

 

   65.   Compensation

 

   66.   Power to obtain information

 

   67.   Power to hold inquiries

 

   68.   Use of information

 

   69.   Indemnity

 

   70.   Public register

 

   71.   Appeals

 

   72.   Continuity of service

 

   73.   Offences

 

   74.   Regulations

 

   75.   Savings and transitional provisions

 

 

Act 13, 2016,
S.I. 125, 2016,
S.I. 129, 2016.

   An Act to provide for the establishment of Botswana Energy Regulatory Authority, its mandate, the regulation of the energy sector, and for matters incidental thereto.

[Date of Commencement: 28th November, 2016 (Parts I, II and VI and section 75)]

PART I
Preliminary (ss 1-2)

 

1.   Short title

   This Act may be cited as Botswana Energy Regulatory Authority Act.

 

2.   Interpretation

   In this Act, unless the context otherwise requires-

"authorisation procedure" means the procedure prescribed by the Authority for authorising the construction of electricity generating capacity and significant infrastructure;

   "Authority" means the Botswana Energy Regulatory Authority established under section 3;

   "Board" means the Board of the Authority established under section 8;

   "Chief Executive Officer" means the Chief Executive Officer of the Authority appointed under section 23;

   "consumer" means the end-user of a product or service under the regulated sector;

   "customer" means a person who is provided with a service or buys a product from a licensee for purposes of selling or providing the service to a consumer at a tariff under the regulated sector;

   "energy sector" means sectors dealing with electricity, petroleum products, coal, natural gas, bio-energy, solar energy, renewable energy resources and other energy resources;

   "licensed activity" means an activity licensed under Part VI;

   "licensee" means a person licensed under this Act;

   "member" means a member of the Board;

   "petroleum products" means wholesale or retail oil, petrol paraffin, liquefied petroleum gas, diesel and any products specified as such by the Authority;

   "regulated entity" means a licensee, operator, supplier and any other entity involved in the provision of service or activity in the regulated sector;

   "regulated sector" means the energy sector;

   "regulated sector legislation" means any of the following-

 

   (a)   the Electricity Supply Act;

 

   (b)   the Mines and Minerals Act;

 

   (c)   the Petroleum (Exploration and Production) Act;

 

   (d)   the Botswana Power Corporation Act;

 

   (e)   the Control of Goods, Prices and Other Charges Act; and

 

   (f)   any other legislation that applies to, is used in or is relevant to the regulated sector;

   "significant infrastructure" means infrastructure that is delivered by a project or works that the Authority considers to be of a size or complexity that would require a bidding process for consumers to receive a better tariff or service;

   "tariff" means a price or charge imposed on goods or services; and

   "tendering procedure" means the procedure determined by the Authority, for conducting a tender for the procurement of an electricity generating capacity or significant infrastructure.

PART II
Establishment and functions of Botswana Energy Regulatory Authority (ss 3-16)

 

3.   Establishment of Authority

   (1) There is hereby established a body to be known as the Botswana Energy Regulatory Authority.

   (2) The Authority shall be a body corporate with a common seal, capable of suing and being sued in its own name and, subject to the provisions of this Act, of performing such acts as bodies corporate may, by law, perform.

 

4.   Objectives of Authority

   The Authority shall be responsible for providing an efficient regulatory framework for the regulated sector in accordance with this Act, with the primary mandate of providing the economic regulation of the sector.

 

5.   Functions of Authority

   The Authority shall be responsible for-

 

   (a)   ensuring sustainable and secure supplies in the regulated sector;

 

   (b)   setting and maintaining service standards;

 

   (c)   ensuring that tariffs in the regulated sector are fixed on the basis of a tariff methodology that has been set up in a transparent manner taking into account Government policy on cross subsidies between classes of consumers;

 

   (d)   ensuring that interests between consumer, customer and licensee are adequately balanced;

 

   (e)   protecting and preserving the environment; and

 

   (f)   ensuring that the regulation of the energy sector is done in accordance with the best international regulatory practice.

 

6.   Specific functions and powers of Authority

   (1) The Authority shall perform functions conferred on it by any regulated sector legislation.

   (2) Notwithstanding the generality of subsection (1), the Authority shall have the following specific functions-

 

   (a)   regulate tariffs, including allowed revenue, for regulated entities in the regulated sector;

 

   (b)   regulate coal supply agreements between collieries, coal suppliers and price-regulated generators;

 

   (c)   subject to the regulated sector legislation, to license activities in the regulated sector;

 

   (d)   regulate network access for independent power producers, privately financed projects in the regulated sector;

 

   (e)   provide advisory technical expertise on tender procedures to the Public Procurement and Public Asset Disposal Board established under the Public Procurement and Asset Disposal Act;

 

   (f)   regulate network access and storage systems access in natural gas network, gas storage, oil pipelines, petroleum pipelines and storage of oil and petroleum products including third party access to energy, transport and storage infrastructure;

 

   (g)   monitor and inspect licensees and enforce licence obligations;

 

   (h)   implement policy in relation to the generation of electricity from renewable energy resources, as may be advised by the Minister; and

 

   (i)   oversee project development in the regulated sector.

 

7.   Seal of Authority

   (1) The seal of the Authority shall be such device as may be determined by the Board and shall be kept by the Chief Executive Officer.

   (2) The affixing of the seal shall be authenticated by the Chief Executive Officer or any other person authorised in that regard by a resolution of the Board.

   (3) Any contract or instrument which, if entered into or executed by a person not being a body corporate would not be required to be under seal, may be entered into or executed without seal on behalf of the Authority by the Chief Executive Officer or any other person authorised by the Board to do so.

 

8.   Board of Authority

   (1) The powers and functions of the Authority shall be exercised and performed by the Board appointed by the Minister.

   (2) The Board shall consist of-

 

   (a)   four full time members; and

 

   (b)   four part time members.

   (3) The Minister shall appoint, from among part time members, the Chairperson and Deputy Chairperson of the Board.

   (4) Membership of the Board shall consist of persons suitably qualified in disciplines relevant to the regulated sector.

   (5) The Chief Executive Officer shall be an ex-officio member of the Board.

 

9.   Powers and functions of Board

   (1) The Board shall ensure, so far as is practicable, that services provided in the regulated sectors are safe, reliable, efficient and affordable.

   (2) Notwithstanding the generality of subsection (1), the Board shall-

 

   (a)   be responsible for the general control of the performance and management of the undertakings and affairs of the Authority;

 

   (b)   protect and promote the interests of customers, consumers and other users of the services in the regulated sector, particularly in respect of-

 

      (i)   the tariffs charged for, the availability and quality of services and products, and

 

      (ii)   where appropriate, the variety of services and products offered throughout the country;

 

   (c)   where relevant and so far as is practicable, ensure that the regulated entities have and maintain the resources to provide services and are otherwise fit and proper persons to provide the service;

 

   (d)   monitor the performance of the regulated entities in relation to levels of investment, availability, quantity, quality and standards of service, pricing, costs of services, efficiency of production, distribution and supply of service and any other matter decided upon by the Authority;

 

   (e)   enhance public knowledge, awareness and understanding of the regulated sector;

 

   (f)   encourage the preservation and protection of the environment and conservation of natural resources in accordance with any written law;

 

   (g)   process applications for and issue licences, permits and authorisations for regulated sector as may be prescribed;

 

   (h)   impose administrative sanctions, issue and follow up enforcement procedures to ensure compliance with conditions of licences, permits and authorisations;

 

   (i)   promote efficiency and economic growth in the regulated sector;

 

   (j)   hear complaints and disputes from customers, consumers and regulated entities and resolve the disputes and complaints or facilitate dispute resolution;

 

   (k)   ensure that the needs of low income, rural or disadvantaged groups or persons are taken into account;

 

   (l)   advise the Minister on policy matters concerning regulated sector and regulated sector legislation;

 

   (m)   take regulatory decisions in an open, transparent, accountable, proportionate, and objective manner; and

 

   (n)   perform all additional functions and duties as may be conferred on it by any written law.

   (3) The Minister may give the Board directions, of a general or specific nature, which directions shall not be inconsistent with this Act or with the contractual or other legal obligations of the Board, and the Board shall give effect to any such direction.

 

10.   Tenure of office

   All members-

 

   (a)   shall be appointed by the Minister for a maximum period of five years on such terms and conditions as may be specified in their instrument of appointment, provided that the appointments shall not expire on the same date; and

 

   (b)   may be considered for re-appointment for a further term, not exceeding five years.

 

11.   Disqualification, removal and resignation of members

   (1) A person shall not qualify for appointment as a member or continue to hold office if he or she-

 

   (a)   is at the time of appointment, a member of the National Assembly, councilor or a member of Ntlo ya Dikgosi;

 

   (b)   has in terms of any law in force in any country-

 

      (i)   been adjudged or otherwise declared bankrupt and has not been discharged or rehabilitated, or

 

      (ii)   made an assignment, arrangement or composition with his or her creditors, which has not been rescinded or set aside;

 

   (c)   has, within a period of 10 years immediately preceding the date of his or her appointment, been convicted of a criminal offence-

 

      (i)   in Botswana, or

 

      (ii)   outside Botswana, which if committed in Botswana, would have been an offence,

and sentenced to at least six months imprisonment without the option of a fine, and has not received a free pardon irrespective of whether the sentence has been suspended;

 

   (d)   has, within a period of 10 years immediately preceding the date of his or her appointment, been disqualified or suspended by a competent authority from practising a profession on the grounds of misconduct or negligence; or

 

   (e)   is a holder of licence or has an interest in a licence issued under this Act.

   (2) The Minister shall remove a member from office, if the member-

 

   (a)   becomes subject to a disqualification under subsection (1);

 

   (b)   has failed to comply with the provisions of sections 18 and 19;

 

   (c)   is convicted of an offence under this Act, or under any other Act and after a period of 30 days, from the date that a ruling against the member is made on all appeals made in respect of the conviction, he or she is sentenced to imprisonment for a term of six months or more without an option of fine;

 

   (d)   is absent, without reasonable cause, from three consecutive meetings of which that member has had notice;

 

   (e)   is found to be physically and mentally incapable of performing his or her duties efficiently, and a medical doctor has issued a medical certificate to that effect;

 

   (f)   becomes the holder of a licence or acquires any interest in a licence issued under this Act;

 

   (g)   commits a material breach of the codes of professional conduct and ethics; or

 

   (h)   contravenes the provisions of this Act or otherwise misconducts himself or herself to the detriment of the objectives of the Authority.

   (3) For purposes of subsection 2(h) "misconduct" includes any act, done by a member without reasonable excuse, which-

 

   (a)   amounts to a failure to perform in a proper manner, any duty imposed on him or her as such;

 

   (b)   is prejudicial to the efficient carrying out of the functions of the Authority; or

 

   (c)   tends to bring the Authority into disrepute.

   (4) A member may resign from the Board by giving 30 days’ notice of his or her intention to resign from office, in writing, to the Minister.

 

12.   Suspension of member

   The Minister may, in writing, suspend from office a member against whom criminal proceedings are instituted for an offence in respect of which a sentence of imprisonment may be imposed, and whilst that member is so suspended, he or she shall not carry out any duties or be entitled to any remuneration

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