CHAPTER 08:03
PROCEEDS AND INSTRUMENTS OF CRIME

ARRANGEMENT OF SECTIONS

   SECTION

Chapter I
Preliminary

   1.   Short title

   2.   Interpretation

Chapter II
Confiscation

Part I
Pecuniary Penalty Orders

   3.   Application for pecuniary penalty order

   4.   Determination of application for pecuniary penalty order

   5.   Forfeiture order and pecuniary penalty order

   6.   Pecuniary penalty orders recoverable as civil debt

   7.   Discharge of pecuniary penalty order

   8.   Variation of pecuniary penalty order

   9.   Availability of property to satisfy order

   10.   Court may give directions

Part II
Civil Penalty Orders

   11.   Application for a civil penalty order

   12.   Determination of application for civil penalty order

   13.   Extension of period

   14.   Effect of civil penalty order

   15.   Civil orders recoverable as debt

Part III
Assessment of penalties

   16.   Methods of assessment

   17.   Assessment of benefits of serious offences and serious crime related offences

Part IV
Forfeiture Orders

   18.   Application for forfeiture order

   19.   Determination of application

   20.   Application for an instrument substitution declaration

   21.   Instrument substitution declaration

Part V
Automatic Forfeiture

   22.   Automatic forfeiture upon conviction

   23.   Application for declaration

   24.   Declaration on forfeited property

Part VI
Civil forfeiture

   25.   Civil forfeiture order

   26.   Application for a civil forfeiture order

   27.   Grant of civil forfeiture order

Part VII
General Provisions

   28.   Charge on property

   29.   Vesting of forfeited property

Chapter III
Administrative Forfeiture

   30.   Forfeiture of currency and other bearer negotiable instruments

   31.   Forfeiture of seized property to Government

   32.   Application for determination of claim

   33.   Determination of claim

   34.   Effect of administrative forfeiture

Chapter IV
Restraint of Property Subject to Confiscation under Chapter II

   35.   Restraining orders

   36.   Purpose for restraining order

   37.   Application for restraining order to secure property for purposes of Chapter II Part I and IV

   38.   Application for restraining order to secure property for purposes of Chapter II Part V

   39.   Application for restraining order to secure property for purposes of Chapter II Part II and VI

   40.   Procedure on application

   41.   Determination of application

   42.   Notice of restraining order to be given to persons affected

   43.   Further orders

   44.   Exclusion of property from restraint

   45.   Declaration to suspend automatic forfeiture

   46.   Establishment of Office of Receiver

Chapter V
Offences

   47.   Money laundering offence

   48.   Procedure at trial

   49.   Proceeds from racketeering

   50.   Penalties

Chapter VI
Investigation Powers

Part I
Production orders

   51.   Production order

   52.   Failure to comply with production order

Part II
Monitoring orders

   53.   Application for monitoring order

   54.   Monitoring orders

   55.   Failure to comply with monitoring order

   56.   Existence and operation of monitoring order not to be disclosed

Part III
Information notices

   57.   Information notices

   58.   Persons authorised to issue information notices

   59.   Issuance of information notices

   60.   Information notice to be signed and reasons recorded

   61.   Information required in an information notice

   62.   Form of information notice

   63.   Mode of giving an information notice

   64.   Failure to comply with information notice

   65.   Disclosure of existence of information notice

   66.   Immunity from suit

Part IV
Search warrants

   67.   Powers of search, etc.

Chapter VII
Confiscated Assets Trust Fund

   68.   Establishment of Fund

Chapter VIII
Miscellaneous

   69.   Nature of proceedings

   70.   Confiscation and sentencing

   71.   Costs

   72.   Regulations

   73.   Appeals

   74.   Repeal

   75.   Savings and transitional provision

Act 19, 1990,
Act 13, 2000,
Act 14, 2005,
Act 2, 2007,
Act 28, 2014,
S.I. 149, 2014.

An Act to deprive persons convicted of certain crimes of the benefits or rewards gained from such crimes; to deprive persons of property suspected to be a proceed or instrument of crime, to deal with issues such as money laundering, racketeering and other incidental and connected matters.

[Date of Commencement: 1st January, 2015]

Chapter I
Preliminary (ss 1-2)

1.   Short title

   This Act may be cited as the Proceeds and Instruments of Crime Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires-

   “absconder” means a person who has absconded in accordance with subsection (4);

   “confiscation offence” means any offence under the Laws of Botswana;

   “exploitation” includes, at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

   “foreign serious crime related activity” means any act or omission that at the time of its commission, was a foreign offence that, if committed in Botswana, would have been a serious offence, whether or not the person has been charged with the offence, and if charged-

   (a)   has been tried;

   (b)   has been tried and acquitted; or

   (c)   has been convicted;

   “Fund” means the Confiscated Assets Trust Fund established under section 68;

   “gift” in relation to property, includes a transfer for a consideration significantly less than the greater of-

   (a)   the prevailing market value of the property; or

   (b)   the consideration paid by the donor.

   “instrument” means property that-

   (a)   was used, or was intended to be used in, or in connection with, the commission of an offence or serious crime related activity or foreign serious crime related activity; or

   (b)   was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in paragraph (a);

   “interest” in relation to property means-

   (a)   a legal or equitable estate or interest in the property; or

   (b)   a right power or privilege over, or in connection with, the property;

   “money laundering” means an offence under section 47;

   “pattern of racketeering activity” means the planned, ongoing, continuous or repeated participation or involvement in any confiscation offence and includes at least two serious offences, of which one of the offences occurred after the commencement of this Act and the last offence occurred within 10 years, excluding any period of imprisonment, after the commission of such prior serious offence;

   “pecuniary penalty order” means an order for the payment of a penalty under Chapter II Part I;

   “prescribed investigator” means a police officer, a customs officer or a person authorised to conduct an inquiry or investigation under section 7 of the Corruption and Economic Crime Act or other class of persons as may be prescribed;

   “prescribed person” means any person who is appointed by the Minister by Order to discharge any function or power under this Act;

   “proceeds” means property that was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of an offence or a serious crime related activity or foreign serious crime related activity and includes any property with which proceeds have been mixed;

   “production order” means an order made under section 51;

   “property” means money or any other movable, immovable, corporeal, or unincorporeal thing whether located in Botswana or elsewhere and includes any rights securities and any interest in privileges and claims over that thing as well as:

   (a)   any currency, whether or not the currency is legal tender in Botswana, and any bill, security, bond, negotiable instrument or any instrument capable of being negotiated which is payable to bearer or endorsed payable to bearer, whether expressed in Botswana currency or otherwise;

   (b)   any balance held in Botswana currency or in any other currency in accounts with any bank which carries on business in Botswana or elsewhere;

   (c)   any balance held in Botswana currency or in any other currency in accounts with a bank which carries on business in Botswana;

   (d)   any balance held in any currency with a bank outside Botswana;

   (e)   motor vehicles, ships, aircraft, boats, works of art, jewellery, precious metals or any other item of value;

   (f)   any right or interest in property; and

   (g)   funds or other assets including all property and any interest, dividends or income on or value accruing or generated by such funds or assets;

   “racketeering” means the forming or running of an organisation or group to carry out illegal activities that results in the commission of any offence;

   “Receiver” means a person appointed as such under section 46;

   “repealed Act” means the Act repealed under section 74;

   “restraining order” has the meaning assigned to it under section 35;

   “serious offence” means any offence for which the minimum penalty is a fine of P2 000 or imprisonment for a period of 2 years, or to both;

   “serious crime related activity” means any act or omission that at the time of its commission, was a serious offence, whether or not the person has been charged with the offence or, if charged-

   (a)   has been tried;

   (b)   has been tried and acquitted; or

   (c)   has been convicted;

   “transaction” includes-

   (a)   opening an account, issuing a passbook, renting a safe deposit box, entering into a fiduciary relationship or establishing any other business relationship; and

   (b)   a proposed transaction; and

   “unlawful activity” means any act or omission that constitutes an offence in Botswana or any foreign country that is punishable by imprisonment.

   (2) For the purposes of this Act, a person is convicted of an offence where-

   (a)   the person has been charged with an offence and the court hearing the charge finds the person guilty of the offence but does not record a conviction;

   (b)   the offence was, with the consent of the person, taken into consideration by the court in passing sentence; or

   (c)   the person has been charged with the offence but, before the commencement of the trial, the person absconds.

   (3) For the purposes of an application under this Act in relation to a confiscation offence, a serious crime related activity or a foreign serious crime related activity, property in which a person has an interest includes-

   (a)   any property that is, on the day when the first application is made under this Act in respect of that offence or activity, subject to the effective control of the person; and

   (b)   any property that was the subject of a gift from the person to another person within the period of 6 years before the first application was made under this Act in respect of that offence or activity.

   (4) For the purposes of this Act, a person is deemed to abscond if-

   (a)   the person is charged with an offence but dies without the charge having been determined; or

   (b)   the person is charged with an offence, a warrant to arrest the person is issued in relation to that charge and one of the following occurs-

      (i)   the person dies without the warrant being executed,

      (ii)   at the end of the period of 6 months commencing on the day on which the warrant is issued-

         (A)   the person cannot be found;

         (B)   the person is, for any other reason, not amenable to justice and, if the person is outside Botswana, extradition proceedings have not commenced,

         (C)   the person is, by reason of being outside Botswana, not amenable to justice; or

         (D)   extradition proceedings have commenced but terminate without an order for extradition;

   (c)   the person was committed for trial for the offence; or

   (d)   a court makes an order that the evidence is of sufficient weight to support a conviction for the offence.

   (5) For the purposes of this Act, property is deemed to be subject to the effective control of a person whether or not the person has an interest in it and in determining whether or not property is subject to the effective control of a person or whether or not there are reasonable grounds to believe that it is, regard may be had to-

   (a)   shareholdings in, debentures over or directorships of a company that has an interest, whether direct or indirect, in the property;

   (b)   a trust that has a relationship to the property; and

   (c)   family, domestic, business or other relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and other persons.

Chapter II
Confiscation (ss 3-29)

Part I
Pecuniary Penalty Orders (ss 3-10)

3.   Application for pecuniary penalty order

   (1) Where a person (in this Part referred to as the respondent) has been convicted of one or more serious or confiscation offences, the Director of Public Prosecutions may apply to the court before which the conviction was obtained or to the High Court for a pecuniary penalty order against that person.

   (2) Except with the leave of the court, an application under subsection (1) shall be made within 12 months of the date of the conviction for the offence in respect of which it is made.

   (3) A court shall not grant leave under subsection (2) unless it is satisfied that-

   (a)   the benefit to which the application relates was only derived, realised or identified after the end of the 12 month period referred to in subsection (2);

   (b)   the necessary evidence only became available after the end of the 12 month period referred to in subsection (2); or

   (c)   it is otherwise in the interests of justice to do so.

   (4) The Director of Public Prosecutions shall give written notice of an application made under subsection (1) to the respondent unless the court waives this requirement upon being satisfied that it is reasonable to do so.

   (5) An application made under subsection (1) may be amended at any time prior to its final determination where reasonable notice of the amendment is given by the applicant.

   (6) Subject to subsection (7), after an application made under this section has been finally determined, no further application may be made under this Part against the respondent in respect of the same confiscation offence without the leave of the court which determined the application or the leave of the High Court.

   (7) The leave of the High Court referred to under subsection (6) shall not be given unless the court is satisfied that-

   (a)   the benefit to which the new application relates was only derived, realised or identified after the determination of the first application;

   (b)   the necessary evidence only became available after the determination of the first application; or

   (c)   it is otherwise in the interests of justice to do so.

4.   Determination of application for pecuniary penalty order

   (1) Subject to subsection (4), the court shall in determining an application made under section 3, assess the value of the benefits derived from the commission of the offence in accordance with Part III and-

   (a)   where the offence is a confiscation offence, the court may order that the respondent pay to the Government a penalty equal to the value of the benefit as assessed; or

   (b)   where the offence is a serious offence, the court shall order that the respondent pay to the Government a penalty equal to the value of the benefit as assessed:

   Provided that where an amount has been paid or is payable by way of restitution or compensation the penalty may be reduced by that amount if the court considers it appropriate to do so.

   (2) A respondent is entitled to appear and to adduce evidence at the hearing of an application made under section 3 unless such a respondent is an absconder.

   (3) Notwithstanding subsection (2) the non-appearance of the respondent at the hearing shall not prevent the court from making a final determination in the matter.

   (4) The court may in determining an application under section 3, subject to any rules of court, take into account any material that it thinks fit including-

   (a)   any statement or disclosure made in an examination ordered under Chapter VI; and

   (b)   evidence given in any proceedings relating to the offence of which the respondent was convicted and which gave rise to the application.

   (5) For purposes of this section, the whole or any part of the transcript of proceedings referred to in subsection (4) shall be admissible in evidence as if it is a record of evidence given on the hearing of the application.

   (6) A court may make a pecuniary penalty order under this Part by consent of the applicant and the respondent.

5.   Forfeiture order and pecuniary penalty order

   The making of a pecuniary penalty order under this Part does not prevent the making of a forfeiture order under Chapter II Part IV or the occurrence of automatic forfeiture in respect of an interest in property of the defendant in relation to the same offence.

6.   Pecuniary penalty orders recoverable as civil debt

   The amount a respondent is required to pay under a pecuniary penalty order is a civil debt payable by the respondent to the Government and is recoverable as such.

7.   Discharge of pecuniary penalty order

   A pecuniary penalty order made under this Part is discharged-

   (a)   if the conviction in reliance of which the order is made is subsequently quashed;

   (b)   if-

      (i)   in reliance on a deemed conviction of a person a pecuniary penalty order has been made under this Part against the person and the person is acquitted, or

      (ii)   after the making of the order, the person surrenders to a member of the Botswana Police Service or an officer of the Directorate on Corruption and Economic Crime or is found or becomes for any other reason amenable to justice and the person is tried and acquitted;

   (c)   if it is discharged by a court which hears an appeal against it; or

   (d)   if the amount set out in the penalty order is paid.

8.   Variation of pecuniary penalty order

   (1) If-

   (a)   a court made a pecuniary penalty order under this Part in relation to an offence;

   (b)   in assessing the value of the benefits derived from the offence, the court took into account the making of a restitution or compensation order under the Criminal Procedure and Evidence Act against the defendant in relation to the offence; and

   (c)   an appeal against the restitution or compensation order is allowed, the Director of Public Prosecutions or the respondent may apply to the court which made the pecuniary penalty order for a variation of that order, taking into account the successful appeal.

   (2) An applicant under subsection (1) shall give written notice of the application to the Director of Public Prosecutions or the respondent, as the case may be.

   (3) On an application under subsection (1) the court may, if it considers it appropriate to do so, vary the pecuniary penalty order.

9.   Availability of property to satisfy order

   (1) On application by the Director of Public Prosecutions, a prescribed person or a person belonging to a prescribed class of persons, a court may, if in its opinion particular property in respect of which a restraining order has been made-

   (a)   was, on the date when the order was made, subject to the effective control of the defendant; or

   (b)   was the subject of a gift from the defendant to another person — make an order declaring that the whole, or a specified part, of that property is available to satisfy a pecuniary penalty order.

   (2) If a court declares that property is available to satisfy a pecuniary penalty order, the order may be enforced as if the property is the property of the defendant.

   (3) An applicant under subsection (1) shall give written notice of the application-

   (a)   to the person against whom the order is sought;

   (b)   to the defendant;

   (c)   to any other person to whom the court directs that notice be given; and

   (d)   to any other person whom the applicant has reason to believe has an interest in the property.

   (4) Any person notified under subsection (3) or any other person who claims an interest in the property may seek leave to appear and to give evidence at the hearing of the application but the absence of a person does not prevent the court from making an order under this section.

   (5) In deciding whether to give leave under subsection (4), the court may have regard to the following-

   (a)   whether the respondent has been given notice of any restraining order affecting property the subject of an application under subsection (1);

   (b)   the findings or any evidence given in an application for the exclusion from restraint of property the subject of an application under subsection (1); or

   (c)   any other relevant matter.

10.   Court may give directions

   A court has power to give directions that are necessary to give effect to a pecuniary penalty order made by it and may, if it is satisfied on reasonable grounds that any directions have not been, or would not be, complied with, make an order directing a person specified in the order to take control of property on which there is a charge created by section 28.

Part II
Civil Penalty Orders (ss 11-15)

11.   Application for a civil penalty order

   (1) The Director of Public Prosecutions or a prescribed person may apply to a magistrate’s court or to the High Court for a civil penalty order requiring a person (in this Part referred to as “the respondent”) to pay to the Government an amount assessed by the court as the value of the benefits derived by the respondent from a serious crime related activity that took place not more than twenty years before the making of the application.

   (2) The Director of Public Prosecutions or the prescribed person shall give written notice of an application made under subsection (1) to the respondent.

   (3) An application under subsection (1) may be amended at any time prior to its final determination provided that reasonable notice of the amendment is given to the respondent.

   (4) After an application under subsection (1) has been finally determined, no further application may be made under this Part against the respondent in respect of the same serious crime related activity without the leave of the High Court.

   (5) The leave of the High Court referred to under subsection (4) shall not be given unless the court is satisfied that-

   (a)   the benefit to which the new application relates was only derived, realised or identified after the determination of the first application;

   (b)   the necessary evidence only became available after the determination of the first application; or

   (c)   it is otherwise in the interests of justice to do so.

12.   Determination of application for civil penalty order

   (1) Subject to subsection (3), the court shall, upon hearing an application made under section 11, if it finds it to be more probable than not that the respondent was at any time engaged in a serious crime related activity-

   (a)   assess the value of the benefits derived from the serious crime related activity in accordance with Part III and order that the respondent pay to the Government a penalty equal to the value of the benefit as assessed; or

   (b)   order that the respondent pay less if the court thinks it appropriate to take into account any amount paid or payable by way of restitution or compensation in relation to the same offence.

   (2) A finding of the court for the purposes of subsection (1) need not be based on a finding as to the commission of a particular offence and can be based on a finding that some offence or other constituting a serious crime related activity was committed.

   (3) The respondent is entitled to appear and to adduce evidence at the hearing of an application made under section 11(1) unless such a respondent is an absconder or is otherwise not amenable to justice.

   (4) Notwithstanding subsection (3), the non-appearance of the respondent at the hearing shall not prevent the court from making a final determination in the matter.

   (5) A court may make a civil penalty order under this Part by consent of the applicant and the respondent.

13.   Extension of period

   The twenty years period referred to in section 1 may extend back prior to the commencement of this Act.

14.   Effect of civil penalty order

   The quashing or setting aside of a conviction for an offence that corresponds to a serious crime related activity upon which an application under this Part is founded does not affect the validity of a civil penalty order.

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