FINANCIAL INTELLIGENCE: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Financial Intelligence Regulations

FINANCIAL INTELLIGENCE REGULATIONS

(section 40)

(21st June, 2013)

ARRANGEMENT OF REGULATIONS

   REGULATION

PART I
Preliminary

   1.   Citation

   2.   Interpretation

PART II
Establishment and Ascertainment of Information

   3.   Identification of customer by specified party

   4.   Establishing identity of customer

   5.   Ascertainment of information concerning natural persons

   6.   Ascertainment of information concerning companies and close companies

   7.   Ascertainment of information concerning other entities

   8.   Ascertainment of information concerning partnerships

   9.   Ascertainment of information concerning trusts

   10.   Additional requirements when person acts on authority of another

PART III
Verification of Information

   11.   Verification of information

   12.   Verification in absence of contact with person

   13.   Specified party maintains correctness of particulars

   14.   Customer acceptance policy

PART IV
Keeping of Records

   15.   Keeping of records

   16.   Record keeping by third parties

PART V
Reporting of Suspicious Transactions

   17.   Manner of reporting

   18.   Period of reporting

   19.   Reporting of electronic transfers of money into or out of Botswana

   20.   Consultation and intervention by Agency

   21.   Analysis of reports received and referral of suspected offences

PART VI
Compliance Programmes

   22.   Compliance programmes to be implemented by specified party

   23.   Internal rules concerning ascertainment and verification of identities

   24.   Internal rules concerning keeping of records

   25.   Internal rules concerning reporting of suspicious transactions

PART VII
Miscellaneous

   26.   Powers of examination

   27.   Offences and penalties

   28.   Defence

      Schedule

S.I. 74, 2013.

PART I
Preliminary (regs 1-2)

1.   Citation

   These Regulations may be cited as the Financial Intelligence Regulations.

2.   Interpretation

   (1) In these Regulations, unless the context otherwise requires-

   "business relationship" means an arrangement between a customer and a specified party for the purpose of concluding transactions on a regular basis;

   "beneficial owner" means, in relation to a customer who is a-

   (a)   juristic person, the natural person who ultimately owns and controls the customer; and

   (b)   natural person, any natural person or group of persons who ultimately benefits from a business relationship or single transaction entered into by such customer;

   "close company" has the same meaning assigned to it under the Companies Act;

   "company" has the same meaning assigned to it under the Companies Act; document means an original document or copy of the original document certified to be a true copy by a commissioner of oaths;

   "entity" means an association, a government department, a non-governmental organisation, an international organisation, an intergovernmental organisation and includes a legal person other than a Botswana company or close company or a foreign company;

   "establishing" in relation to establishing the identity of a customer in terms of these Regulations means a two tier process consisting of ascertainment and verification referred to in subregulation (2); and

   "establish" shall be construed accordingly;

   "foreign company" has the same meaning assigned to it under the Companies Act;

   "guidance notes" means guidelines issued in terms of section 27 (1) (b) of the Act which may differ for different specified parties or persons or categories of specified parties or persons and for different categories of transactions concerning-

   (a)   the verification of customer identities;

   (b)   reporting of suspicious and unusual transactions; and

   (c)   any other obligations imposed on the specified party and supervisory authority under the Act;

   "identity card" has the same meaning assigned to it under the National Registration Act;

   "manager" in respect of a local or foreign company, means the natural person who is the principal executive officer of the company by whatever name he or she may be designated and whether or not he or she is a director of that company; and

   "trust" means the obligation imposed by trust deed or other trust instrument binding another person, the trustee to administer or dispose of property for the benefit of the other person or class of persons or for the achievement of the object stated in the trust deed or other trust instrument, but does not include the situation where the property of another is to be administered by a person as executor, tutor or curator, or a trust established by virtue of a testamentary writing or court order, or a trust established by the trustees of a retirement fund in respect of benefits payable to the beneficiaries of that retirement fund, whether in Botswana or elsewhere.

   (2) For the purpose of establishing the identity of a customer in terms of these Regulations-

   (a)   the process of ascertainment referred to in subregulation (1) includes the act of obtaining information either orally or in writing or through some other means without verifying the truth of the information so received; and "ascertain" shall be construed accordingly; and

   (b)   the process of verification means the act of establishing the truth of information received through the process of ascertainment by comparing such information received with reliable documentation; and "verify" and "verifying" shall be construed accordingly.

PART II
Establishment and Ascertainment of Information ( regs 3-10)

3.   Identification of customer by specified party

   (1) Subject to subregulation (2), a specified party may not establish or maintain a business relationship or conclude a transaction with a customer where the specified party has actual knowledge of the fact that or reasonably believes the customer to be conducting such business relationship or transaction under a fictitious or false name.

   (2) To ensure that a business relationship is not established or maintained or that a transaction is not concluded under a fictitious or false name, a specified party shall, in accordance with these Regulations, regarding ascertainment and verification of identity, establish the identity of every customer with whom the specified party establishes a business relationship or concludes a transaction with.

   (3) Where the specified party established a business relationship with a customer prior to the commencement of these Regulations and such specified party has actual knowledge of the fact or reasonably believes that such a business relationship exists upon or continues to exist after commencement of these Regulations, the specified party shall establish the identity of such customer before concluding any transaction with the customer in the course of that relationship, and the specified party may consult the Agency for assistance with the administration of these Regulations.

4.   Establishing identity of customer

   (1) For the purposes of establishing the identity of a customer under section 10 of the Act, the specified party shall comply with these Regulations regarding ascertainment and verification of identity.

   (2) Notwithstanding regulation 3 or any other provision of these Regulations requiring compliance with the establishment of the identity of a customer or beneficial owner, a specified party shall, where such regulation or other provisions regarding establishment cannot, due to impossibility or reasonable impracticability, be complied with, the specified party shall-

   (a)   as far as it is reasonably possible, take steps to ascertain or verify such identity; and

   (b)   without delay give written notice to the Agency of such impossibility or impracticability indicating any alternative measures used to identify or verify the identity.

   (3) Notwithstanding anything to the contrary, a specified party may establish a business relationship or take preparatory steps to conclude a transaction before verifying the identity of a customer but shall comply with the provisions of these Regulations regarding verification of such customer's identity prior to such customer receiving any benefit from the transaction.

   (4) The steps to be taken for establishing the identity of a customer under section 10 of the Act may be completed by the employee or other representative of the specified party, but the specified party shall take reasonable steps to ensure that the person is sufficiently trained and resourced to ensure compliance with those procedures.

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

Please click here to login