PENSION AND PROVIDENT FUNDS

ARRANGEMENT OF SECTIONS

   SECTION

PART I
Preliminary

   1.   Short title

   2.   Interpretation

   3.   Appointment and functions of Registrar

PART II
Licensing and Matters Incidental thereto

   4.   ......

   5.   Licensing of fund

   6.   Effect of licensing of fund

   7.   Rules of a fund

   8.   Amendment of rules of a fund

   9.   Conclusiveness of licensing certificate

   10.   Dissolution of a licensed fund

   11.   ......

PART III
Management and Administration

   12.   Registered office

   13.   Principal officer

   14.   Appointment of auditor and actuary

PART IV
Financial Requirements

   15.   Accounts and holding of assets

   16.   Investigations by actuary

   17.   Investments

   18.   Minister may regulate investments

   19.   Fund in unsound financial condition

PART V
Inquiries by and Other Powers of Registrar

   20.   Inquiries

   21.   Investigation of affairs of a licensed fund

   22.   Registrar may prohibit dealings with assets pending investigation

   23.   Registrar may require unlicensed fund to provide information

   24.-25.   ......

PART VI
General

   26.   Right to obtain copies of or to inspect documents

   27.   ......

   28.   Effect of certificate of Registrar on documents

   29.   Service of process

   30.   ......

   31.   Improper use of certain designations

   32.   Offences relating to false statements or entries

   33.   Offences and penalties

   34.   Power to make regulations

   35.   ......

   36.   Saving in respect of existing rights

Act 18, 1987,
S.I. 113, 1988,
Act 2, 2007.

An Act to provide for the licensing, incorporation, regulation and dissolution of pension and provident funds and for matters incidental to or connected with the foregoing.

[Date of Commencement: 28th September, 1988]

PART I
Preliminary (ss 1-3)

[Ch2703s1]1.   Short title

   This Act may be cited as the Pension and Provident Funds Act.

[Ch2703s2]2.   Interpretation

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

   "actuary" means-

   (a)   a fellow of the Institute of Actuaries in England or the Faculty of Actuaries in Scotland; or

   (b)   such other person having actuarial knowledge as the Registrar may approve;

   "appointed day" means the date on which this Act is brought into operation;

   "associate", in relation to an application for licensing of a fund, includes-

   (a)   any company in which that fund has a managerial interest;

   (b)   any person who is an employee or manager of that fund; or

   (c)   if the fund is a company-

      (i)   any director of that company;

      (ii)   any subsidiary of that company;

      (iii)   any director or employee of any such subsidiary;

   "Botswana member" means a member who is resident in Botswana;

   "court", in relation to any offence under this Act, includes a magistrate's court having jurisdiction in respect of that offence;

   "employee" includes a director of a company whose time, in the opinion of the Registrar, is wholly or almost wholly occupied in the service of the company;

   "existing fund" means a fund which was established and has been approved by the Commissioner of Taxes in terms of the Cap. 52:01 Income Tax Act;

   "external fund" means a fund which has a head office outside Botswana;

   "fund" means any scheme or arrangement, other than an insurance company scheme but including a trust fund, the principal object of which is to provide benefits for persons who are or have been members of the scheme or arrangement upon their retirement on account of age or ill-health, or upon a person completing a fixed period of service, whether or not such scheme or arrangement-

   (a)   also provides benefits for dependants or nominees of deceased members; or

   (b)   continues to admit members or to receive contributions,

and includes any fund established by or in terms of any enactment:

   Provided that a scheme or arrangement which is established to benefit only one member or his dependants shall not be regarded as a fund;

   "head office", in relation to a fund, means the office at which the main records of the fund are kept;

   "insurance company scheme" means a scheme which provides for the establishment and administration of a fund exclusively by an insurer;

   "insurer" means a person licensed to transact long term insurance business in terms of the Cap. 46:01 Insurance Industry Act;

   "internal fund" means a fund which has its head office in Botswana;

   "licensed", in relation to a fund, means licensed in terms of this Act;

   "life insurer" means an insurer which carries on long term insurance business as defined in the Insurance Industry Act;

   "member", in relation to a fund, means any person who is a member of that fund in terms of the rules thereof;

   "officer", in relation to a fund, means any person who is employed by that fund or is otherwise concerned in the management of that fund;

   "participating employer", in relation to a fund, means any employer who contributes to that fund in terms of the rules thereof or who participates in the administration of that fund not being an insurance company scheme;

   "pension" includes an annuity acquired through a fund and a commuted lump sum not exceeding 34 per cent of the pension to which the person would be entitled on retirement;

   "pension fund" means any fund the principal object of which is to provide for the payment of a pension to a person, who is or has been a member of the fund, on his retirement;

   "principal officer", in relation to a fund, means a person appointed in terms of section 13 to be the principal officer of that fund;

   "provident fund" means a fund which is not a pension fund;

   "registered office", in relation to a fund, means the registered office of that fund referred to in section 12;

   "Registrar" means the Regulatory Authority established under the Cap. 46:08 ">Non-Bank Financial Institution Regulatory Authority Act;

   "retirement" means the attainment of retiring age, whether or not there is a termination of employment;

   "retiring age" means that age, at which the member is, under the rules of the fund, expected to retire from employment;

   "return" includes-

   (a)   all accounts required by section 15;

   (b)   any report by the actuary or auditor of a fund;

   (c)   any document which a fund is required by or in terms of this Act to furnish to the Registrar; and

   (d)   any other information which the Registrar requires a fund to submit to him;

   "rules", in relation to a fund, means the rules applicable to that fund, including-

   (a)   any document by or in terms of which the fund is established; and

   (b)   those provisions relating to the conduct of the business of the fund, the benefits which may be granted from the fund and the contributions which are payable to the fund;

   "self-administered fund" means a fund which is not an insurance company scheme.

   (2) For the purposes of this Act, a member of a partnership whose time, in the opinion of the Registrar, is wholly or almost wholly occupied in the service of the partnership may be regarded as an employee, in which case the partnership shall be regarded as his employer.

[Ch2703s3]3.   Appointment and functions of Registrar 2 of 2007, s. 107

   (1)-(10) ......

   (11) Subject to the provisions of this Act, the functions and duties of the Registrar shall include-

   (a)   the licensing and superintendence of the conduct of pensions and provident funds;

   (b)   the formulation and enforcement of standards in the conduct of the business of pensions and provident funds with which the management of such funds must comply;

   (c)   the recommendation to the Minister to make regulations for the carrying out of Government policies relating to funds;

   (d)   such other functions as are assigned to the Registrar by this Act or regulations made thereunder or such other duties as the Minister may assign to him.

   (12) The Registrar shall, as soon as reasonably practicable after each year ending on 31st December, furnish to the Minister a report on the working of the Act during that year together with copies or summaries of documents deposited with him under this Act during that year; and the Minister shall lay the report before the National Assembly as soon as reasonably practicable thereafter.

PART II
Licensing and Matters Incidental thereto (ss 4-11)

[Ch2703s4]4.   ...... 2 of 2007, s. 107

[Ch2703s5]5.   Licensing of fund

   (1) Any person who wishes to apply for the licensing of a fund shall submit to the Registrar–

   (a)   an application for a licence in the prescribed form; and

   (b)   if the application is for a licence, two copies of printed, duplicated or typed rules providing for the matters referred to in section 7.

   (2) If, on receipt of an application in terms of subsection (1)-

   (a)   for licensing, after considering the application, the rules accompanying such application and such further information as he may require, the Registrar is satisfied that-

      (i)   the rules are not inconsistent with the provisions of this Act, and

      (ii)   the fund is or will be based on sound financial principles,

      he shall license the fund;

   (3)–(4) ...... 2 of 2007, s. 107

   (5) The Registrar-

   (a)   may at any time return the rules submitted in terms of subsection (1) to the applicant for reconsideration or amendment;

   (b)   shall, on the licensing of a fund in terms of subsection (2)(a)-

      (i)   return to the fund a copy of the rules endorsed by him; and

      (ii)   issue to the fund a licensing certificate.

   (6) ...... 2 of 2007, s. 107

[Ch

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