EXCHANGE CONTROL: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Exchange Control (Authorization to Act as Authorized Dealer and Depositary) Order

Exchange Control (Authorization to Act as Authorized Depository) Order

Exchange Control (Bankruptcy Notices) Order

Exchange Control (Branches and Residence) Order

Exchange Control (Bureaux de Change Foreign Currency Retention Authorisation) Order

Exchange Control (Declaration and Evidence) Order

Exchange Control (Delegation of Powers of Minister) Order

Exchange Control (Delegation of Powers) Order

Exchange Control (Import and Export) Order

Exchange Control (Payments) Order

Exchange Control (Purchase of Foreign Currency) Order

Exchange Control Regulations

Exchange Control (Revocation of Exchange Control) Regulations

Exchange Control (Specified Currency and Prescribed Securities) Order

Exchange Control (Surrender of Foreign Currency) (Partial Exemption) Order

Exemptions (from Certain Provisions of Exchange Control Regulations) Order

EXCHANGE CONTROL REGULATIONS

 

(under section 3)

 

(23rd August, 1976)

 

ARRANGEMENT OF REGULATIONS

 

   REGULATION

 

 

 

PART I
Preliminary

 

   1.   Citation

 

   2.   Interpretation

 

 

 

PART II
Gold and Foreign Currency

 

   3.   Dealings in gold and foreign currency

 

   4.   Surrender of gold and foreign currency

 

   5.   Bailees of gold and foreign currency

 

   6.   Travellers' cheques, etc.

 

 

 

PART III
Payments

 

   7.   Payments in Botswana

 

   8.   Payments outside Botswana

 

   9.   Compensation deals

 

 

 

PART IV
Securities

 

   10.   Interpretation of Part IV

 

   11.   Issue of securities

 

   12.   Transfer of securities and coupons

 

   13.   Issue of bearer certificates and coupons

 

   14.   Substitution of securities and certificates outside Botswana

 

   15.   Payment of capital moneys outside Botswana

 

   16.   Duties of persons keeping registers

 

   17.   Additional provisions as to nominee holdings

 

   18.   Deposit of certificates of title

 

   19.   Additional provisions as to deposited certificates

 

   20.   Special provisions as to dealings in certain securities

 

   21.   Validation of certain transfers

 

 

 

PART V
Import and Export

 

   22.   Restrictions on import

 

   23.   General restrictions on export

 

   24.   Payment for exports

 

 

 

PART VI
Miscellaneous

 

   25.   Duty to collect certain debts

 

   26.   Duty not to delay sale or importation of goods

 

   27.   Property obtained by infringement of these Regulations

 

   28.   Provisions supplemental to preceding provisions of Part V

 

   29.   Transfer of annuities, policies, etc.

 

   30.   Settlements

 

   31.   Companies

 

 

 

PART VII
Supplemental

 

   32.   Exemptions

 

   33.   Blocked accounts

 

   34.   Contracts, legal proceedings, etc.

 

   35.   Enforcement and administration

 

   36.   Powers of Minister

 

   37.   Branches

 

   38.   Persons leaving Botswana

 

   39.   Determination of residence

 

   40.   Prohibitory directions by Minister

 

 

 

      First Schedule - Foreign Companies

 

      Second Schedule - Blocked Accounts

 

      Third Schedule - Legal Proceedings, etc.

 

      Fourth Schedule - Enforcement

 

 

S.I. 110, 1976,
S.I. 44, 1982.

PART I
Preliminary
(regs 1-2)

 

1.   Citation

   These Regulations may be cited as the Exchange Control Regulations.

 

2.   Interpretation

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

   "authorized dealer" means, in relation to gold or any foreign currency, a person for the time being authorized by the Minister, by an order made under regulation 36, to act for the purposes of these Regulations as an authorized dealer in relation to gold, or, as the case may be, that foreign currency;

   "authorized depositary" means a person for the time being authorized by the Minister, by an order made under regulation 36, to act as an authorized depositary;

   "bearer certificate" means a certificate of title to securities by the delivery of which (with or without endorsement) the title to the securities is transferable;

   "certificate of deposit" means a document relating to money, in any currency, which has been deposited with the issuer or some other person, being a document which recognizes an obligation to pay a stated amount to bearer or to order, with or without interest, and being a document by the delivery of which, with or without endorsement, the right to receive that stated amount, with or without interest, is transferable;

   "certificate of title to securities" means any document of title whereby a person recognizes the title of another to securities issued or to be issued by such first-mentioned person, and in the case of any such document with coupons (whether attached or on separate coupon sheets) includes any coupons which have not been detached;

   "coupon" means a coupon representing dividends or interest on a security;

   "foreign currency" has the meaning ascribed to it by regulation 3;

   "Government bill" means any bill, note or other obligation of a Government in any part of the world, being a document by the delivery of which, with or without endorsement, title is transferable, and not being an obligation which is or has been legal tender in any part of the world, and includes a Treasury bill;

   "policy of assurance" means any policy securing the payment of a capital sum or annuity on the occurrence of a specified event which is certain to happen and includes-

 

   (a)   any policy by which the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life; and

 

   (b)   any policy securing the payment of an immediate annuity,

and the reference in this definition to the occurrence of a specified event which is certain to happen includes the occurrence which is certain to happen, of one of specified events none of which by itself is certain to happen;

   "specified currency" has the meaning ascribed to it by regulation 4 as extended by regulation 6;

   "unit", in relation to a unit trust scheme, means a right or interest (whether described as a unit, as a sub-unit or otherwise) which may be acquired under the scheme;

   "unit trust scheme" means any arrangements made for the purpose, or having the effect, or providing for persons having funds available for investments, facilities for the participation by them, as beneficiaries under a trust, in profits or income arising from the acquisition, holding, management or disposal of any property whatsoever.

   (2) Any provision of these Regulations (however worded) the effect of which is to prohibit the doing of any act where a person to or by whom the act is to be done or who stands in a specified relation to any property possesses any specified attribute as to residence or otherwise shall, where the act is done to or by two or more persons or, as the case may be, where two or more persons stand jointly in that relation to the property, operate to prohibit the doing of that act if any of those persons possess that attribute; and any provision of these Regulations imposing an obligation on any person to do an act if he possesses any specified attribute as to residence or otherwise shall, in relation to any act which can only be done by two or more persons jointly-

 

   (a)   where all those persons possess that attribute, operate to impose a joint obligation on all of them to do the act; and

 

   (b)   where only some of them possess that attribute, operate to impose a separate obligation on each one of them who possesses that attribute to do all he can to secure the doing of the act.

   (3) Any power conferred by these Regulations to prescribe the declarations which are to be furnished on any occasion shall include a power to require that the declarations shall be made by specified persons and shall be verified in a specified manner.

   (4) Nothing in these Regulations shall be construed as requiring the Minister to pay any sum otherwise than in Botswana currency or otherwise than in Botswana, and any provision of these Regulations requiring the Minister to pay any sum to any person shall, where that sum is in a specified currency, be construed as a provision that the Minister shall pay to that person the amount in Botswana currency which he would have received for the specified currency if he had sold it to an authorized dealer in pursuance of an offer made under regulation 4 at the time when the said sum is paid.

   (5) The obligations and prohibitions imposed by these Regulations shall, subject to the express limitations contained therein, apply to all persons, notwithstanding that they are not in Botswana and are not citizens of Botswana.

PART II
Gold and Foreign Currency
(regs 3-6)

 

3.   Dealings in gold and foreign currency

   (1) Except with the permission of the Minister, no person, other than an authorized dealer, shall, in Botswana, and no person resident in Botswana, other than an authorized dealer, shall, outside Botswana, buy or borrow any gold or foreign currency from, or sell or lend any gold or foreign currency to, any person other than an authorized dealer.

   (2) Where a person buys or borrows any gold or foreign currency in Botswana or, being a person resident in Botswana, buys or borrows gold or foreign currency outside Botswana, he shall comply with such conditions as to the use to which it may be put or the period for which it may be retained as may from time to time be notified to him by the Minister.

   (3) In these Regulations the expression "foreign currency" includes any currency and any notes of a class which are or have at any time been legal tender in any country outside Botswana, and any reference to foreign currency, except so far as the context otherwise requires, includes a reference to any right to receive foreign currency in respect of any credit or balance at a bank, but does not include any currency or notes issued by the Bank of Botswana.

 

4.   Surrender of gold and foreign currency

   (1) Every person in or resident in Botswana who is entitled to sell, or to procure the sale of, any gold, or any foreign currency to which this regulation applies, and is not an authorized dealer, shall offer it, or cause it to be offered, for sale to an authorized dealer, unless the Minister consents to his retention and use thereof or he disposes thereof to any other person with the permission of the Minister.

   (2) The foreign currency to which this regulation applies is such foreign currency (hereinafter referred to as "specified currency") as may from time to time be specified by the Minister by order published in the Gazette.

   (3) If a person who has obtained the consent of the Minister to his retention and use of any gold or specified currency, and has stated in an application for the consent that he requires it for a particular purpose, no longer requires the gold or currency for that purpose, subregulation (1) shall thereupon apply to him in relation to that gold or currency as if the Minister had revoked his consent to his retention and use thereof.

   (4) A person who acquires any gold or specified currency from an authorized dealer shall be treated for the purposes of this regulation as if the Minister had consented to the retention and use by him of that gold or currency (subject, however, to any conditions notified to him in accordance with regulation 3(2)), and as if any statement made by him in an application for that gold or currency as to the purpose for which he requires it had been made by him in an application for the Minister's consent to his retention and use thereof.

   (5) Where a person has become bound under this regulation to offer or cause to be offered any gold or specified currency for sale to an authorized dealer, he shall not be deemed to comply with that obligation by any offer made or caused to be made by him if the offer is an offer to sell at a price exceeding that authorized by the Minister or without payment of any usual and proper charges of the authorized dealer, or otherwise on any unusual terms.

   (6) Where a person has become bound under this regulation to offer or cause to be offered any gold or specified currency for sale to an authorized dealer and has not complied with that obligation, the Minister may direct that that gold or currency shall vest in the Minister and it shall vest in the Minister accordingly free from any mortgage, pledge or charge, and the Minister may deal with it as he thinks fit, but the Minister shall pay to the person who would, but for the direction, be entitled to the gold or currency such sum as he would have received therefor if he had sold it to an authorized dealer in pursuance of an offer made under this regulation at the time when the vesting occurred.

   (7) In any proceedings in respect of a failure to comply with the provisions of this regulation, it shall be presumed, until the contrary is shown, that the gold or currency in question has not been offered for sale to an authorized dealer.

 

5.   Bailees of gold and foreign currency

   (1) Every person in Botswana by whom or to whose order (whether directly or indirectly) any gold or any specified currency in the form of notes is held in Botswana but who is not entitled to sell it or procure its sale shall notify the Bank of Botswana in writing that he so holds that gold or currency.

   (2) The Minister may direct any person in Botswana by whom or to whose order (whether directly or indirectly) any gold or any specified currency in the form of notes is held in Botswana, whether or not he is entitled to sell it or procure its sale, to cause that gold or currency to be kept at all times in the custody of such banker as may be specified in the direction.

 

6.   Travellers' cheques, etc.

   (1) This regulation applies to any document of a kind intended to enable the person to whom the document is issued to obtain foreign currency from some other person on the credit of the person issuing it, and in particular to any traveller's cheque or other draft or letter of credit so intended.

   (2) For the purposes of these Regulations, the person issuing a document to which this regulation applies, and the person to whom it is issued, shall be deemed respectively to sell and buy foreign currency and where foreign currency is obtained by means of the document to sell and buy that foreign currency.

   (3) Any such document not expressed in terms of Botswana currency shall, if it is of a kind intended to enable the person to whom it is issued to obtain any specified currency, be treated also for the purposes of these Regulations as itself being specified currency.

   (4) Every person in or resident in Botswana who holds or to whose order there is held any document to which this regulation applies, being a document expressed in terms of Botswana currency, shall encash it or cause it to be encashed in Botswana with the person issuing it or with a banker, unless the Minister consents to his retention and use thereof and, where in his application for that consent he has stated that he requires it for a particular purpose, unless also he still requires it for that purpose.

   (5) A person who acquires any document to which subregulation (4) applies from an authorized dealer shall be treated for the purposes of that subregulation as if the Minister had consented to the retention and use by him of that document (subject, however, to any conditions notified to him in accordance with regulation 3(2)), and as if any statement made by him in an application for that document as to the purpose for which he requires it had been made by him in an application for the Minister's consent to his retention and use thereof.

PART III
Payments
(regs 7-9)

 

7.   Payments in Botswana

   Except with the permission of the Minister, no person shall do in Botswana any of the following things-

 

   (a)   make any payment to or for the credit of a person resident outside Botswana;

 

   (b)   make any payment to or for the credit of a person resident in Botswana by order or on behalf of a person resident outside Botswana; or

 

   (c)   place any sum to the credit of any person resident outside Botswana:

 

         Provided that where a person resident outside Botswana has paid a sum in or towards the satisfaction of a debt due from him, paragraph (c) shall not prohibit the acknowledgement or recording of the payment.

 

8.   Payments outside Botswana

   (1) Except with the permission of the Minister, no person resident in Botswana shall, subject to the provisions of this regulation, make any payment outside Botswana to or for the credit of a person resident outside Botswana.

   (2) Nothing in this regulation shall prohibit the doing of anything otherwise lawful by any person with any foreign currency obtained by him in accordance with the provisions of Part II or retained by him in pursuance of the consent of the Minister.

 

9.   Compensation deals

   (1) Except with the permission of the Minister, no person shall in Botswana, and no person resident in Botswana shall outside Botswana, make any payment to or for the credit of a person resident in Botswana as consideration for or in association with-

 

   (a)   the receipt by any person of a payment made outside Botswana or the acquisition by any person of property which is outside Botswana; or

 

   (b)   the transfer to any person, or the creation in favour of any person, of a right (whether present or future, and whether vested or contingent) to receive a payment outside Botswana or to acquire property which is outside Botswana.

   (2) Nothing in this regulation shall prohibit the making of any payment in accordance with the terms of any permission or consent granted under these Regulations.

PART IV
Securities
(regs 10-21)

 

10.   Interpretation of Part IV

   (1) In this Part-

 

   (a)   the expression "registered" includes inscribed;

 

   (b)   the expressions "registered in Botswana" and "registered outside Botswana" mean, respectively, registered in a register in, and registered in a register outside, Botswana;

 

   (c)   the expression "security which is registered in Botswana otherwise than in a subsidiary register" means a security which either-

 

      (i)   is registered in Botswana and is not, and cannot without the necessity for an entry in the register in Botswana become, registered outside; or

 

      (ii)   is registered both in Botswana and outside but on a transfer cannot, without the necessity for an entry in the register in Botswana, become registered outside in the name of the transferee; and

 

   (d)   the expression "a register" includes any book, file or index in which securities are registered.

   (2) For the purposes of any provision of this Part prohibiting the transfer of securities, a person shall be deemed to transfer a security if he executes any instrument of transfer thereof, whether effective or not, and shall be deemed to transfer it at the place where he executes the instrument.

   (3) References in this Part to the person holding a certificate of title or coupon shall be construed as references to the person having physical custody of the certificate of title or coupon:

   Provided that where the certificate of title or coupon is deposited with any person in a locked or sealed receptacle from which he is not entitled to remove it without the authority of some other person, that other person shall be deemed for the purposes of this provision to have the physical custody thereof.

   (4) In this Part the expression "holder"-

 

   (a)   in relation to a security transferable by means of a bearer certificate or to a coupon, includes the person holding the certificate or coupon; and

 

   (b)   in relation to a security which is registered in the name of a deceased person, or of any person who, by reason of bankruptcy, unsoundness of mind or any other disability is incapable of transferring the security, means the personal representative, trustee in bankruptcy or other person entitled to transfer the security.

   (5) The holder of a security or coupon shall be deemed for the purposes of this Part to be a nominee in respect thereof if, as regards the exercise of any rights in respect thereof, he is not entitled to exercise those rights except in accordance with instructions given by some other person, and references in this Part to the person for whom the holder of a security or coupon is a nominee shall be construed as references to the person who is entitled to give instructions, either directly or through the agency of one or more persons, as to the exercise of any rights in respect of the security or coupon and is not in so doing himself under a duty to comply with instructions given by some other person:

   Provided that-

 

   (i)   a person shall not by reason only that he has a controlling interest in a body corporate be deemed for the purposes of this subregulation to be entitled to give instructions to that body corporate as to the exercise of rights in respect of any security or coupon of which it is the holder; and

 

   (ii)   a person shall not be deemed to hold a security or coupon as a nominee by reason only that he holds it as trustee if he is entitled to transfer the security or coupon without permission from any other person.

   (6) A certificate of title shall not for the purposes of this Part be treated as in the custody of an authorized depository if either-

 

   (a)   the depository has no notice of the nature of the certificate; or

 

   (b)   the certificate is deposited with him in a locked or sealed receptacle from which he is not entitled to remove it without the authority of some other person.

   (7) Where a certificate of title outside Botswana is by this Part required to be kept in the custody of an authorized depository, it shall be deemed to be in the custody of an authorized depository if-

 

   (a)   by his direction or with his assent it is in the custody of some other person who holds it on behalf of and to the order of the authorized depository; and

 

   (b)   the certificate is not deposited with that other person in a locked or sealed receptacle from which he is not entitled to remove it without the authority of a person other than himself,

and where a certificate of title is by virtue of this subregulation deemed to be in the custody of an authorized depository, references in this Part to the depository parting with the certificate or a coupon belonging thereto shall be construed as references to his permitting the person having the actual custody thereof to part with it otherwise than to the depository, and references to his destroying the certificate or such a coupon shall be construed as references to his permitting it to be destroyed.

 

11.   Issue of securities

   (1) Except with the permission of the Minister, no person shall in Botswana issue any security or, whether in Botswana or elsewhere, issue any security which is registered or to be registered in Botswana, unless the following requirements are fulfilled-

 

   (a)   neither the person to whom the security is to be issued nor the person, if any, for whom he is to be a nominee is resident outside Botswana; and

 

   (b)   the prescribed evidence is produced to the person issuing the security as to the residence of the person to whom it is to be issued and that of the person, if any, for whom he is to be a nominee.

   (2) The subscription of the memorandum of association of a company to be formed under the Companies Act, by a person resident outside Botswana, or by a nominee for another person so resident, shall, unless he subscribes the memorandum with the permission of the Minister, be invalid insofar as it would on registration of the memorandum have the effect of making him a member of or shareholder in the company, so, however, that this provision shall not render invalid the incorporation of the company; and if, by virtue of this subregulation, the number of the subscribers of the memorandum, which subscribers on its registration become members of the company, is less than the minimum number required to subscribe the memorandum, the provisions of the Companies Act relating to the carrying on of business of a company, the number of whose members is reduced below the legal minimum, shall apply to the company as if the number of its members had been so reduced.

 

12.   Transfer of securities and coupons

   (1) Except with the permission of the Minister, a security registered in Botswana shall not be transferred, and a security not so registered shall not be transferred in Botswana, unless, in either case, the following requirements are fulfilled-

 

   (a)   neither the transferor nor the person, if any, for whom he is a nominee is resident outside Botswana;

 

   (b)   the transferor delivers to the transferee at or before the time of the transfer the prescribed declarations as to his residence and that of the person, if any, for whom he is a nominee;

 

   (c)   neither the transferee nor the person, if any, for whom he is to be a nominee is resident outside Botswana; and

 

   (d)   except where the security is registered in Botswana otherwise than in a subsidiary register, the Minister is satisfied that the requirements of paragraph (c) are fulfilled:

 

         Provided that-

 

      (i)   neither the transferee nor his agent shall be deemed to have committed an offence by reason only that the requirements of paragraph (a) were not fulfilled unless the transferee or, as the case may be, his agent, knew or had reason to believe that those requirements were not fulfilled; and

 

      (ii)   neither the transferor nor his agent shall be deemed to have committed an offence by reason only that any of the requirements of paragraphs (c) and (d) have not been fulfilled unless, in the case of a non-fulfilment of the requirements of the said paragraph (c), the transferor or, as the case may be, his agent, knew or had reason to believe that those requirements were not fulfilled.

   (2) Except with the permission of the Minister, a security not registered in Botswana shall not be transferred outside Botswana if either the transferor or the transferee, or the person, if any, for whom the transferor or transferee is or is to be a nominee, is resident in Botswana.

   (3) Except with the permission of the Minister, no coupon shall be transferred-

 

   (a)   in Botswana, if either the transferee or the person, if any, for whom he is to be a nominee is resident outside Botswana;

 

   (b)   outside Botswana, if either the transferor or the transferee, or the person, if any, for whom the transferor or transferee is or is to be a nominee, is resident in Botswana.

 

13.   Issue of bearer certificates and coupons

   Except with the permission of the Minister, no person shall, in Botswana, and no person resident in Botswana shall, outside Botswana, issue any bearer certificate or coupon or so alter any document that it becomes a bearer certificate or coupon.

 

14.   Substitution of securities and certificates outside Botswana

   Except with the permission of the Minister, no person in or resident in Botswana shall do any act with intent to secure-

 

   (a)   that a security which is-

 

       (i)   registered in Botswana; or

 

       (ii)   transferable by means of a bearer certificate in Botswana,

 

      becomes, or is replaced by, a security registered outside Botswana or a security transferable by means of a bearer certificate outside Botswana; or

 

   (b)   that a certificate of title to any other security is issued outside Botswana in substitution for or in addition to a certificate of title thereto which is in, or is or has been lost or destroyed in, Botswana.

 

15.   Payment of capital moneys outside Botswana

   Except with the permission of the Minister, no person resident in Botswana shall do any act with intent to secure that capital moneys payable on a security registered in Botswana are paid outside Botswana, or that, where the certificate of title to a security is in Botswana, capital moneys payable on the security are paid outside Botswana without production of the certificate to the person making the payment.

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