BOTSWANA ENERGY REGULATORY AUTHORITY: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Botswana Energy Regulatory Authority (Complaints Settlement Procedure) Regulations

Botswana Energy Regulatory Authority (Petroleum Products) Regulations

Botswana Energy Regulatory Authority (Quota Allocation) Order

Botswana Energy Regulatory Authority (Liquefied Petroleum Gas Operations) Regulations

BOTSWANA ENERGY REGULATORY AUTHORITY (COMPLAINTS SETTLEMENT PROCEDURE) REGULATIONS

(section 74(2)(c))

(19th February, 2021)

ARRANGEMENT OF REGULATIONS

REGULATION

PART I
Preliminary Provisions

    1.    Citation

    2.    Interpretation

    3.    Application

PART II
Complaint Procedure

    4.    Filing of complaint

    5.    Service of summons to present defence

    6.    Defence to complaint

    7.    Reply to defence

    8.    Third party procedure

    9.    Direction

    10.    Award against third party in default

    11.    Amendment to complaint and defence

PART III
Investigation and Mediation Procedure

    12.    Investigation of complaint

PART IV
Hearing Procedure

    13.    Hearing procedure quasi-judicial

    14.    Non-appearance of party

    15.    Application to intervene

    16.    Decision of Authority

    17.    Appeal

PART V
Limitation Period

    18.    Dismissal of proceedings instituted after period of limitation

    19.    Accrual of cause of action

    20.    Exclusion of time of proceedings in court without jurisdiction

    21.    Extension of period of limitation

PART VI
General Provisions

    22.    Taxation for costs

    23.    Other applications

        SCHEDULE 1

        SCHEDULE 2

S.I. 11, 2021.

PART I
Preliminary Provisions (regs 1-3)

1.    Citation

    These Regulations may be cited as the Botswana Energy Regulatory Authority (Complaints Settlement Procedure) Regulations.

2.    Interpretation

    In these Regulations, unless the context otherwise requires—

    "authorised representative" means a person duly authorised by a complainant or a respondent, to represent him or her in the conduct of a complaint and includes an attorney or a principal officer; and

    "code of practice on consumer protection" means a document prepared by a licensee and approved by the Authority, that sets out the procedure for receiving and settling a complaint.

3.    Application

    These Regulations shall govern the procedure related to the settlement of a complaint received by the Authority on the regulated sectors, and for other related matters.

PART II
Complaint Procedure (regs 4-11)

4.    Filing of complaint

    (1) A person may lodge with the Authority, a complaint against a licensee by completing Form A set out in Schedule 1, and the Authority shall acknowledge receipt of the complaint within two days of receipt of such complaint.

    (2) Notwithstanding the provisions of subregulation (1)—

    (a)    an authorised representative may, on behalf of a consumer or customer, lodge a complaint with the Authority; or

    (b)    a group of persons may file with the Authority a complaint by completing Form A set out in Schedule 1, and such complaint shall be submitted with—

        (i)    a list of the complainants’ names and signatures or thumb prints, and

        (ii)    minutes of the meeting resolving the filing of the complaint.

    (3) A complaint under subregulation (1) may be in any form of correspondence, electronic or otherwise.

    (4) A complainant shall, before filing a complaint under subregulation (1), show by completing a questionnaire that he or she—

    (a)    has notified the Authority in writing of his or her intention to commence the internal dispute settlement process;

    (b)    has exhausted all the licensee’s internal dispute settlement procedure in terms of the licensee’s code of practice on consumer protection; and

    (c)    is dissatisfied by the outcome of the licensee’s internal dispute settlement procedure under paragraph (b).

5.    Service of summons to present defence

    (1) The Authority shall within seven days after receipt of a complaint under regulation 4, summon the respondent in terms of Form B set out in Schedule 1 to present his or her defence.

    (2) The summons in subregulation (1) shall be served on the respondent by way of—

    (a)    personal delivery to the respondent or his or her representative, and the respondent or his or her representative shall acknowledge receipt by signing and returning the summons to the Authority within 14 days of receipt of such summons;

    (b)    registered mail with return receipt; or

    (c)    publication in two newspapers of wide circulation in Botswana where the Authority has received written proof stating that—

        (i)    the respondent is avoiding the service under paragraph (a), or

        (ii)    for any other reason the summons cannot be served in the ordinary way.

6.    Defence to complaint

    (1) A respondent shall within 14 days of receipt of the summons under regulation 5, present to the Authority a defence to the complaint which may include a counterclaim or claim for set-off.

    (2) Where the respondent denies an allegation of fact in the complaint, he or she shall not do so evasively, but shall answer the point of substance.

    (3) Where the respondent does not specifically or by necessary implication deny any allegation of fact in the complaint, the allegation shall be taken to be admitted by the respondent.

    (4) The Authority may require any fact admitted under subregulation (3), to be proven otherwise than by such admission.

    (5) Where a respondent fails to present a defence, the Authority shall deem the respondent to have waived his or her right to appear and participate in the proceedings, and the Authority shall proceed with the hearing ex parte.

    (6) Notwithstanding the provisions of subregulation (5), the respondent may make an application showing sufficient cause why he or she has failed to participate in the proceedings upon showing cause for failure to make such a defence.

7.    Reply to defence

    Upon receipt of a defence under regulation 6(1) from the respondent, the complainant may prepare and submit to the Authority a reply within seven days, or such period as the Authority may determine after receipt of such defence.

8.    Third party procedure

    (1) Where a respondent makes a claim against a person who is not party to a complaint, for any—

    (a)    contribution or indemnity; or

    (b)    relief or remedy relating to the subject matter of the complaint and substantially the same, as a relief or remedy claimed by the complainant,

the respondent may apply to the Authority to present a third party notice.

    (2) An application under subregulation (1) shall be in writing and shall state the—

    (a)    name and address of the third party;

    (b)    nature of the claim made by the complainant;

    (c)    stage which the proceedings in the complaint have reached; and

    (d)    nature of the claim made by the applicant against the third party, and the relation of the respondent’s claim to the complainant’s claim against the applicant.

    (3) Where—

    (a)    an application under subregulation (1) is received;

    (b)    the Authority is satisfied that the respondent’s claim against the third party is in respect of a matter referred to in subregulation (1); and

    (c)    having regard to all the circumstances of the complaint, it is reasonable and proper to grant leave to the respondent to present a third party notice,

the Authority shall, upon such terms and conditions, grant leave to the respondent to present a third party notice.

    (4) A third party notice in Form C set out in Schedule 1, shall state the—

    (a)    nature of the complainant’s claim against the respondent;

    (b)    nature of the respondent’s claim against the third party;

    (c)    relief claimed by the respondent against the third party;

    (d)    period within which the third party may present his or her defence; and

    (e)    consequences of failure by the third party to present his or her defence within such period.

    (5) The Authority shall ensure that a copy of a third party notice presented to it is served to the third party in accordance with the procedure under regulation 5(2).

    (6) Where a third party notice has been served, the third party shall, where he or she disputes the claim, present his or her defence to the Authority within 14 days of service of the notice.

9.    Direction

    (1) Where a third party has presented a defence, the Authority may—

    (a)    fix a date for the giving of directions; and

    (b)    on such date, if satisfied that there is a proper question to be heard as to the liability of the third party in respect of the claim made against him or her by the respondent,

order the question of such liability to be heard in such manner, at or after the hearing of the complaint, as the Authority may direct.

    (2) Where the Authority is not satisfied under subregulation (1), the Authority may make such order as the nature of the complaint may require.

10.    Award against third party in default

    (1) Where a third party—

    (a)    does not present his or her defence within the time specified under regulation 8(6); or

    (b)    who has presented a defence does not appear on the date fixed for the giving of directions,

the respondent presenting a third party notice may apply ex parte to the Authority for an award against the third party, in respect of any contribution, indemnity or relief claimed in the notice.

    (2) The Authority may, on application by the respondent in terms of subregulation (1), issue an award against the third party as the nature of the complaint may require, or as prescribed by the applicable laws.

11.    Amendment to complaint and defence

    (1) A party to the proceedings may upon providing sufficient cause, be allowed to amend a complaint, defence or reply, provided that the other party is afforded an opportunity to make a response not later than 14 days prior to the hearing.

    (2) A party to the proceedings, upon being allowed to amend a complaint, defence or reply in terms of subregulation (1), shall amend such a complaint, defence or reply within seven days, or such a period that the Authority may determine.

PART III
Investigation and Mediation Procedure (reg 12)

12.    Investigation of complaint

    (1) The Authority shall investigate a matter—

    (a)    upon receipt of a defence under regulation 6 from the respondent;

    (b)    upon receipt of a reply under regulation 7 from the complainant; or

    (c)    where it comes to the attention of the Authority that the complainant has an interest in the matter to which the complaint relates, and the complaint is not frivolous or vexatious.

    (2) Where the Authority finds the complainant’s complaint to be frivolous or vexatious, the Authority may dismiss the complaint.

    (3) Where it appears to the Authority at any time during or after the investigation that there exists a meritorious complaint, and the licensee has not considered the complaint or has not considered it adequately, the Authority may require the licensee to consider or reconsider the complaint within 14 days.

    (4) The Authority may institute a mediation process, and an officer of the Authority or any other person nominated by the parties may act as a mediator.

    (5) Where an amicable settlement has been reached, it shall be—

    (a)    written in terms of Form D set out in Schedule 1;

    (b)    signed by each party; and

    (c)    filed by the Authority for registration.

    (6) The settlement reached under subregulation (5) shall upon being filed by the Authority, be deemed to be the award of the Authority.

    (7) Each party shall furnish the Authority with information or documentation which the Authority may require in discharging its duty in accordance with the provisions of these Regulations.

    (8) Any person who refuses to furnish the Authority with information or documentation under subregulation (7) commits an offence and is liable to a fine not exceeding—

    (a)    P30,000 or imprisonment for a term not exceeding five years, or to both, for a natural person; or

    (b)    10 per cent of annual turnover for a corporate body.

PART IV
Hearing Procedure (regs 13-17)

13.    Hearing procedure quasi-judicial

    (1) The complaint hearing proceedings by the Authority shall be quasi-judicial in nature.

    (2) The Authority shall issue a summons in Form E set out in Schedule 1 to each party to the proceedings.

    (3) A party may appear in person or appoint an authorised representative to appear on behalf of the party at the hearing.

    (4) The Authority may during the hearing require—

    (a)    any person to produce any information the Authority considers relevant; or

    (b)    the attendance of any person to give evidence and produce any document that may be in his or her custody.

    (5) For the purposes of this regulation, "hearing" means all processes required for the Authority’s determination and includes—

    (a)    oral and written submissions made by any party;

    (b)    evidence adduced by each party either oral or written; or

    (c)    discovery of documents.

    (6) Where any matter of procedure has not been provided for under these Regulations, the Authority may during the hearing, regulate its own procedure.

14.    Non-appearance of party

    (1) The Authority may make an order it deems fit where either party does not appear for a hearing, including dismissal of the complaint.

    (2) Where a respondent fails to appear when a complaint is called for hearing, and upon an application by a complainant, the Authority may issue an order for ex parte proof of the claim made by the complainant.

15.    Application to intervene

    (1) A person who has sufficient interest in a complaint before the Authority may at any stage before the conclusion of the hearing, file an application to the Authority to intervene in the proceedings.

    (2) An application to intervene shall state the—

    (a)    title of the hearing to which the application relates;

    (b)    name, postal and physical address of the applicant;

    (c)    address for service;

    (d)    concise statement of the matter in issue affecting the applicant;

    (e)    party whose position the applicant intends to support; and

    (f)    grounds and documents in support of the application.

    (3) The Authority shall notify each party to the proceedings of the application under subregulation (1).

    (4) A party may file an objection to the application under subregulation (1) within seven days of receipt of the Authority’s notice.

    (5) The Authority shall ascertain whether the applicant has sufficient interest in the complaint, and where the Authority is satisfied that the applicant has sufficient interest, the Authority shall grant the application on such terms and conditions as it may deem fit.

    (6) Where the application is granted, the applicant shall within seven days, file a statement of intervention stating the—

    (a)    facts and arguments supporting the intervention;

    (b)    relief sought; and

    (c)    list of documents annexed and a copy of every document upon which the intervener relies.

    (7) A party to the proceedings may within seven days, separately or jointly, file with the Authority a reply to the statement of intervention.

16.    Decision of Authority

    At the end of the hearing, the Authority shall—

    (a)    impose a fine on any party;

    (b)    require a party to provide a product or service on specified terms and conditions;

    (c)    require a party to pay costs of the other party, a person appearing at the hearing or a person producing documents;

    (d)    dismiss a complaint;

    (e)    order the issue of a refund; or

    (f)    provide such other relief or remedy as may be deemed reasonable and necessary.

17.    Appeal

    A party aggrieved by the decision of the Authority under these Regulations, may within 30 days, appeal to the High Court.

PART V
Limitation Period (regs 18-21)

18.    Dismissal of proceedings instituted after period of limitation

    (1) Subject to the provisions of these Regulations, a complaint under Schedule 2, which is instituted after the period of limitation has prescribed, shall be dismissed.

    (2) Where after the institution of a complaint, a person is made a party either as a complainant, respondent or third party, the complaint shall as regards such person, be deemed to have been instituted on the date on which such person is made a party.

19.    Accrual of cause of action

    (1) Subject to the provisions of these Regulations, the right of action in respect of any proceedings shall accrue on the date on which the cause of action arises.

    (2) The period of limitation referred to under regulation 18, in relation to any proceedings, shall commence from the date on which the right of action for such a proceeding accrues.

20.    Exclusion of time of proceedings in court without jurisdiction

    Where the proceedings are founded upon the same cause of action and in good faith, and the period of limitation set out in Schedule 2 for any complaint is computed, the time during which the complainant has brought civil proceedings against the respondent in a court which has no jurisdiction, shall be excluded.

21.    Extension of period of limitation

    (1) A complainant may make an application in writing to the Board, to request an extension of a period of limitation set out in Schedule 2.

    (2) The Authority may, where it is of the opinion that in view of the application under subregulation (1), it is just and equitable to do so, extend the period of limitation in respect of any complaint, for a period not exceeding the period of limitation set out in Schedule 2 for such complaint.

PART VI
General Provisions (regs 22-23)

22.    Taxation for costs

    (1) Where a party has been awarded costs and wishes to recover the costs, he or she shall lodge a bill of costs for taxation, and the Authority shall tax such bill accordingly.

    (2) A party who has been awarded costs under subregulation (1), shall file with the Authority a bill of costs in writing and shall include copies of the relevant evidence such as payment vouchers, receipts, invoices or tickets.

    (3) A party who is aggrieved by the decision of the Authority under subregulation (1), may seek redress from the Board in writing stating his or her case.

23.    Other applications

    A party may make any other application to the Authority in writing, stating the reasons in support of the said application.

SCHEDULE 1

FORM A
COMPLAINT FORM

(regs. 4(1) and 4(2)(b))

FORM B
SUMMONS

(reg. 5(1))

FORM C
THIRD PARTY NOTICE

(reg. 8(4))

FORM D
SETTLEMENT

(reg. 12(5))

FORM E
SUMMONS TO APPEAR

(reg. 13(2))

SCHEDULE 2
PERIOD OF LIMITATION

(reg. 18(1))

PART I
COMPLAINTS

PART II
APPLICATIONS

BOTSWANA ENERGY REGULATORY AUTHORITY (LIQUEFIED PETROLEUM GAS OPERATIONS) REGULATIONS

(section 74)

(23rd September, 2022)

ARRANGEMENT OF REGULATIONS

REGULATION

PART I
Preliminary Provisions

    1.    Citation

    2.    Interpretation

    3.    Application

PART II
Licensing Procedures

    4.    Types of licences

    5.    Application for licence for exportation, importation and distribution of LPG

    6.    Application for construction of LPG facility licence

    7.    Licensing requirements

    8.    Publication of licence applications

    9.    Issuance of licence

    10.    Duration of licence

    11.    Application for renewal of licence

    12.    Application for transfer of licence

    13.    Change of name

    14.    Change of shareholding structure

PART III
General Obligations of Licensee

    15.    General obligations

    16.    Protection of lives and property

    17.    Compensation for loss suffered

    18.    Insurance

    19.    Maintenance of records, provision and disclosure of information

    20.    Customer service standards

PART IV
Environmental Protection

    21.    Compliance with environmental laws and standards

    22.    Sanctions for events of violation of environmental laws

PART V
Technical Obligations of a Licensee

    23.    Compliance with approved standards and specifications

    24.    Prohibition on use of cylinders and seals

    25.    Prohibition to decant

    26.    Prohibition on under-filling

    27.    Use of calibrated weighing scales

    28.    Marking of cylinders

    29.    Loading and off-loading of LPG

    30.    Cylinder sealing

    31.    Deceptive trade practices

    32.    Storage of LPG

    33.    Provision of fire protection equipment

    34.    Development of emergency plan

    35.    Decommissioning procedure

    36.    Site restoration

    37.    Performing LPG installations

PART VI
Compliance and Enforcement

    38.    Power to enter and close regulated facility, building or premises

    39.    Inspection of regulated facility

    40.    Obligation of inspector during inspection

    41.    Prohibited acts against inspectors

    42.    Issuance of Compliance Orders

    43.    Notification of offences

PART VII
Miscellaneous Provisions

    44.    Offences and penalties

    45.    Approved standards

    46.    Transitional provisions

        SCHEDULE 1

        SCHEDULE 2

        SCHEDULE 3

S.I. 116, 2022.

PART I
Preliminary Provisions (regs 1-3)

1.    Citation

    These Regulations may be cited as the Botswana Energy Regulatory Authority (Liquefied Petroleum Gas Operations) Regulations.

2.    Interpretation

    In these Regulations, unless the context otherwise requires—

    "approved standard and specification" means any specification or standard in relation to an LPG product applied by the Authority and as approved pursuant to the Standards Act (Cap. 43:07);

    "bulk consumer" means a consumer who buys LPG in bulk quantity for own use or any use other than re-selling;

    "bulk quantity" means a single container of LPG of not less than 250 kilograms;

    "BURS" means the Botswana Unified Revenue Service established under section 3 of the Botswana Unified Revenue Service Act (Cap. 53:03);

    "Certification Authority" means the Botswana Bureau of Standards which is established under section 3 of the Standards Act;

    "Companies Intellectual Property Authority" means the authority established under section 3 of the Companies Intellectual Property Authority Act (Cap. 42:13);

    "Competition and Consumer Authority" means the Competition and Consumer Authority established under section 4 of the Competition Act (Cap. 46:09);

    "consumer" means any person who is supplied with LPG for own use or any use other than re-selling;

    "consumer installation" means any installation involving pipe-works for the distribution of LPG, bulk containers, or cylinders of aggregate quantity not less than 250 kg, that is intended for own use or any use other than re-selling by the consumer;

    "consumer installation operations" means an activity necessary to operate a consumer installation facility and includes all activities in respect of such facility and any activity reasonably required in connection with obtaining, handling, possession, storage or dispensing of LPG at such facility;

    "cylinder" means any portable or stationary pressure container, together with all of its permanent supports and attachments installed for the storage and handling of LPG;

    "dangerous situation" means a situation involving LPG that—

    (a)    endangers the safety or health of a person, or the safety of a person’s property; or

    (b)    creates an eminent risk of significant environmental harm;

    "dealer" means any person conducting LPG retail business;

    "decant" means transfer of LPG from one prescribed container to another;

    "filling or refilling center" means a facility operated by a wholesaler duly authorised by the Authority to fill and decant LPG cylinders;

    "incident" means—

    (a)    an event that involves the leakage of LPG from a transport vessel, storage vessel, cylinder filling, dispensing or off-loading activities;

    (b)    death or personal injury occurring as a result of the conduct of a regulated activity or LPG use or handling;

    (c)    a fire or an event incidental to a fire resulting from the conduct of a regulated activity or LPG use or handling;

    (d)    LPG product shortage; or

    (e)    any other significant event that may adversely affect the conduct of a regulated activity or LPG retail business;

    "inspector" means an officer of the Authority or an agent of the Authority appointed by the Authority to perform the functions of inspection as required under the Act and regulated sector legislation;

    "installer" means a person who performs an installation of pipe-work, storage vessels, containers, or any other equipment for the purposes of transporting, distribution, storage, handling or use of LPG;

    "leak" means any unwanted or accidental release of LPG into the air or into any structure or thing;

    "licensed installer" means an installer who is duly authorised by a recognised body or registered the Authority as an LPG installer or contractor;

    "Liquefied Petroleum Gas (LPG)" means any material having a vapour pressure for commercial propane and composed predominantly of the following hydrocarbons, either by themselves or as mixtures, propane, propylene, butane and butylene;

    "LPG (Wholesale and Retail Business) Operational Guidelines" means the manual prepared by the Authority with instructions on how LPG wholesale and retail business is to be conducted;

    "LPG retail business" means an activity necessary for storing, handling and selling LPG in cylinders to a consumer through a retail outlet;

    "LPG wholesale business" means the importation of LPG in bulk quantity, filling or re-filling of LPG, handling, storage and selling of LPG to a dealer or bulk consumer;

    "operator" means a person who is responsible for the day to day activities of a regulated activity, whether such person is located on the relevant premises during business hours or is the owner of such regulated activity and who for the purposes of these Regulations, shall be deemed to have the authority and the ability to—

    (a)    grant an inspector access to regulated activity to facilitate the performance of the inspector’s duties;

    (b)    detect any defect weakness within a regulated activity and make an authoritative judgment as to its suitability for further use;

    (c)    answer questions raised by an inspector; and

    (d)    witness the inspection process;

    "registered accountant" means a person registered as a registered accountant under the Botswana Institute of Accountants established under the Accountants Act (Cap. 61:05);

    "registered engineer" means a person registered as a registered engineer under the Engineers Registration Act (Cap. 61:06);

    "registered quantity surveyor" means a person registered as a registered quantity surveyor under the Quantity Surveyors’ Act (Cap. 61:10);

    "regulated activity" means any activity related to LPG including wholesale, distribution, storage, transportation or retail;

    "regulated facility" includes the LPG receiving terminal, refilling center, bullets, spheres, storage tanks, cylinders, distribution pipe-work, transportation equipment, associated equipment, accessories and buildings used to conduct a regulated activity;