Namibia
Sign in
Personal
Products and Services
Products and Services
Ways to Bank
Ways to Bank
Business
Products and Services
Products and Services
Ways to Bank
Ways to Bank
This Content Component encountered an error

Banking Regulations

Banking Institutions Act

(2)    Different dates may be determined under subsection (1) in respect of different provisions of this Act.
BANKING INSTITUTIONS ACT 2 OF 1998
[ASSENTED TO 20 FEBRUARY 1998]    [DATE OF COMMENCEMENT: 1 APRIL 1998]
(Signed by the President)
as amended by
Banking Institutions Amendment Act 14 of 2010 GN 34 in GG 4679 of 1 April 2011
ACT

To consolidate and amend the laws relating to banking institutions; to provide for the authorisation of a person to conduct business as a banking institution, and for the control, supervision and regulation of banking institutions; to protect the interests of persons making deposits with banking institutions; to provide for the winding-up or judicial management of banking institutions and for the cancellation of authorisations; and to provide for matters incidental thereto.
ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY PROVISIONS
1    Definitions
2    Application of Act

PART II
ADMINISTRATION OF ACT
3    Guidelines, circulars or notices by the Bank
[Sec 3 substituted by sec 3 of Act 14 of 2010.]
4    Limitation of liability

PART III
AUTHORISATION TO ESTABLISH A BANKING INSTITUTION
5    Prohibition on conducting of banking business by unauthorised persons
6    Investigations
7    Repayment of monies by unauthorised persons
8    Name of banking institution
9    Prerequisite for conducting banking business
[Sec 9 substituted by sec 3 of Act 14 of 2010.]
10    Application for authorisation to establish a banking institution
11    Granting or refusal of application for authorisation and certificate of authorisation to conduct banking business
12    Duration and conditions of authorisation
12A    Application for registration as controlling company [Sec 12A inserted by sec 8 of Act 14 of 2010.]
 
12B    Granting or refusal of application for registration as controlling company
[Sec 12B inserted by sec 8 of Act 14 of 2010.]
12C    Cancellation by Bank of registration of controlling company
[Sec 12C inserted by sec 8 of Act 14 of 2010.] 12D    Investment by controlling company
[Sec 12D inserted by sec 8 of Act 14 of 2010.] 12E    Restructuring within group of companies
[Sec 12E inserted by sec 8 of Act 14 of 2010.]
13    Annual fees
14    Subsidiaries, branch offices, representative offices and other interests of banking institution
15    Cancellation of authorisation
16    Repayment of deposits upon cancellation of authorisation
17    Cancellation of authorisation upon winding-up
18    Publication of information relating to banking institutions
19    Representative office of foreign banking institution 19A    Branches of foreign banking institutions
[Sec 19A inserted by sec 11 of Act 14 of 2010.]
19B    Application of this Act to branches of foreign banking institutions
[Sec 19B inserted by sec 11 of Act 14 of 2010.] PART IV
SHAREHOLDING IN BANKING INSTITUTIONS
20    Restriction on shareholding and changes in shareholding
21    Shareholder's register and registration of shares
22    Furnishing of information by shareholders
23    Absence of wrongful intent
24    Effects of registration of shares contrary to Act
25    Restriction of right to control banking institution
26    Prohibitions and restrictions

PART V
PRUDENTIAL REQUIREMENTS AND LIMITATIONS
27    Standards of corporate behaviour
28    Minimum capital funds
28A    Minimum capital funds in respect of banking group [Sec 28A inserted by sec 15 of Act 14 of 2010.]
29    Composition of capital funds
 
30    Provision to be made for certain matters
31    Minimum liquid assets
32    Restriction on dividends
33    Minimum local assets
34    Large exposures and concentrations of credit
35    Lending against own shares or debt instruments
36    Exposure to directors, to officers with managerial responsibilities or to shareholders to be secured
37    Terms of exposure to directors, officers and shareholders
38    Exposure to holding companies, subsidiaries and affiliates
39    Restriction on commercial activities
40    Limitation on investment in property

PART VI
DIRECTORS, PRINCIPAL OFFICERS AND AUDITORS
41    Directors and principal officers and executive officers of banking institutions
[Sec 41substituted by sec 22 of Act 14 of 2010.]
42    Audit committee
43    Appointment of auditor
44    Disqualification for appointment as auditor
45    Duties and functions of auditor

PART VII  SUPERVISION BY BANK
46    Financial and other records
[Sec 46 substituted by sec 25 of Act 14 of 2010.]
47    Financial statements
48    Disclosure of paid-up share capital
49    Furnishing of certain statements, notices, returns and information
50    Reporting of certain transactions by banking institutions
51    Extension of time
52    Examination by Bank
[Sec 52 substituted by sec 28 of Act 14 of 2010.]
53    Production of records and furnishing of information
54    Approval of special resolutions, amalgamation and transfer of assets and liabilities
 
[Sec 54 amended by sec 30 of Act 14 of 2010.]
55    Undesirable practices 55A    Pyramid schemes
[Sec 55A inserted by sec 32 of Act 14 of 2010.]
56    Powers of the Bank regarding banking institutions
57    Additional powers of Bank to apply for capital reduction or to acquire shares in a banking institution
58    Winding-up or judicial management
59    Proof and repayment of claims
[Sec 59 substituted by sec 35 of Act 14 of 2010.]
60    Unclaimed monies or property after winding-up
PART VIII GENERAL PROVISIONS
61    Agreements restricting competition
62    Prohibition to accept deposits by insolvent banking institutions
63    Insurance against loss due to negligence or dishonesty
64    Confidentiality and secrecy
65    Publication of information
66    International supervisory co-operation
67    Minors as depositors
68    Exemption of certain transactions from stamp duties
69    Application of other laws to banking institutions
70    External bureaux
71    Regulations and determinations
72    Offences and penalties
73    Offences by banking institutions, officers or agents 73A    Imposition of administrative fines by Bank
[Sec 73A inserted by sec 40 of Act 14 of 2010.]
74    Repeal of laws and savings
75    Short title and commencement Schedule
 


1    Definitions
 
PART  I PRELIMINARY PROVISIONS (ss 1-2)
 
(1)    In this Act, unless the context otherwise indicates-
"affiliate", in relation to a person, means any company, association, syndicate, partnership or other body of persons, corporate or unincorporate, in which-
(a)    20 percent or more of any class of voting shares or other voting participation is directly or indirectly owned or controlled by the person, or is held by the person with power to vote; or
(b)    the election of the majority of directors is in any manner controlled by the person;
"associate", in relation to a person, but subject to subsection (2), includes-
(a)    the holding company of such person;
(b)    a subsidiary company or a fellow subsidiary of such person;
(c)    a subsidiary company of any of the companies referred to in paragraphs (a) or (b)
or in this paragraph;
(d)    a substantial shareholder of such person or a substantial shareholder of such person's holding company;
(e)    a business partner of-
(i)    such person;
(ii)    such person's substantial shareholder;
(iii)    a substantial shareholder of such person's holding company; or
(iv)    any of the companies referred to in paragraphs (a), (b) or (c);
(f)    any person who is an officer of-
(i)    such person;
(ii)    any of the companies referred to in paragraphs (a), (b) or (c); or
(iii)    any shareholder or business partner referred to in paragraph (d) or (e);
"auditor" means an auditor referred to in the Public Accountants and Auditors Act, 1951 (Act 51 of 1951);
"authorised" means authorised under this Act to conduct banking business;
"Bank" means the Bank of Namibia referred to in section 4 of the Bank of Namibia Act, 1997;
"banking business" means the business that consists of-
(a)    the regular receiving of funds from the public; and
(b)    the using of funds referred to in paragraph (a), either in whole, in part or together with other funds, for the account and at the risk of the person conducting the business-
(i)    for loans or investments;
(ii)    for any other purpose or activity authorised by law or by customary banking practice in terms of this Act; or
(iii)    for such activities that the Minister, in consultation with the Bank has, by notice in the Gazette, determined to be an authorised manner of using funds for the purpose of conducting banking business;
"banking group", means a group consisting of two or more persons, whether natural or juristic persons, that are predominantly engaged in financial activities, and one or more of which is a banking institution and-
(a)    each of which person is an associate of any one of the others; or
(b)    which persons are so interconnected that should one of them experience financial difficulties, another one or all of them would likely be adversely affected, irrespective of whether any of those persons is domiciled in the same country as any of the others;
[Definition of "banking group" inserted by sec 1(a) of Act 14 of 2010.]
"banking institution" means a public company authorised under this Act to conduct banking business, or deemed to be so authorised;
"business practice" includes any agreement, arrangement or understanding, whether or not enforceable under any law, entered into between two or more persons, or
 
any scheme, practice or method of trading, including any method or manner of marketing or distribution;
"capital funds" has the meaning determined by the Bank under section 28;
"claim", with regard to a person, means the obligation of any other person to pay or to deliver to such person, any value in accordance with an agreement or the law establishing such claim;
"closed day" means a Sunday or a public holiday referred to in, or declared under, the Public Holidays Act, 1990 (Act 26 of 1990);
"close relative", in relation to a person, means-
(a)    the spouse of such person, or any other person who has a relationship with such person as a spouse in a union in terms of the customary law;
(b)    such person's child, step-child, adopted child, brother, sister, step-brother, step-sister, parent or step-parent; or
(c)    the spouse, or any person who has a relationship as a spouse in a union in terms of the customary law, of any of the persons mentioned in paragraph (b);
"Companies Act" means the Companies Act, 1973 (Act 61 of 1973); "company" means a company registered under the Companies Act; "controlling company" means a company registered under section 12A as a
controlling company in respect of a banking institution, and "holding company" has a corresponding meaning;
[Definition of "controlling company" substituted by sec 1(b) of Act 14 of 2010.]
"core banking systems" means all core systems that contain records and documents covering core functional areas of a banking institution, and include all IT systems and subsystems keeping and maintaining records and documents relating to the business, affairs, transactions, conditions, property, assets or liabilities of a banking institution;
[Definition of "core banking systems" inserted by sec 1(c) of Act 14 of 2010.]
"day" means a calendar day, excluding a closed day;
"debt instrument" includes debentures as defined in section 1(1) of the Companies Act, or any other security or document issued by a company, evidencing or acknowledging the liability of a person or the company to repay an amount of money specified in the security or other document, subject to the conditions whereto the security or document is issued;
"deposit", when used as a noun, means an amount of money paid by one person to any other person, or by a customer to a banking institution, subject to an agreement in terms of which the full amount of money, or any part thereof, will, conditionally or unconditionally, and with or without interest or a premium, be repaid to such person or to the customer on demand or at a specified or unspecified date, or after a predetermined period of time, or after a predetermined period of notice of withdrawal, or subject to an agreement entered into by the parties concerned, notwithstanding that such payment is limited to a fixed amount or that a transferable or non-transferable certificate or other instrument providing for the repayment of the amount is issued in respect of such amount, but a deposit shall not include an amount of money-
(a)    paid as an advance, or as a part payment in terms of a contract for the sale, letting, hiring or other provision of movable or immovable property or for services;
(b)    paid as security for the performance of a contract or as security in respect of any loss which may result from the non-performance of a contract;
(c)    paid as security for the delivery or return of any movable or immovable property;
(d)    paid by a holding company to its subsidiary, or by a subsidiary to its holding company, or by one subsidiary to a fellow subsidiary; or
(e)    paid by a person who, at the time of such payment-
(i)    is a close relative of the person to whom such money is paid;
 
(ii)    is a director or an officer concerned in the management of the person to whom such money is paid; or
(iii)    is a close relative of a director or of an officer referred to in subparagraph (ii), and "depositor" shall have a corresponding meaning;
"determination" means a determination made by the Bank under this Act and published by notice in the Gazette, and "determine" has a corresponding meaning;
"director" means a director as defined in section 1(1) of the Companies Act;
"executive officer" means any person, by whatever name described, who could exercise significant influence, and is in the direct employment of, or acting for, or by arrangement with the banking institution, and is principally responsible for the management and conduct of the risk management, compliance, accounting, auditing, secretarial, treasury and operation functions, and includes a chief executive officer, deputy chief executive officer, and any manager of a significant business unit;
[Definition of "executive officer" inserted by sec 1(d) of Act 14 of 2010.]
"exposure" means any form of exposure, including-
(a)    loans, advances and irrevocable commitments to lend;
(b)    leasing;
(c)    guarantees;
(d)    any other form of finance; or
(e)    any other exposure contemplated for the purpose of capital requirements under section 28;
"fellow subsidiary" means, in relation to a company which is a subsidiary of a holding company, any other company which is a subsidiary of such holding company;
"financial records", includes banking and accounting records;
[Definition of "financial records" inserted by sec 1(e) of Act 14 of 2010.]
"foreign banking institution" means a person authorised or registered to conduct banking business under the laws of any state, country, colony or territory other than Namibia, and which conducts banking business in such other state, country, colony or territory;
"High Court" means the High Court of Namibia constituted by Article 80(1) of the Namibian Constitution and referred to in the High Court of Namibia Act, 1990 (Act 16 of 1990);
"holding company" means a holding company as defined in section 1(4) of the Companies Act;
"incorporated", in relation to a banking institution, means registered as a public company under the Companies Act;
"insolvent", in relation to a banking institution, includes a banking institution-
(a)    of which the liabilities exceed its assets; or
(b)    which has committed an act of insolvency in terms of the Insolvency Act, 1936 (Act 24 of 1936);
"managerial responsibility" means the responsibility for the control or administration of the business or affairs of a banking institution, or any part of such business or affairs;
"merger" means when one or more banking institutions or controlling company directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another banking institution or controlling company, in any means including-
(a)    the purchase or lease of shares, an interest, or assets of that other banking institution or controlling company; or
(b)    the amalgamation or other combination with any other banking institution or controlling company;
[Definition of "merger" inserted by sec 1(g) of Act 14 of 2010.]
"Minister" means the Minister of Finance;
 
"officer", in relation to a company, means any director having executive responsibilities in the company, or any manager, secretary or other employee of the company, but does not include a juristic person holding any such position;
"person" means a natural or juristic person, and includes a partnership; [Definition of "person" inserted by sec 1(f) of Act 14 of 2010.]
"prescribe" means prescribe by regulation;
"principal officer", in relation to a banking institution or controlling company, means the executive chairperson, the managing director, the executive director, the chief executive officer or the manager, or any other person, by whatever title referred to, who is chiefly responsible for the management of the affairs of the banking institution or controlling company in Namibia, and whose name and title the banking institution or controlling company from time to time in writing advises to the Bank, and includes a person who, in terms of section 10, applies for an authorization to establish a banking institution;
[Definition of "principal officer" substituted by sec 1(h) of Act 14 of 2010.]
"receiving funds from the public", for the purpose of ascertaining if a person is conducting banking business, means that the person-
(a)    accepts deposits or similar funds from the public, including from employees, members, shareholders or partners of the person, as a regular feature of his or her business;
(b)    solicits or advertises for deposits or similar funds;
(c)    obtains, as a regular feature of his or her business, money through the sale of an asset to a person other than to a banking institution or a statutory body or other institution referred to in section 2(2), subject to an agreement in terms of which the seller undertakes to repurchase from the buyer at a future date the asset sold, or any other asset;
(d)    conducts any other activity which the Bank, by notice in the Gazette, has declared to be the acceptance of deposits from the public; or
(e)    ......
[Para (e) deleted by sec 1(i) of Act 14 of 2010.]
"regulations" mean the regulations made under this Act;
"representative office", in respect of a foreign banking institution, means an office of the foreign banking institution in Namibia;
"risk weighting" means attaching a weight of one, or a fraction of one, to each class of assets or other exposures of a banking institution in accordance with the determinations by the Bank for the purpose of calculating the minimum capital requirements under section 28;
"subsidiary" means a subsidiary company as defined in section 1(3) of the Companies Act, and includes a subsidiary company of a subsidiary;
"substantial shareholder" means any person or registered shareholder that, directly or indirectly, holds, controls or is entitled to exercise the voting rights in not less than five per cent of any class of voting shares of a company, and for the purpose of determining whether a person is a substantial shareholder-
(a)    a person that controls a substantial shareholder is deemed to be a substantial shareholder; and
(b)    any shares owned or controlled, or the voting rights of which are exercisable, by a person's close relative is [sic] deemed to be owned or controlled by such person; and
[Definition of "substantial shareholder" substituted by sec 1(j) of Act 14 of 2010.]
"this Act" includes the regulations and the determinations.
(2)    For the purposes of-
(a)    paragraph (e) of the definition of "associate" in subsection (1), a business partner means a business partner who is able, by virtue of his or her own shareholding, to contribute to or to affect the influence which the person, substantial shareholder or
 
company referred to in that paragraph is, in his or her or its capacity as a shareholder; and
(b)    paragraph (f) of the definition of "associate" in subsection (1), an officer means an officer who is able to contribute to or to affect the influence which the person, company, shareholder or business partner referred to in that paragraph is, by virtue of his or her or its shareholding,
able or in a position to exercise.
(3)    Any application or notice made or given, or any other communication, in terms of or pursuant to this Act, shall-
(a)    be in the official language of Namibia; and
(b)    unless otherwise provided for in this Act, be in writing.
2    Application of Act
(1)    This Act, in so far as it provides for a limitation on the fundamental freedoms contemplated in Article 21 of the Namibian Constitution by authorising restrictions relating to the conducting of business, is, unless otherwise provided, enacted upon the authority conferred by that Article.
(2)    This Act does not apply to-
(a)    the Bank, except insofar as it confers upon the Bank the power to perform the functions contained in this Act;
(b)    any international bank or international financial organisation, or any associated or affiliated bank or financial organisation of such international bank or international organisation, of which the Government of Namibia or the Bank is a member;
(c)    ......
(d)    the Agricultural Bank of Namibia, established by the Agricultural Bank of Namibia Act, 2003 (Act 5 of 2003);
(e)    to (h) inclusive ......
(i)    any building society registered under the Building Societies Act, 1986 (Act 2 of 1986);
(j)    ......
(k)    ......
[Para (k) removed by GN 34 of 1 April 2011.]
(l)    the Namibia Development Corporation, established by the Namibia Development Act, 1993 (Act 18 of 1993);
(m)    the National Housing Enterprise, established by the National Housing Enterprise Act, 1993 (Act 5 of 1993);
(n)    ......
(o)    any cooperative society registered under the Co-operative Societies Act, 1996 (Act 23 of 1996);
(p)    any other institution or body designated by the Minister, on the recommendation of the Bank, by notice in the Gazette; or;
(q)    any non-banking financial institution governed by statute and regulated by the Namibia Financial Institutions Supervisory Authority established by the Namibia Financial Institutions Supervisory Authority Act, 2001 (Act 3 of 2001).
[Subsec (2) substituted by sec 2 of Act 14 of 2010.]
(3)    The Minister may, on the recommendation of the Bank, by notice in the Gazette, remove any institution or body from subsection (2).
(4)    A person, other than a person who solicits or advertises for deposits, shall not be deemed to be accepting deposits if he or she does not, at any time, hold deposits-
(a)    for or on behalf of more than 20 persons; or
(b)    amounting in aggregate to more than N$ 500 000, excluding interest payable on the deposits.
 
(5)    The Minister may, on the recommendation of the Bank, by notice in the Gazette
amend-
(a)    the number of persons specified in paragraph (a); or
(b)    the amount specified in paragraph (b), of subsection (4).
PART II ADMINISTRATION OF ACT (ss 3-4)
3    Guidelines, circulars or notices by the Bank
(1)    The Bank may from time to time, for the purpose of promoting sound and prudential banking practices, furnish banking institutions and controlling companies with guidelines, circulars or notices not inconsistent with this Act, relating to the application of this Act by banking institutions or controlling companies or to the conducting of business, as a banking institution or controlling company in general.
(2)    The guidelines, circulars or notices contemplated in subsection (1) must be in writing and must be delivered by the Bank to the principal officer of a banking institution or controlling company.
[Sec 3 substituted by sec 3 of Act 14 of 2010.]
4    Limitation of liability
(1)    No liability shall attach to-
(a)    the Government of Namibia;
(b)    the Minister;
(c)    the Bank;
(d)    the Governor or Deputy Governor, or any member of the Board or officer or employee of the Bank; or
(e)    any person acting on behalf of the Government or of the Bank,
either in his or her personal or official capacity, for any loss sustained or damage caused by any person as a result of anything done or omitted by any such person in good faith and not attributable to wrongful intent or to negligence, in the performance of any function or duty under this Act.
(2)    For the purposes of this section-
(a)    "Governor" means the Governor of the Bank; and
(b)    "Deputy Governor" means the Deputy Governor of the Bank, as defined in the Bank of Namibia Act, 1997.
PART III
AUTHORISATION TO ESTABLISH A BANKING INSTITUTION (ss 5-19)
5    Prohibition on conducting of banking business by unauthorised persons
(1)    No person shall-
(a)    conduct banking business;
(b)    receive, accept or take a deposit;
(c)    by any means, including advertising or soliciting, procure or attempt to procure a deposit;
(d)    pretend to be a banking institution; or
(e)    subject to subsection (2), use the expression "bank" or "banking institution", or any other expression, name, title or symbol indicating or calculated to create the impression that the person is conducting, or is authorised to conduct, business as a banking institution,
unless such person is under this Act authorised to so conduct business as a banking institution.
 
(2)    Paragraph (e) of subsection (1) shall not apply if the expression "bank" or any equivalent or derivative of the expression, is-
(a)    included in the name or title of a staff association or similar organisation of a banking institution;
(b)    included in the name or title of an association of banking institutions; or
(c)    used for any other purpose approved by the Bank in writing.
6    Investigations
(1)    This section, in so far as it provides for a limitation on the fundamental rights contemplated in sub-article (1) of article 13 of the Namibian Constitution by authorising interference with the privacy of any person's home, correspondence or communication, is enacted upon the authority conferred by sub-article (2) of that article.
(2)    The Bank may, if it has reason to believe that a person is conducting banking business in contravention of section 5 or section 55A, in writing authorise an officer of the Bank to-
(a)    mutatis mutandis in accordance with Chapter 2 of the Criminal Procedure Act, 1977 (Act 51 of 1977), at any time and without prior notice-
(i)    enter any premises which the Bank or the officer has reason to believe is [sic] occupied or used by any person for the purpose of or in connection with the conducting of banking business in contravention of section 5 or section 55A;
[Subpara (i) substituted by sec 4(b) of Act 14 of 2010.]
(ii)    search for any book, record, statement, document or other item used, or which is believed to be used, in connection with the banking business referred to in subparagraph (i); or
(iii)    seize or make a copy of any book, record, statement, document or other item referred to in subparagraph (ii), or seize any money found on the premises,
as if the officer were a police official referred to in that Act and the book, record, statement, document or other item were used in the commission of a crime;
(b)    question any person who is present on the premises referred to in paragraph (a)(i), or the auditors, directors, members or partners of any person conducting business on the premises, in connection with the conducting of the business on the premises;
(c)    direct that the premises referred to in paragraph (a)(i), or any part of, or anything on, the premises, be left undisturbed for as long as it is necessary to search the premises for any book, record, statement, document or item referred to in paragraph (a)(ii);
(d)    by notice in writing addressed and delivered to any person who has control over or custody of any book, record, statement, document or other item referred to in paragraph (a)(i), require the person to produce the book, record, statement, document or other item to the officer of the Bank addressing the notice, at the place, on the date and at the time specified in the notice;
(e)    examine any book, record, statement, document or other item referred to in paragraph (a)(i), and may require from any person referred to in paragraph (b) an explanation regarding any entry in the book, record, statement, document or other item;
(f)    by notice in writing delivered to a banking institution, instruct such banking institution to summarily freeze any banking account or accounts of any person referred to in this subsection with such banking institution, and to retain all moneys in any such banking account or accounts, pending the further instructions of the Bank;
(g)    by notice in writing delivered to any person referred to in this section, direct that the business of such person be summarily suspended, pending the investigation by the Bank under this section;
 
(h)    if any person has been convicted of an offence in terms of section 5 or section 55A, close down the business of such person;
[Para (h) substituted by sec 4(c) of Act 14 of 2010.]
(i)    require a member of the Namibian Police Force, or may request any other person, to assist him or her in the exercising, performance or execution of his or her powers, duties or functions under this section.
[Subsec (2) amended by sec 4(a) of Act 14 of 2010.]
(3)    If the officer of the Bank referred to in subsection (2) exercises, performs or executes a power, duty or function under this section in the presence of any person affected by the exercising, performance or execution of the power, duty or function, the officer shall at the request of the person so affected, exhibit to the person the written authorisation referred to in that subsection.
(4)    No person shall-
(a)    hinder or obstruct an officer of the Bank authorised under subsection (2) in the exercising, performance or execution of his or her powers, duties or functions;
(b)    refuse or fail to comply with any request made by an officer referred to in paragraph (a) in the exercising, performance or execution of such officer's powers, duties or functions;
(c)    subject to Article 12(1)(f) of the Namibian Constitution, refuse or fail to answer any question which an officer referred to in paragraph (a) lawfully directs at such person in the exercising, performance or execution of such officer's powers, duties or functions.
(d)    wilfully furnish false or misleading information to an officer referred to in paragraph
(a)    ; or
(e)    falsely give himself or herself out as an officer referred to in paragraph (a).
(5)    For the purposes of this section, "premises" shall include any building or structure, or part of such building or structure, whether above or below the surface of the land or water, or any vehicle, vessel or aircraft.
7    Repayment of monies by unauthorised persons
(1)    If the Bank is satisfied that a person has obtained any monies in contravention of section 5 or section 55A, the Bank must in writing direct the person to repay all the monies so obtained by him or her, including any interest or other amounts which may be owing by the person in respect of such monies-
(a)    to the respective persons from whom such person has obtained the monies as verified;
(b)    in the manner and in accordance with the requirements imposed; and
(c)    within the period of time imposed, by the Bank and specified in the direction.
[Subsec (1) substituted by sec 5 of Act 14 of 2010.]
(2)    Any person referred to in subsection (1) who refuses or fails to comply with a direction under that subsection, shall, for the purposes of section 345 of the Companies Act, be deemed to be unable to pay its debts, or for the purposes of section 8 of the Insolvency Act, 1936 (Act 24 of 1936), be deemed to have committed an act of insolvency, as the case may be, and the Bank may apply to the High Court for the winding-up, or for the sequestration of the estate, of such person, as the case may be.
(3)    Subsections (1) and (2) shall be in addition to, and not derogate from, any criminal liability in terms of this Act or of any other law, of a person referred to in those subsections.
(4)    Section 60 shall mutatis mutandis apply to monies referred to in subsection (1), or to any other property which a person referred to in that subsection may have in his or her possession as a lessor of a safe deposit box, as a trustee, a fiduciary or in any other capacity on behalf of any other person.
 
8    Name of banking institution
(1)    No authorisation to conduct banking business shall be issued to any person under a name which, in the opinion of the Bank, may mislead the public as to the identity of the banking institution concerned, or as to the nature of its activities.
(2)    No banking institution shall, without the written approval of the Bank, use, refer to itself by, or conduct banking business under, a name other than the name under which it was authorised to conduct banking business as contemplated in subsection (1).
(3)    Upon a written application by a banking institution, the Bank may, subject to such conditions as it may impose, change the name under which the banking institution was authorised to conduct banking business to the name applied for by the banking institution, or may refuse the application.
(4)    If the Bank is satisfied that the authorised name of a banking institution or the name under which the banking institution conducts business, as the case may be, may mislead the public as to the identity or nature of the business of the banking institution, the Bank may, subject to subsection (5), by written notice addressed and delivered to the banking institution-
(a)    change the authorised name of the banking institution; or
(b)    instruct the banking institution to change the name under which it is conducting business to a name approved by the Bank.
(5)    The Bank shall not change the name of a banking institution under subsection (4), unless-
(a)    the Bank has given the banking institution 30 days written notice of its intention to change the name of the banking institution, furnishing reasons for the intended change of name; and
(b)    has afforded the banking institution the opportunity to, within the 30 day period of time contemplated in paragraph (a), make written representations to the Bank relating to the intended change of name.
(6)    If the Bank under subsection (3) or (4), as the case may be, changes the name under which a banking institution was authorised, the Bank shall under section 11 issue an amended certificate of authorisation in the name of the banking institution, specifying the changed name of the banking institution.
9    Prerequisite for conducting banking business
(1)    A person is not authorised to conduct banking business unless such person is-
(a)    incorporated as a public company under the Companies Act and has the minimum capital funds as determined under section 28; or
(b)    a branch of a foreign banking institution authorised under section 19A.
(2)    A company may not, without the written approval of the Bank, be incorporated under the Companies Act for the purpose of conducting banking business.
(3)    An incorporated banking institution may not under this Act or any other law convert to a branch of a foreign banking institution contemplated in section 19A.
[Sec 9 substituted by sec 6 of Act 14 of 2010.]
10    Application for authorisation to establish a banking institution
(1)    Any person who intends to conduct banking business may, subject to the further provisions of this section, apply to the Bank for the granting of an authorisation to so conduct banking business.
(2)    An application contemplated in subsection (1) shall-
(a)    be made in the form and manner required by the Bank in writing;
(b)    be signed on behalf of the applicant by its principal officer, or if the applicant is a company to be registered, by its trustees or by the subscribers to its memorandum and articles of association; and
 
(c)    be accompanied by the prescribed application fee.
(3)    On receipt of an application contemplated in subsection (1), the Bank may, before considering the application, in writing require the applicant to furnish to the Bank-
(a)    a report in writing by a public accountant as defined in section 1 of the Public Accountants' and Auditors' Act, 1951 (Act 51 of 1951), or by another person approved by the Bank, on such aspects relating to the application as the Bank may deem necessary; or
(b)    such further information, books, records, statements or other documents as the Bank may request.
11    Granting or refusal of application for authorisation and certificate to conduct banking business
(1)    Before considering an application for an authorisation lodged with the Bank in terms of section 10, the Bank shall conduct such investigations, both in or outside Namibia, relating to the applicant or to the application as it may deem necessary in order to ascertain-
(a)    the validity and authenticity of the information submitted by the applicant to the Bank in terms of section 10;
(b)    the financial status and history of the applicant, including its assets and liabilities, and its policies and strategies relating to the future development of its banking business;
(c)    whether the applicant has an adequate capital structure, ascertained in the manner, and in accordance with the criteria, determined by the Bank under section 28;
(d)    the integrity of the applicant and its competence to conduct, or experience in conducting, banking business;
(e)    the ability of the applicant to comply with the provisions of this Act;
(f)    whether the directors and officers of the applicant are fit and proper persons for the purpose of conducting banking business, according to the criteria as the Bank may determine;
(g)    the structure and shareholding of the group of companies of which the applicant forms a part or intends to form a part may not hinder effective banking supervision or endanger the stability of the banking sector;
[Para (g) substituted by sec 7(a) of Act 14 of 2010.]
(h)    whether the granting of the application for authorisation will be in the economic interest of Namibia;
(i)    whether the applicant is or will be able to apply or maintain adequate, effective and proper internal control systems when conducting the banking business in terms of the authorisation; and
(iA)    whether the applicant complies or is able to comply with the laws relating to anti-money laundering and combating of financing of terrorism;
[Para (iA) inserted by sec 7(b) of Act 14 of 2010.]
(j)    any other matter which the Bank may regard as relevant to the applicant or to the application.
(2)    No application for authorisation to conduct banking business shall be considered by the Bank unless the Bank is satisfied that-
(a)    the applicant complies with, or is able to comply with, all the relevant provisions of this Act; and
(b)    the banking business to which the application relates would be to the economic advantage of Namibia.
(3) ......
[Subsec (3) deleted by sec 7(c) of Act 14 of 2010.]
 
(4)    After, having considered an application made in terms of section 10(1), the Bank, with the concurrence of the Minister, and subject to the further provisions of this Act, may-,
(a)    refuse the application; or
(b)    grant the application; or
(c)    grant the application subject to such conditions as the Bank may impose, and must in writing inform the applicant of its decision.
[Subsec (4) substituted by sec 7(d) of Act 14 of 2010.]
(5)    The application fee paid by or on behalf of the applicant in terms of section 10(2)(c) shall, irrespective of whether the application is granted or refused, not be refunded.
(6)    If the Bank under subsection (4) grants an application for authorisation to conduct banking business, the Bank shall, against payment of the prescribed authorisation fee by or on behalf of the person who applied for the authorisation, issue, in the name of such person, a certificate of authorisation to conduct banking business.
(7)    A certificate contemplated in subsection (6) shall-
(a)    be in the form;
(b)    contain the particulars; and
(c)    be issued and signed by a person, decided on by the Bank.
12    Duration and conditions of authorisation
(1)    An authorisation issued under section 11 shall, subject to section 15 or 17, as the case may be, be valid for an indefinite period of time.
(2)    A banking institution shall-
(a)    if it intends to effect any change in, or in any of the circumstances relating to, any of the particulars furnished by the banking institution when it in terms of section 10 applied to the Bank for the granting of an authorisation under section 11, give the Bank at least 30 days written notice of such intended change; or
(b)    if any change occurs in any of the circumstances referred to in paragraph (a), immediately in writing inform the Bank of such change which has so occurred,
together with full particulars of such change or intended change, as the case may be.
(3)    The Bank may, on receipt of a notice contemplated in paragraph (a) or (b) of subsection (2), as the case may be, or if a banking institution effects a change, or a change occurs, as the case may be, in the circumstances contemplated in that subsection, and the banking institution fails to inform the Bank of such change as required by that subsection, and if in the opinion of the Bank, the change or the intended change in the circumstances of the banking institution contemplated in that subsection is of such a nature or extent that the Bank considers it necessary to amend any of the conditions subject to which the authorisation was granted, the Bank shall-
(a)    in writing notify the banking institution of the Bank's intention to so amend such conditions; and
(b)    together with the notice contemplated in paragraph (a)-
(i)    furnish the banking institution with full particulars of the intended amendments to the conditions; and
(ii)    request the banking institution to, in writing and within the period of time specified in the notice, make written representations to the Bank relating to such intended amendments.
12A Application for registration as controlling company
(1)    A company which-
(a)    desires to exercise control over any banking institution; or
(b)    is a controlling company in respect of any other public company which-
(i)    has been authorized to conduct banking business; or
 
(ii)    has applied in terms of section 10 for authorization to conduct banking business,
may, subject to this section, apply to the Bank to be registered as a controlling company.
(2)    An application contemplated in subsection (1) must-
(a)    be made in writing in the form and manner determined by the Bank;
(b)    be signed by the director(s) on behalf of the company to be registered or by the subscribers to its memorandum and articles of association; and
(c)    be accompanied by the prescribed application fee.
(3)    For the purposes of this Act, a person is deemed to exercise control over a banking institution if, in the case where that person is a company, the banking institution is a subsidiary of that company, or, whether or not that person is a company, if that person alone or together with his or her associates-
(a)    holds shares in a banking institution of which the total nominal value represents more than 50 per cent of the nominal value of all the issued shares of the banking institutions, unless, due to limitations on the voting rights attached to the shares so held by the person alone or together with his or her associates, such person voting independently or such person and his or her associates voting as a group, is or are unable to decisively influence the outcome of the voting at a general meeting of the banking institution;
(b)    is entitled to exercise more than 50 per cent of the voting rights in respect of the issued shares of that banking institution; or
(c)    has the power to determine the appointment of the majority of the directors of that banking institution, including-
(i)    the power to appoint or remove, without the concurrence of any other person, all or the majority of such directors; or
(ii)    the power to prevent any person from being appointed as director without the consent of any other person,
and if a person is appointed as a director of the banking institution mainly because he or she is a director of the person who exercises control over a banking institution, such appointment, for the purposes of this subsection, is deemed to be an appointment by virtue of the power of a person exercising such control.
(4)    Despite subsection (3), if on any other grounds a person is deemed to exercise control over a banking institution, the Bank may subject such person to the provisions of this Act relating to a controlling company.
(5)    If the applicant referred to in subsection (1) is a financial institution as defined in section 1 of the Namibia Financial Institutions Supervisory Authority Act, 2001 (Act 3 of 2001), the applicant must establish a legal entity separate from the operations of the applicant to carry on its business as a controlling company.
(6)    If a company contemplated in subsection (1) has a financial institution as defined in section 1 of the Namibia Financial Institutions Supervisory Authority Act, 2001 (Act 3 of 2001) as part of its group of companies, the Bank and the Namibia Financial Institutions Supervisory Authority must enter into an agreement on matters of concurrent jurisdiction to give effect to the relevant legislation in respect of the functions of the Bank and the Authority.
[Sec 12A inserted by sec 8 of Act 14 of 2010.]
12B Granting or refusal of application for registration as controlling company
(1)    Before considering an application for registration as a controlling company in terms of section 12A, the Bank must conduct such investigation, both in or outside Namibia relating to the applicant or to the application as it may consider necessary to ascertain-
(a)    that the registration of the applicant as a controlling company is not contrary to the public interest;
 
(b)    that in the case of an applicant applying for registration in the circumstances referred to in subsection (1)(a) of section 12A, the applicant is able to establish control, as contemplated in that section, over the banking institution concerned;
(c)    that no provision of the memorandum or articles of associations of the applicant is inconsistent with this Act or is undesirable in so far as it concerns banking institutions;
(d)    that every director or every principal officer, as far as can reasonably be ascertained, is a fit and proper person to hold the office as such director or principal officer, and that every such director or principal officer has sufficient knowledge and experience to manage the affairs of the applicant in its capacity of a controlling company;
(e)    that the applicant is in a financially sound condition;
(f)    that no interest which any person has in the applicant is inconsistent with this Act; and
(g)    that the application complies with the requirements of this Act.
(2)    No applicant which has applied for registration as a controlling company in the circumstances referred to in section 12A(1)(b) may be registered as such controlling company, unless the company in respect of which it made such application is an authorized banking institution.
(3)    After having considered an application made in terms of section 12A, the Bank
may-
(a)    refuse the application;
(b)    grant the application; or
(c)    grant the application subject to such conditions as the Bank may impose, and must, subject to further provision of this Act, in writing inform the applicant of its decision.
(4)    If the Bank under subsection (3) grants an application for registration of a controlling company, the Bank must, against payment of the non-refundable prescribed registration fee, register the applicant as a controlling company in respect of the banking institution concerned and issue to the applicant a certificate of registration as a controlling company.
(5)    A certificate referred to in subsection (4) must-
(a)    be in the form;
(b)    contain the particulars; and
(c)    be issued and signed by a person, determined by the Bank.
(6)    A company which, on the date of commencement of this Amendment Act, is a controlling company in respect of a banking institution, is, with effect from that date, deemed to be a controlling company registered as such in terms of this section in respect of the banking institution concerned.
[Sec 12B inserted by sec 8 of Act 14 of 2010.]
12C Cancellation by Bank of registration of controlling company
(1)    Subject to subsection (2), the Bank, by notice in writing addressed and delivered to a controlling company, may cancel the registration of a controlling company from the date specified in the notice-
(a)    if the controlling company-
(i)    has failed to establish control over the banking institution in respect of which it is registered within a period of six months after the date of issue of the certificate of registration or any other date as the Bank may specify;
(ii)    no longer exercises such control in terms of section 25 or under any other circumstances; or
 
(iii)    has submitted a special resolution contemplated in section 200 of the Companies Act authorising such cancellation; or
(b)    if the authorization of a banking institution in respect of which a controlling company is registered, is cancelled, the registration of that controlling company in respect of that banking institution is deemed to have been cancelled simultaneously.
(2)    No cancellation of any registration under subsection (1)(a)(i) and (ii) may be of force, unless the Bank has previously by notice in writing given the controlling company concerned an opportunity to show cause within a period specified in the notice, not being less than 30 days, why its registration should not be cancelled.
[Sec 12C inserted by sec 8 of Act 14 of 2010.]
12D Investment by controlling company
A controlling company investing-
(a)    in undertakings other than a banking institution, institutions which conduct business similar to the business of a banking institution in a country other than Namibia, controlling companies or companies of which the main object is the holding or development of property of which is used or intended to be used mainly for the purpose of conducting the business of the banking institutions; or
(b)    in fixed property which is not used or intended to be used mainly for the purpose of conducting the business of the banking institution,
must manage its transactions in such investments in such a way that the amount of such investments does not at any time exceed a percentage of the sum of the capital funds of the controlling company and any banking institution under its control, as the Bank may determine.
[Sec 12D inserted by sec 8 of Act 14 of 2010.]
12E Restructuring within group of companies
No restructuring of companies within a group, of which a banking institution or a controlling company or a subsidiary of banking institution is a member, may be effected without the prior written approval of the Bank.
[Sec 12E inserted by sec 8 of Act 14 of 2010.]
13    Annual fees
(1)    An authorised banking institution or controlling company shall, subject to subsection (2), in respect of the authorisation to conduct business as a banking institution or controlling company, and before 31 January of each year, pay to the Bank the prescribed annual fees in respect of such year.
(2)    The Bank may, upon receipt of a written request made by a banking institution or controlling company before the date for payment of the annual fees specified in subsection (1), and on good cause shown in writing grant an extension of time to such banking institution or controlling company for the payment of such fees for such period of time and subject to such conditions as the Bank may impose.
(3)    If a banking institution or controlling company fails to pay the prescribed annual fees before or on the date specified in subsection (1), or within the extended period of time, if any, granted by the Bank under subsection (2)-
(a)    the authorisation referred to in subsection (1) shall terminate on that date or on the last day of the extended period of time, as the case may be; and
(b)    the unpaid annual fee and any penalty payable in terms of subsection (4)-
(i)    shall be a debt due to the Bank by the banking institution or controlling company; and
(ii)    may be recovered by the Bank from the banking institution or controlling company by means of action instituted in any court having jurisdiction.
 
(4)    If the annual fees payable in terms of subsection (1) are not paid on or before the date specified in that subsection, such late payment of the annual fees shall, subject to subsection (2), be subject to the payment of a penalty at the prescribed rate.
[Sec 13 amended by sec 41 of Act 14 of 2010.]
14    Subsidiaries, branch offices, representative offices and other interests of a banking institution
(1)    A banking institution shall not, without the prior written approval of the Bank-
(a)    establish or acquire a subsidiary;
(b)    open a branch outside Namibia;
(c)    acquire any direct or indirect interest in any undertaking outside Namibia; or
(d)    establish a representative office outside Namibia.
(2)    A banking institution shall not less than 30 days prior to-
(a)    the opening of a branch in Namibia by the banking institution;
(b)    the disposal of a subsidiary, or of any interest in any other undertaking; or
(c)    the closing of a representative office or of a branch office,
in writing inform the Bank of the intended opening, disposal or closing, as the case may be.
(3)    A controlling company may not, without the prior written approval of the Bank-
(a)    establish or acquire a subsidiary; or
(b)    acquire any direct or indirect interest in any undertaking outside Namibia. [Subsec (3) added by sec 9 of Act 14 of 2010.]
(4)    A controlling company must, not less than 30 days prior to the opening, disposal or closing of a subsidiary or of any interest in any other undertaking, in writing inform the Bank of the intended opening, disposal or closing.
[Subsec (4) added by sec 9 of Act 14 of 2010.]
15    Cancellation of authorisation
(1)    The Bank may, after consultation with the Minister and subject to subsection (2), by notice in writing addressed and delivered to a banking institution, cancel, from a date specified in the notice, the authorisation to conduct banking business granted to the banking institution under section 11, if the banking institution-
(a)    fails to commence with the conducting of banking business within a period of six months-
(i)    after the date for commencement of the conducting of banking business specified by the Bank upon the granting of the authorisation; or
(ii)    if no date for commencement contemplated in subparagraph (i) is specified by the Bank, after the date of issue of the certificate of authorisation under section 12;
(b)    fails to comply with any condition imposed by the Bank under section 11(4)(c);
(c)    ceases to conduct the business for which it is authorised;
(d)    is found guilty of an offence under any provision of this Act, and if the Bank is of the opinion that the banking institution concerned is conducting its business in a manner detrimental to the interest of its customers or the public; or
[Para (d) substituted by sec 10 of Act 14 of 2010.]
(e)    in the circumstances contemplated in section 39(5), and if the Bank is of the opinion that the banking institution concerned is conducting its business in a manner detrimental to the interests of its customers or the general public.
(2)    The Bank shall, before cancelling the authorisation of a banking institution under subsection (1), but subject to subsection (5), in writing give the banking institution not less than 30 days written notice of its intention to so cancel the authorisation.
(3)    A notice to a banking institution contemplated in subsection (2) shall-
(a)    state that the Bank intends to cancel the authorisation of a banking institution;
(b)    specify the reason or reasons for the intended cancellation; and
 
(c)    invite the banking institution to, within the period of time specified in the notice, in writing make representations to the Bank to show cause why the authorisation shall not be cancelled.
(4)    The Bank may, at the expiration of the 30 day period contemplated in subsection
(2)    and after considering the representations, if any, made by the banking institution concerned after consultation with the Minister-
(a)    cancel the authorisation under subsection (1); or
(b)    without cancelling the authorisation, amend the conditions subject to which the authorisation was granted; or
(c)    decide not to cancel the authorisation or to amend the conditions referred to in paragraph (b),
and shall immediately in writing inform the banking institution of its decision.
(5)    Notwithstanding subsection (2), the Bank may, after consultation with the Minister, in circumstances contemplated in subsection (1) and without prior notice, direct a banking institution by means of a notice delivered in accordance with section 26(3)(d), to summarily suspend all, or any part of, the banking business of the banking institution for such period and subject to such conditions as the Bank may specify in such notice.
(6)    A banking institution to which a notice under subsection (5) has been delivered may, within a period of 14 days after receipt of the notice, in writing submit to the Bank representations relating to the notice and to the suspension of its banking business, or part thereof, under that subsection.
(7)    On receipt of representations by a banking institution under subsection (6), the Bank may confirm or rescind the suspension made by it under subsection (5), or may vary the conditions subject to which the banking business of the banking institution was so suspended.
16    Repayment of deposits upon cancellation of authorisation
(1)    If the authorisation to conduct banking business granted to a banking institution ceases or has been cancelled, the Bank may give notice to the banking institution-
(a)    to repay all monies due by it to its depositors, including any interest on, or any other amounts owing by it in respect of, such monies; and
(b)    to change its name and to amend its memorandum and articles of association,
in accordance with the directions and within the period of time specified by the Bank in the notice.
(2)    Different directions or periods of time may, in respect of different kinds of deposits, be specified by the Bank under subsection (1)(a).
(3)    Notwithstanding subsection (2), the Bank shall, in specifying the directions or periods of time contemplated in that subsection, not give any preference to any depositor which such depositor does not enjoy in terms of any other law.
(4)    A banking institution which in accordance with a notice under subsection (1) repays a deposit before the due date agreed upon for the repayment of the deposit, shall not be bound to pay any interest or any other amounts which would have been payable in respect of the deposit for the period calculated from the date of the actual repayment up to the due date.
(5)    A banking institution which fails to comply with a notice under subsection (1) shall for the purposes of sections 344 and 345 of the Companies Act be deemed not to be able to pay its debts.
17    Cancellation of authorisation upon winding-up
When the affairs of a banking institution have been completely wound up in terms of section 419 of the Companies Act-
(a)    the Master of the High Court shall transmit to the Bank a copy of the certificate contemplated in that section of the Companies Act; and
 
(b)    an authorisation granted to the banking institution shall, from the date of the dissolution of the company concerned contemplated in subsection (3) of that section of the Companies Act, be deemed to be cancelled.
18    Publication of information relating to banking institutions
The Bank, by notice in the Gazette in the prescribed form and manner-
(a)    shall inform-
(i)    the authorisation of a person to conduct business as a banking institution;
(ii)    any change of name of a banking institution; or
(iii)    the cancellation of an authorisation; or
(b)    may inform the suspension of the authorisation, of the business or of any part of the business of a banking institution,
under any provision of this Act.
19    Representative office of foreign banking institution
(1)    No foreign banking institution shall establish a representative office in Namibia without the prior written approval of the Bank.
(2)    A foreign banking institution shall, in the form and manner required by the Bank, apply for an approval contemplated in subsection (1) and shall, together with the application, furnish such particulars or documents relating to the application as the Bank may specify and inform the applicant.
(3)    An application in terms of subsection (2) shall be accompanied by the prescribed application fee.
(4)    The representative office in Namibia of a foreign banking institution shall-
(a)    not less than 20 days prior to the foreign banking institution-
(i)    changing its name;
(ii)    substituting its chief representative officer;
(iii)    changing the address or location of its representative office in Namibia; or
(iv)    closing down the representative office,
in writing inform the Bank of such intended change, substitution or closing, as the case may be;
(b)    not conduct banking business in Namibia; and
(c)    only be engaged in such activities in Namibia as the Bank may approve and in writing inform the foreign banking institution.
19A Branches of foreign banking institutions
(1)    An institution which has been incorporated in a country other than Namibia and which lawfully conducts in such other country a business similar to banking business (hereinafter referred to as the foreign institution) may, despite section 9, with the prior written authorization of the Bank and subject to conditions, if any, as the Bank may determine, conduct banking business by means of a branch in Namibia.
(2)    To obtain the prior authorization of the Bank as contemplated in subsection (1), the foreign institution concerned must in the manner and form required by the Bank lodge a written application with the Bank which must be accompanied by-
(a)    a written statement containing information required by the Bank; and
(b)    the prescribed application fee which is not refundable.
(3)    The Bank may require the foreign institution applying in terms of subsection (2) to furnish it with-
(a)    such information or documents, in addition to information and documents furnished by the foreign institution in terms of subsection (2); or
(b)    such further information with regard to the nature and extent of supervision exercised or to be exercised by the responsible supervisory authority of the foreign institution's country of domicile in respect of-
 
(i)    the proposed branch in Namibia;
(ii)    the foreign institution itself; or
(iii)    any group of institutions of which the foreign institution may form a part, as the Bank may consider necessary.
(4)    After having considered an application in terms of subsection (2) the Bank, with the concurrence of the Minister, and subject to the further provisions of this Act, may-
(a)    refuse the application; or
(b)    grant the application; or
(c)    grant the application subject to such conditions as the Bank may impose, and in writing inform the applicant of its decision.
(5)    The Bank may not grant an application in terms of subsection (4) unless the Bank is satisfied that all the requirements as determined by the Bank have been met.
(6)    If the Bank grants an application referred to in subsection (4), the Bank must issue to the foreign institution concerned a certificate of authorization to conduct banking business by means of a branch in Namibia.
(7)    Any foreign institution that conducts banking business by means of a branch in Namibia without having obtained the Bank's written authorization referred to in subsection
(1)    commits an offence and is liable to the penalties provided for under section (72)(2)(a). [Sec 19A inserted by sec 11 of Act 14 of 2010.]
19B Application of this Act to branches of foreign banking institutions
(1)    A foreign banking institution authorized to conduct banking business by means of a branch in Namibia is construed as a banking institution in terms of this Act, and for all purposes this Act applies to any such branch, but the Minister, by notice in the Gazette, on the recommendation of the Bank, may exempt such branch from the application of certain provisions of this Act.
(2)    Unless expressly stated otherwise, any reference to a banking institution in any other law includes, in so far as it may be relevant, a reference to a branch in Namibia of a foreign banking institution.
[Sec 19B inserted by sec 11 of Act 14 of 2010.]
PART IV
SHAREHOLDING IN BANKING INSTITUTIONS (ss 20-26)
20    Restriction on shareholding and changes in shareholding
(1)    Notwithstanding the Companies Act, but subject to the prior written approval of the Bank-
(a)    no banking institution or controlling company shall allot or issue, or register the transfer of, any of its shares to a person; or
(b)    no person shall acquire any shares in a banking institution or controlling company, to the extent to which the nominal value of the shares so allotted, issued, transferred or acquired, together with the nominal value of any other shares in the banking institution or controlling company already registered in the name of such person or in the name of any related party of such person, equals or exceeds in total 20 percent of the total nominal value of all issued vote-bearing shares in the banking institution or controlling company.
(2)    Without prior written notification to the Bank-
(a)    no banking institution or controlling company shall allot or issue, or register the transfer of, any of its shares to a person; or
(b)    no person shall acquire any shares in a banking institution or controlling company, to the extent to which the nominal value of such shares so allotted, issued, transferred or acquired, together with the nominal value of any other shares in the banking institution or controlling company already registered in the name of such person or any related party of
 
such person, equals or exceeds, subject to subsection (1), five percent of the total nominal value of all issued vote-bearing shares in the banking institution or controlling company.
(3)    If the nominal value of shares in a banking institution or controlling company issued or to be registered in the name of a person, together with the nominal value of the shares already held by the person, amount to the lesser of N$ 100 000 or one percent of the value of all the shares issued in the banking institution or controlling company, the banking institution or controlling company may, unless it has knowledge to the contrary, accept that the person is not a related party of any other shareholder in the banking institution or controlling company.
(4)    No person who is not a fit and proper person in accordance with the criteria for fitness and properness relating to substantial shareholders as determined by the Bank, shall become a substantial shareholder of a banking institution or controlling company.
(5)    No banking institution or controlling company shall allot or issue, or register a transfer of, shares to a person-
(a)    who is; or
(b)    who shall, as a result of the allotment, issue or registration, become,
a substantial shareholder of the banking institution or controlling company, if such person is prohibited in terms of subsection (4) to be, or to become, a substantial shareholder of a banking institution or controlling company.
(6)    For the purposes of this section, a "related party" in respect of a person means-
(a)    an associate or close relative of the person; or
(b)    any other person who has entered into an agreement with the person relating to-
(i)    the acquisition, holding or disposal; or
(ii)    the exercising of voting rights in respect,
of shares in a banking institution or controlling company or in any trust controlled or administered by the person.
[Sec 20 amended by sec 41 of Act 14 of 2010.]
21    Shareholder's register and registration of shares
(1)    Subject to subsection (3), a banking institution or controlling company shall, in such form and manner as the Bank may approve, maintain a register of the current beneficial holders of all vote-bearing shares in the banking institution or controlling company.
(2)    The transfer of a share referred to in subsection (1), shall not be valid until such time as the transfer has been recorded in the register contemplated in that subsection.
(3)    If the Bank is satisfied that the register kept by a banking institution or controlling company in terms of section 93 of the Companies Act clearly reflects the particulars of the current beneficial holders, and a record of any change in the holders, of all the shares referred to in subsection (1) of this section, the Bank may, at the request of the banking institution or controlling company, in writing exempt the banking institution or controlling company from the requirement to maintain the register contemplated in that subsection.
(4)    Notwithstanding the provisions of the Companies Act, a banking institution shall not, without the prior written approval of the Bank-
(a)    allot or issue any of its shares to, or register any of its shares in the name of, any person other than the intended beneficial shareholder;
(b)    transfer any share in the name of any person other than the beneficial shareholder; or
(c)    allow any of its shares registered in the name of a person other than the beneficial shareholder before the commencement date of this Act, to remain so registered.
(5)    Subsection (4) shall, subject to subsection (6), not affect the allotment or issue, or the registration of a transfer, of shares in a banking institution or controlling company-
 
(a)    in the name of a trustee of a unit trust scheme as defined in the Unit Trust Control Act, 1981 (Act 54 of 1981), or of a nominated company of the trustee approved by the Registrar of Unit Trust Companies referred to in that Act;
(b)    in the name of an executor, administrator, trustee, curator, guardian or liquidator, as the case may be, in the circumstances referred to in section 103(3) of the Companies Act; or
(c)    for a period of not more than six months in the name of a stock broker, or in the name of a company established by him or her for any purpose contemplated in section 12(3) of the Stock Exchanges Control Act, 1985 (Act 1 of 1985), or in the name of an employee of the company,
if the banking institution or controlling company is satisfied that the shares are allotted, issued or registered in such a manner in order to facilitate delivery of the shares to the purchaser thereof.
(6)    The banking institution or controlling company referred to in subsection (5) shall in writing furnish the Bank with full particulars of the transaction relating to the allotment, issue or registration of the shares contemplated in that subsection.
(7)    The voting rights attached to the shares registered in terms of subsection (5) shall, unless otherwise determined by the Bank, not be more than 25 percent of the aggregate of the voting rights attached to all the issued shares of the banking institution or controlling company concerned.
[Sec 21 amended by sec 41 of Act 14 of 2010.]
22    Furnishing of information by shareholders
(1)    At the written request of a banking institution or controlling company addressed to a person who has notified the banking institution or controlling company that he or she or it intends to acquire shares in the banking institution or controlling company, such person shall, subject to subsection (2), furnish the banking institution or controlling company with the information or particulars specified in such request and which the banking institution or controlling company considers necessary to enable it to comply with sections 20 or 21, as the case may be.
(2)    The information or particulars contemplated in subsection (1) shall be furnished to the banking institution or controlling company in such form as the banking institution or controlling company may specify in the request contemplated in that subsection.
[Sec 22 amended by sec 41 of Act 14 of 2010.]
23    Absence of wrongful intent
If a banking institution or a controlling company, or any director, officer, employee or agent of the banking institution or controlling company, on the strength of information or particulars reasonably obtained by him or her, in good faith and without wrongful intent, acts, or fails to act, in contravention of section 20(1), (2), (3), (4) or (5) or 21(1), (2), (4),
(6) or (7), such act or failure to act shall not constitute an offence.
24    Effects of registration of shares contrary to Act
(1)    No person shall-
(a)    either personally or by proxy granted to any other person, cast a vote attached to; or
(b)    receive a dividend payable in respect of,
any share in a banking institution or controlling company allotted or issued to him or her, or registered in his or her name, in contravention of any provision of this Act.
(2)    A vote cast in contravention of paragraph (a) of subsection (1) shall, for the purposes of this Act, be null and void.
(3)    A dividend referred to in paragraph (b) of subsection (1) shall accrue to the banking institution or the controlling company concerned, as the case may be.
 
[Sec 24 amended by sec 41 of Act 14 of 2010.]
25    Restriction of right to control banking institution
(1)    Subject to subsection (3) and section 20, a person may not acquire, or directly or indirectly exercise, control over a banking institution, unless such person is-
(a)    a fit and proper person as contemplated in section 20(4);
(b)    incorporated as a company under the Companies Act; and
(c)    registered as a controlling company in terms of section 12B in respect of such banking institution.
(2)    The Bank, by notice in writing addressed to a person, may prohibit the person to acquire or to exercise control over a banking institution, or to continue to exercise such control within a period specified in the notice, if in the opinion of the Bank the person-
(a)    is not fit and proper having regard to the structure and business activities of the corporate group of which the person is a member;
(b)    has furnished the Bank in or in connection with its application for registration with information which is in a material respect untrue;
(c)    is conducting its business in a manner detrimental to the banking institution in respect of which it was registered as a controlling company; or
(d)    has contravened or failed to comply with a provision of or a requirement under this Act.
(3)    The notice under subsection (2), in the case of a company registered as a controlling company, must-
(a)    compel such company to reduce, within a period determined by the Bank, the shareholding of that company in that banking institution to a shareholding with a total nominal value of not more than 20 per cent of the total nominal value of all the issued shares of that banking institutions;
(b)    limit, with immediate effect, the voting rights that may be exercised by such person by virtue of the shareholding of that person to not more than 20 per cent of the voting rights attached to all the issued shares of the banking institution concerned; and
(c)    limit, with immediate effect, the power to appoint or remove, without the concurrence of any other person, all or the majority of such directors.
(4)    A person who fails to comply with a notice issued under subsection (2) commits an offence and is liable to the penalties provided for under section (72)(2)(a).
[Sec 25 substituted by sec 12 of Act 14 of 2010.]
26    Prohibitions and restrictions
(1)    The Bank may, if it is satisfied that a banking institution or controlling company or any other person has contravened, or has failed to comply with, any of the provisions of section 20, 21, 22 or 25, as the case may be, in writing make a preliminary order imposing one or more of the restrictions specified in subsection (2) on the person or on the banking institution or controlling company, as the case may be, as the Bank may consider appropriate.
(2)    A preliminary order by the Bank contemplated in subsection (1) may, in respect of any of the shares forming the subject of, or related to, the contravention or failure referred to in that subsection, prohibit-
(a)    the transfer of, or the due performance in terms of any agreement to transfer, the shares; or
(b)    in the case of unissued shares, the transfer of, or the right to be issued with, the unissued shares;
(c)    the exercise of any voting rights in respect of the shares;
(d)    the issue of any further shares in pursuance to any offer made to the holder of the shares; or
 
(e)    except in the case of liquidation, the payment of any amount whatsoever due by the banking institution or controlling company in respect of the shares.
(3)    A preliminary order made by the Bank under subsection (1) shall-
(a)    be in the form required, and signed by a person appointed, by the Bank;
(b)    be addressed to the banking institution or controlling company or person concerned;
(c)    specify, and contain full particulars of, the order made by the Bank; and
(d)    during normal hours of business be delivered by a person appointed in writing by the Bank for such purpose, upon the principal officer of the banking institution or controlling company or upon the other person contemplated in subsection (1), as the case may be, to whom the preliminary order is directed, or, in the case of a banking institution or controlling company, if the principal officer is not available, upon any person over the age of 16 years employed by the banking institution or controlling company.
(4)    The person to whom the preliminary order is delivered in terms of subsection (3)(d), shall-
(a)    in writing acknowledge receipt of the order, specifying-
(i)    the full names and designation of the person who received the order; and
(ii)    the date and time of such receipt; and
(b)    sign the acknowledgment of receipt contemplated in paragraph (a).
(5)    The Bank may, at its discretion and in addition to the delivery of the preliminary order in terms of subsection (3)(d) upon the banking institution or controlling company or upon the other person concerned, publish the preliminary order in one or more newspapers in the manner and form as the Bank may specify.
(6)    A preliminary order delivered upon a banking institution or controlling company or other person in terms of subsection (3)(d) shall, from the date of such delivery, be binding upon the banking institution or the other person, as the case may be, to whom the order is directed and to whom it is delivered in terms of that subsection.
(7)    A person holding shares in a banking institution and to whom a preliminary order has been delivered in terms of subsection (3)(d) shall, within seven days after the date of such service, or within such longer period of time as the Bank may allow, surrender the share certificates concerned to the Bank, together with such other documents relating to the shares as the Bank may specify in the order.
(8)    Any person to whom a preliminary order has been delivered in terms of subsection (3)(d), or any other person prejudiced by the order, may within a period of 14 days after the date of service of the order, or after the date upon which he or she became aware of the order, as the case may be, make written representations to the Bank applying for-
(a)    the cancellation of the order on the grounds that the person had not contravened, or had not failed to comply with, any provision of this Act as specified in the order; or
(b)    an amendment of the order on the grounds specified in the application.
(9)    The Bank may, after considering the representations made to it in terms of subsection (8)-
(a)    confirm the preliminary order;
(b)    cancel the preliminary order; or
(c)    confirm the preliminary order subject to such amendments as the Bank may consider appropriate.
(10)    If the Bank confirms a preliminary order under subsection (9), it may dispose of the shares surrendered to it in terms of subsection (7), in such manner as it may consider appropriate, to a person qualified to hold such shares in terms of this Act.
(11)    The proceeds of a sale of shares under subsection (10) shall, subject to subsection (12), be paid by the Bank to the person entitled to the proceeds.
 
(12)    If the Bank is for any reason unable to pay the proceeds referred to in subsection (11) to the person entitled thereto under that subsection, section 60(1) shall mutatis mutandis apply to the proceeds.
(13)    The Bank may in writing give such instructions or directions to the directors or officers of a banking institution or controlling company contemplated in subsection (1) as the Bank may consider necessary to give effect to an order made by the Bank under this section.
(14)    Any transaction, including any agreement or arrangement, in relation to any shares or security, or to any interest in any shares or security, which is in contravention of-
(a)    any order made under this section; or
(b)    any instruction or direction given under subsection (13), by the Bank, shall be null and void.
(15)    The Bank may, irrespective of whether a person contemplated in subsection (1) has been prosecuted in respect of the contravention of, or failure to comply with, a provision of this Act referred to in that subsection, make a preliminary order or take such other steps as the Bank may consider appropriate.
(16)    Any person who fails to comply with any provision of subsection (4) is liable to a fine determined by the Bank.
[Subsec (16) substituted by sec 13 of Act 14 of 2010.]
[Sec 26 amended by sec 41 of Act 14 of 2010.]
PART V
PRUDENTIAL REQUIREMENTS AND LIMITATIONS (ss 27-40)
27    Standards of corporate behaviour
(1)    A banking institution, its holding company in respect of its activities conducted in Namibia or its subsidiaries shall, in accordance with guidelines or notices issued by the Bank under section 3 and to the satisfaction of the Bank, at all times conduct its business in a prudent manner and consistent with the best standards and practices of corporate governance and sound financial management.
(2)    Unless otherwise prescribed or determined, a banking institution or controlling company shall comply with the standards of corporate governance generally practised, or required to be so practised, by companies listed on any stock exchange established in Namibia under the Stock Exchanges Control Act, 1985 (Act 1 of 1985).
[Subsec (2) amended by sec 41 of Act 14 of 2010.]
28    Minimum capital funds
(1)    The minimum capital funds, unimpaired by losses, of a banking institution shall, subject to subsection (2), (4) or (5), as the case may be, at any time not be less than the greater of-
(a)    an amount determined by the Bank; or
[Para (a) substituted by sec 14(a) of Act 14 of 2010.]
(b)    an amount which represents a percentage of the risk weighted assets and other exposures of a banking institution as the Bank may determine.
(2) and (3) ......
[Subsecs (2) and (3) deleted by sec 14(b) of Act 14 of 2010.]
(4)    Notwithstanding any provision of this section, the Bank may, if it is of the opinion that there is a risk of the existing capital funds of a banking institution being impaired, require the banking institution to, in addition to the capital funds required by or under subsection (1), acquire such further capital funds as the Bank may specify.
(5)    The Bank may-
(a)    on application in writing and on good cause shown, in writing permit a banking institution to, for such limited period of time as the Bank may specify, have capital
 
funds which are lower than the capital funds determined by or under subsection (1), and which limited period of time and the amount of the lower capital funds shall be specified in the permission;
(b)    determine that the capital requirements of a banking institution contemplated in subsection (1), shall, on a consolidated basis, apply to, and the capital be reflected in the consolidated accounts of, the banking institution, its holding company or the affiliate or associate of the banking institution or its holding company; or
(c)    for the purposes of this section, determine the percentage and risk weighting of assets or other exposures.
28A Minimum capital funds in respect of banking group
(1)    Despite section 28(1), but subject to subsection (2), a controlling company must manage its affairs in such a way that the sum of the capital funds of the banking group structured under such controlling company does not at any time amount to-
(a)    less than the sum of the amounts of the required capital funds determined, for the respective entities constituting such banking group, in accordance with the rules and regulations of the respective regulators responsible for the supervision of those entities;
(b)    plus such amount as may be determined by the Bank in respect of entities that are included in such banking group, but are not subject to the supervision of a regulator.
(2)    In calculating the aggregate amount a banking group is required to maintain in terms of subsection (1), the sum of the banking group's capital funds is calculated by deducting from it such amounts as may be determined.
(3)    Despite paragraphs (a) and (b) of the definition of "banking group", the Bank, after having regard to the structure and business activities of a banking group, and by notice in the Gazette, may include in or exclude from that definition any person or persons.
[Sec 28A inserted by sec 15 of Act 14 of 2010.]
29    Composition of capital funds
The Bank may, for the purposes of section 28, determine the composition and proportions of the different classes of capital constituting capital funds contemplated in, and other requirements and criteria of approval relating to, the last mentioned section.
30    Provision to be made for certain matters
(1)    A banking institution shall, in order to ascertain whether the banking institution is complying with section 28, or before any dividend is declared, take into account and in its calculations make provision for-
(a)    bad, doubtful or substandard debts, and the depreciation of assets, to be calculated not less than quarterly;
[Para (a) substituted by sec 16(a) of Act 14 of 2010.]
(b)    operating losses, including depreciation and bad debts not yet written off;
(c)    any amount representing expenses relating to the organisation or extension of business or goodwill, or other intangible assets, to be calculated not less than quarterly; or
(d)    such other item or items as the Bank may determine.
(2)    The minimum standards for provision for bad, doubtful or substandard debts, the accounting treatment and suspension of interest of non-performing loans as contemplated in subsection (1) may be determined by the Bank.
[Subsec (2) substituted by sec 16(b) of Act 14 of 2010.]
(3)    If a capital requirement is to be applied on a consolidated basis in terms of section 28(5)(b), subsection (1) of this section shall apply to all persons within the group constituting the consolidation.
 
31    Minimum liquid assets
(1)    The Bank may determine the minimum, or minimum average, liquid assets which a banking institution shall hold at any time, or over the period of time as specified in the determination.
(2)    If a banking institution fails to comply with a determination under subsection (1), it shall immediately in writing report such failure to the Bank and shall in such report state the reasons for such failure.
(3)    During any period of time which a banking institution fails, or is unable, to comply with a determination under subsection (1), it shall not grant any loan or credit to any person without the prior written approval of the Bank.
32    Restriction on dividends
(1)    A banking institution, if its capital is adequate in terms of section 28, may declare, pay or credit dividend[s], or make any transfer from its profits.
(2)    In the event that dividends to be paid, declared, credited or any transfer to be made under subsection (1), exceed current audited profits, prior written approval of the Bank must be obtained.
[Sec 32 substituted by sec 17 of Act 14 of 2010.]
33    Minimum local assets
(1)    A banking institution shall maintain the minimum local assets as determined by or under this section.
(2)    The minimum local assets contemplated in subsection (1) shall be determined by the Bank.
(3)    For the purposes of this section, "local assets" means any asset consisting of exposures with persons permanently resident in Namibia and other assets situated in Namibia.
34    Large exposures and concentrations of credit
(1)    A banking institution shall not, without the prior written approval of the Bank, undertake exposure to a single person, to a group of related persons, or to any industry in or outside Namibia which exceeds such percentage of its capital funds as the Bank may determine.
(2)    The total amount of large exposures of a banking institution shall not exceed such percentage of its capital funds as the Bank may determine.
(3)    For the purposes of this section, the Bank may determine the meaning of a "single borrower" or a "group of related persons" or of a "large exposure".
[Subsec (3) substituted by sec 18 of Act 14 of 2010.]
35    Lending against own shares or debt instruments
No banking institution shall, directly or indirectly, lend money or issue guarantees against the security of-
(a)    the shares; or
(b)    such debt instruments which may qualify as capital,
of the banking institution, of its holding company or of any of its subsidiaries.
36    Exposure to directors, to officers with managerial responsibilities or to shareholders to be secured
(1)    No banking institution may have any exposure to-
(a)    any director or officer with managerial responsibility in the banking institution;
(b)    any substantial shareholder in the banking institution;
(c)    any of the banking institution's auditors;
 
(d)    any affiliate, associate or close relative of a person referred to in paragraph (a), (b), or (c), as the case may be; or
(e)    any body corporate or unincorporated of or in which a person referred to in paragraph (a), (b) or (c) as the case may be, is a director, a substantial shareholder or a guarantor, or otherwise has an interest,
except if such exposure complies with the requirements for exposures to connected persons as determined by the Bank.
[Subsec (1) substituted by sec 19(a) of Act 14 of 2010.]
(2)    to (4) inclusive ......
[Subsecs (2) to (4) inclusive repealed by sec 19(b) of Act 14 of 2010.]
37    Terms of exposure to directors, officers and shareholders
The Bank must determine the criteria and conditions to be employed for establishing the acceptability or evaluation of collateral for the purpose of this Act.
[Sec 37 substituted by sec 20 of Act 14 of 2010.]
38    Exposure to holding companies, subsidiaries and affiliates
(1)    Despite section 226 of the Companies Act, but subject to subsection (2) of this section, a banking institution may, with the prior written notification to the Bank, stating the terms and conditions of a loan, grant a loan, advance or credit facility to its holding company, subsidiary or affiliate, provided that such notification is received by the Bank at least 5 days prior to granting such loan, advance or credit facility.
[Subsec (1) substituted by sec 21(a) of Act 14 of 2010.]
(2)    A banking institution shall not grant a loan, advance or credit facility under subsection (1) unless such loan, advance or credit facility-
(a)    is fully secured;
(b)    is subject to the criteria or conditions for the granting of, or the terms and conditions relating to the payment of interest on, or the repayment of, the loan, advance or credit facility which is not more favourable than the criteria or conditions ordinarily applicable to any member of the public; and
(c)    has been approved by the majority of the entire board of directors or a committee of the board of directors.
[Para (c) substituted by sec 21(b) of Act 14 of 2010.]
(3)    Any banking institution which-
(a)    without the approval of the Bank in terms of subsection (1), grants a loan in terms of that subsection; or
(b)    grants a loan in contravention of subsection (2), must pay a fine as determined by the Bank.
[Subsec (3) substituted by sec 21(c) of Act 14 of 2010.]
(4)    Despite subsection (2), the Bank may object to the granting of a loan, advance or credit facility.
[Subsec (4) added by sec 21(d) of Act 14 of 2010.]
39    Restriction on commercial activities
(1)    A banking institution shall only conduct financial business or transactions which are usually or ordinarily conducted by banking institutions in terms of this Act or of any other law.
(2)    A banking institution shall not, subject to subsection (6), conduct, or have any direct interest in, any activities relating to merchandise, trade, industry, insurance, mining, agriculture, fisheries or commerce unless such activities-
(a)    are permitted in terms of subsection (1); or
(b)    may, in exceptional circumstances, be necessary in the course of-
 
(i)    the banking business of the banking institution, or in the course of the satisfaction of debts which may be incurred as a result of such banking business; or
(ii)    any trusteeship or the administration of the estate of a deceased person.
(3)    The Minister may, on the recommendation of the Bank, by notice in the Gazette
define the activities of a banking institution contemplated in subsection (2).
(4)    If a banking institution fails to comply with this section, or conducts activities which are in contravention of this section, the Bank may by means of a written notice delivered to such banking institution mutatis mutandis in accordance with section 26(3)(d) instruct such banking institution to, within the period of time specified in the instruction, comply with this section or to discontinue the activities so conducted in contravention of this section, as the case may be.
(5)    If a banking institution fails to comply with an instruction under subsection (4), the Bank may, under section 15, cancel the authorisation to conduct banking business granted to the banking institution.
(6)    The Bank may, upon a written application made by a banking institution and delivered to the Bank, and subject to such conditions as the Bank may impose, exempt the banking institution from the restrictions in subsection (2), or from such provisions of that subsection as the Bank may specify in the exemption.
40    Limitation on investment in property
(1)    No banking institution shall, subject to the restrictions in this section, directly or indirectly, purchase, acquire or take on lease any immovable property, except as may be necessary for the purposes of conducting its banking business, for housing its staff, or for such other purposes or in such other circumstances as the Bank may determine.
(2)    The total amount of the investments made, or disbursed in respect of the purchases, acquisitions or leases by a banking institution under subsection (1), shall unless otherwise approved by the Bank upon a written application and on good cause shown by the banking institution concerned, not exceed the amount of the capital funds of the banking institution.
(3)    A banking institution may, against any immovable property, secure a debt owing to itself by, or an advance made or to be made by itself to, any person, whether or not the ownership in respect of the property vests in, or the property is registered in the name of, the person or any other person.
(4)    In the event of a default in the repayment of a debt or an advance referred to in subsection (3), or if the property referred to in that subsection is for any reason sold in execution or in any other manner, the banking institution concerned may, subject to subsection (5), acquire such property.
(5)    The acquisition of property by a banking institution under subsection (4) shall for a period of five years from the date of the acquisition, not be deemed property acquired under subsection (1).
PART VI
DIRECTORS, PRINCIPAL OFFICERS AND AUDITORS (ss 41-45)
41    Directors and principal officers and executive officers of banking institutions
(1)    The number of directors of a banking institution, subject to subsection (2), may not be less than five.
(2)    Not more than one half of the total number of the directors contemplated in subsection (1) may be employed by the banking institution concerned, or by any of its subsidiaries or by its holding company, including any of the subsidiaries of the holding company, as the case may be.
(3) ......
 
(4)    The Bank may, upon a written request by a banking institution, in writing exempt the banking institution from subsection (1) or (2) for such period, and subject to such conditions, as the Bank may impose and specify in such exemption.
(5)    Subject to subsection (6), the Bank may determine-
(a)    the conduct and the qualifications applicable to, or to be complied with by; and
(b)    the manner of, and the criteria and procedures relating to, the election or appointment of a person as,
a director or the principal officer or executive officer of a banking institution or controlling company.
(6) ......
(7)    The board of directors of a banking institution or controlling company-
(a)    is responsible for the good corporate governance and business performance of the banking institution or controlling company;
(b)    must ensure that the board is in full control of the affairs and business operations of the banking institution or controlling company;
(c)    must ensure, and report to the shareholders at the annual general meeting of the banking institution or controlling company, that the internal controls and systems of the banking institution or controlling company-
(i)    are designed to provide reasonable assurance as to the integrity and reliability of the financial statements of the banking institution or controlling company, and to adequately safeguard, verify and maintain accountability of its assets;
(ii)    are based on established and written policies and procedures, and are implemented by trained and skilled officers with an appropriate segregation of duties; and
(iii)    are continuously monitored, reviewed and updated by the board of directors to ensure that no material breakdown occurs in the functioning of such controls, procedures and systems;
(d)    immediately inform the Bank if they have reason to believe that-
(i)    the banking institution or controlling company may not be able to properly conduct its business as a going concern;
(ii)    the banking institution or controlling company appears to be, or will in the near future be, unable to meet all, or any of, its obligations;
(iii)    the banking institution or controlling company has suspended, or is about to suspend any payment of any kind; or
(iv)    the banking institution does not, or may not be able to, meet its capital requirements determined by or under section 28; and
(e)    constitute from among its members an audit committee as contemplated in section 42.
(8)    A director, in relation to the banking institution or to the controlling company of which he or she is a director, must act honestly and in good faith in the best interest and for the benefit of the banking institution and its depositors, or of the controlling company, as the case may be, and must in the performance of his or her functions as a director comply with this Act.
(9)    The principal officer of a banking institution or controlling company or-
(a)    any other officer of the banking institution or controlling company acting on his or her behalf, must, despite any action taken by the board of directors, immediately inform the Bank if he or she has reason to believe that any of the events contemplated in subsection (7)(d) may, or is likely to, occur;
(b)    a principal officer or manager of a branch of a banking institution, may not-
(i)    engage in any commercial business activities other than-
(aa) for or on behalf; and
(bb) in his or her capacity as an officer, of the banking institution; or
 
(ii)    be an agent of any other person engaged in any business contemplated in subparagraph (i),
unless the position held by such person is that of a director of a company which is in liquidation, whether provisionally or final, or is being wound up or is under judicial management, or if the Bank, on the recommendation of the board of directors of the banking institution, has exempted the principal officer or the manager from this paragraph.
(10)    No director of a banking institution or a member of a committee of the board of directors established for the purpose of granting credit to customers, and no principal officer or a manager of a division or a branch, may take part in the discussion or consideration of, or the taking of a decision relating to, any matter-
(a)    in which-
(i)    he or she or any of his or her close relatives;
(ii)    any company in which he or she or any of his or her close relatives is a substantial shareholder; or
(iii)    any other organisation in which he or she or any of his or her close relatives is a partner or member,
has any personal or economic interest; or
(b)    which is, subject to subsection (11), of particular economic interest to a municipality, company, association or any other public or private institution towards which he or she has, in his or her capacity as mayor, board member, manager or representative, a duty to protect the economic interests of such municipality, company, association or institution.
(11)    Paragraph (b) of subsection (10) does not apply in respect of the election of officers or the consideration of remuneration relating to positions of trust.
(12)    Before a matter contemplated in subsection (10) is considered by the decision-making body concerned, any person who is not entitled to take part in the consideration of, or the taking of a decision relating to, the matter must-
(a)    inform the decision-making body accordingly; and
(b)    recuse himself or herself from the meeting.
(13)    The proceedings contemplated in subsection (12) must be recorded in the minutes of the meeting of the decision-making body concerned.
(14)    Every banking institution or controlling company must give the Bank a written notice of the nomination of any person for appointment as a director or principal officer or executive officer by furnishing the Bank with information in the manner and form determined by the Bank, but the notice must reach the Bank at least 30 days prior to the proposed date of appointment;
(15)    The Bank may object to the proposed nomination for appointment referred to in subsection (14) on grounds that such director or principal officer or executive officer is not fit and proper to hold such position as determined by the Bank, and must within 20 days of receipt of the notice referred to in subsection (14) deliver a written notice stating the grounds of its objection to the appointing banking institution or controlling company;
(16)    If the Bank objects to the proposed appointment as envisaged in subsection (15), the banking institution or controlling company, may not appoint the nominee and any purported appointment has no legal effect.
(17)    If the banking institution or controlling company disputes the Bank's objection, the Bank must give such person reasonable opportunity to make representation to the Bank.
(18)    After considering the banking institution's or controlling company's representation made under subsection (17), if any, the Bank may-
(a)    accede to the nomination of the director or principal officer or executive officer, with or without conditions; or
(b)    uphold its objection,
 
and must in writing inform the banking institution or controlling company of its decision. [Sec 41 substituted by sec 22 of Act 14 of 2010.]
42    Audit committee
(1)    The audit committee established by the board of directors of a banking institution in terms of section 41(7)(e) shall, subject to this section or to the determinations issued by the Bank, have such powers, duties and functions as the board of directors may specify and inform the audit committee in writing.
(2)    The audit committee referred to in subsection (1) consists of so many members, but not less than three, as the banking institution may decide on, who are all directors without any executive responsibility in the banking institution.
[Subsec (2) substituted by sec 23 of Act 14 of 2010.]
(3)    The board of directors of the banking institution concerned shall, from amongst the members of the audit committee concerned, designate a chairperson for the audit committee, which chairperson shall, subject to subsection (5), have the powers, duties and functions as decided on by the banking institution.
(4)    The audit committee shall meet not less than four times during any financial year of the banking institution concerned, which meetings shall be attended by-
(a)    the members of the audit committee;
(b)    the officer responsible for the internal audit function of the banking institution;
(c)    the auditor of the banking institution appointed in terms of section 43;
(d)    any other auditor of the banking institution; and
(e)    the officer responsible for the financial or treasury functions of the banking institution.
(5)    The powers, duties and functions of the audit committee are to-
(a)    ascertain the nature, scope or extent of the audit of the banking institution to be undertaken by the auditor appointed in terms of section 43;
(b)    review the internal audit programme of the banking institution, to ensure
co-ordination between the internal audit programme and the audit undertaken by the auditor appointed in terms of section 43, and to ensure that sufficient trained and skilled officers of appropriate standing, to the satisfaction of the audit committee, in the banking institution undertake and implement the internal audit programme of the banking institution;
(c)    review and update the internal controls and systems of the banking institution;
(d)    consider, discuss and make recommendations to the board of directors relating to any issue or reservation raised by the auditor appointed in terms of section 43, or any finding made during internal investigations arising from the internal audit programme of the banking institution;
(e)    review the financial statements of, or to make recommendations to, the banking institution relating to the financial statements; and
(f)    perform such other duties and functions as the board of directors of the banking institution may specify.
(6)    The company secretary shall be the secretary of the audit committee and shall have such duties and perform such functions as the board of directors of the banking institution may specify.
43    Appointment of auditor
(1)    Notwithstanding Chapter X of the Companies Act, a banking institution or controlling company shall annually appoint an auditor for the banking institution or controlling company.
[Subsec (1) amended by sec 41 of Act 14 of 2010.]
(2)    A banking institution or controlling company must, 10 days prior to the annual meeting, submit details regarding the auditor it intends to appoint in terms of subsection
 
(1)    in the form and manner required by the Bank, and apply to the Bank for the Bank's approval of the appointment.
[Subsec (2) substituted by sec 24 of Act 14 of 2010.]
(3) On receipt of an application in terms of subsection (2), the Bank shall-
(a)    refuse to approve the appointment;
(b)    approve the appointment; or
(c)    approve the appointment subject to such conditions as the Bank may impose and specify,
and shall in writing inform the banking institution of its decision.
(4)    If the Bank under paragraph (c) of subsection (3) approves the appointment subject to conditions, the Bank shall in writing furnish the banking institution or controlling company concerned with particulars of the conditions so imposed.
(5)    No person shall hold office as an auditor of a banking institution or controlling company unless his or her appointment as such has been approved by the Bank under subsection (3).
(6)    The Bank may determine criteria or procedures relating to the appointment of, the conduct by, the duties of, and the requirements or qualifications in respect of, an auditor.
(7)    If-
(a)    a banking institution or controlling company fails to appoint an auditor in terms of subsection (1);
(b)    the Bank under subsection (3) refuses to approve the appointment of an auditor appointed by a banking institution or controlling company; or
(c)    an auditor appointed by a banking institution or controlling company in terms of subsection (1) is disqualified in terms of section 44 to act as an auditor,
the Bank may, for or on behalf of the banking institution or controlling company, appoint an auditor.
(8)    An auditor appointed by the Bank for or on behalf of a banking institution or controlling company under subsection (7) shall be deemed to be an auditor appointed by the banking institution or controlling company in terms of subsection (1) and approved by the Bank under subsection (3).
(9)    The Bank may, at any time, withdraw an approval granted under subsection (3) or an appointment made under subsection (7), if the auditor concerned-
(a)    fails to comply with-
(i)    the conditions, if any, imposed by the Bank under paragraph (c) of subsection (3); or
(ii)    the criteria determined by the Bank as contemplated in subsection (6); or
(b)    becomes disqualified in terms of section 44 to act as an auditor. [Sec 43 amended by sec 41 of Act 14 of 2010.]
44    Disqualification for appointment as auditor
No person shall qualify to be appointed or to act as an auditor of a banking institution or controlling company, if-
(a)    any of the grounds for disqualification stipulated by section 275 of the Companies Act applies to the person;
(b)    the appointment of the auditor by a banking institution or controlling company was not approved by the Bank, or an approval granted by the Bank has been withdrawn under section 43(9);
(c)    the auditor, either directly or indirectly, has a material interest in the banking institution or controlling company or in its affiliate or associate;
(d)    any other circumstances exist which, in the opinion of the Bank, may impair the independence or impartiality of the auditor; or
 
(e)    the criteria, or any of the criteria determined by the Bank as contemplated in section 43(6) are not complied with.
[Sec 44 amended by sec 41 of Act 14 of 2010.]
45    Duties and functions of auditor
(1)    An auditor appointed by a banking institution or controlling company in terms of section 43 shall in writing inform the board of directors of the banking institution or controlling company and the Bank of-
(a)    the banking institution's or controlling company's ability or inability to meet with the requirements of section 28 or 31;
(b)    any other matter which the auditor becomes aware of in the performance of his or her duties or functions as an auditor and which, in his or her opinion, may-
(i)    prejudice the ability of the banking institution or controlling company to continue conducting business as a going concern;
(ii)    be detrimental to the interest of the customers of the banking institution or controlling company concerned or the general public; or
(iii)    violate the principles of sound financial management or the maintenance of adequate internal controls and systems by, the banking institution or controlling company.
(2)    The duties of an auditor appointed in terms of section 43 shall include the duties of an auditor-
(a)    in terms of the Companies Act;
(b)    in terms of this Act or any other law; and
(c)    determined by the Bank as contemplated in subsection (6) of that section.
(3)    The auditor shall assess, and in writing comment on, the report of the board of directors made in terms of section 41(7)(c) before the report is tabled at the annual general meeting.
(4)    A copy of the comments made by an auditor in terms of subsection (3), signed by the auditor and by the chairperson of the board of directors, shall be transmitted by the banking institution or controlling company concerned to the Bank not more than 20 days after the receipt by the board of the auditor's comments.
(5)    If an auditor, acting in good faith and not negligently or with wrongful intent, furnishes any information to any person in terms of subsection (1), (2) or (4), or makes any comments in terms of subsection (3), such actions by the auditor shall not-
(a)    constitute a contravention of any provision of any law or a breach of a code of professional conduct which the auditor may be subject to; or
(b)    cause the auditor to incur any liability to any person as a consequence of the furnishing of the information or the making of the comments.
[Sec 45 amended by sec 41 of Act 14 of 2010.]
PART VII SUPERVISION BY BANK (ss 46-60)
46    Financial and other records
(1)    A banking institution must, in the official language of Namibia, keep core banking systems that contain records and documentation covering core functional areas and such accounting and other records as are necessary to reflect the true and fair state of its affairs and to explain its transactions and financial position in such a manner so as to enable the Bank to ascertain whether the banking institution is complying with this Act.
(2)    The core banking systems, accounting and other records contemplated in subsection (1) must be kept in Namibia and must, subject to subsection (4), comply with the requirements-
(a)    of section 284 of the Companies Act; and
 
(b)    determined by the Bank,
and must be kept and maintained by the banking institution for a period of not less than five years after the date of the last entry in such records.
(3)    A person may not, with the intent to deceive, in any book, record, report, statement or other document relating to the business, affairs, transactions, conditions, property, assets, liabilities or accounts of a banking institution or controlling company-
(a)    make a false entry, knowing such entry to be false, or cause such an entry to be made; or
(b)    omit an entry, or cause such an entry to be omitted; or
(c)    alter, abstract, conceal, remove or destroy an entry, or cause an entry to be altered, abstracted, concealed, removed or destroyed.
(3) For the purposes of this section, "other records", include any book, record, report, statement or other document relating to the business, affairs, transactions, conditions, property, assets or liabilities of a banking institution or controlling company.
[Sec 46 substituted by sec 25 of Act 14 of 2010.]
47    Financial statements
(1)    The Companies Act, subject to the further provisions of this section, applies to the financial statements of a banking institution or a controlling company.
(3) Despite subsection (1)-
(a)    the Bank may determine-
(i)    that all or any of the exemptions contained in paragraph 70 of Part V of Schedule 4 to the Companies Act may not, subject to such determination, apply to a banking institution or a controlling company;
(ii)    additional requirements not in conflict with this Act relating to the financial statements contemplated in subsection (1); and
(b)    a banking institution or a controlling company must-
(i)    in its annual financial statements disclose the name of a shareholder who holds 20 per cent or more of the total voting rights in the banking institution or a controlling company;
(ii)    despite anything to the contrary in any other law, submit to the Bank, within three months after the end of its financial year, but at least 30 days before its annual general meeting, its audited financial statements; and
(iii)    subject to subsection (4) within a period of one month from the date of acceptance of the financial statements at an annual general meeting of the banking institution or controlling company, publish the financial statements in a newspaper as may be approved, and in the form specified, by the Bank.
(3)    Despite anything to the contrary in the Companies Act, or any other law, a banking institution or controlling company must, within six months after the end of its financial year, hold its annual general meeting.
(4)    The Bank may, at the written request of a banking institution or controlling company and subject to such conditions as the Bank may impose, in writing extend any period of time specified in subsection (2)(b)(ii), (2)(b)(iii) or (3), as the case may be.
(5)    If the Bank is satisfied that the financial statements of a banking institution or controlling company do not comply with this Act or with any additional requirement determined by the Bank in accordance with subsection (2)(a)(ii), or contain information that may be misleading in any way, or are not published in the form specified by the Bank, the Bank may by notice in writing require the banking institution or controlling company-
(a)    to amend or correct the financial statements to comply with this Act or with the additional requirements;
(b)    to correct the misleading information;
(c)    to re-publish the amended or corrected financial statements; or
(d)    to submit to the Bank-
 
(i)    such further or additional documents or information; or
(ii)    such explanation or amplification relating to any document or information, to the satisfaction of the Bank or as the Bank may consider necessary.
[Sec 47 substituted by sec 26 of Act 14 of 2010.]
48    Disclosure of paid-up share capital
If a banking institution publishes a statement or issues a document in which the amount of its authorised share capital is disclosed, the amount of its paid-up share capital shall also be disclosed in such statement or document.
49    Furnishing of certain statements, notices, returns and information
(1)    A banking institution or controlling company shall, at such times and in such manner as the Bank may in writing require and notify the banking institution or controlling company mutatis mutandis in accordance with section 26(3)(d), submit to the Bank a statement containing full particulars of all the assets and liabilities of the banking institution or controlling company, including information relating to all the assets and liabilities of the banking institution or controlling company outside Namibia.
(2)    In addition to the particulars to be furnished to the Bank by a banking institution or controlling company as specified and contemplated in subsection (1), the Bank may at any time by means of a notice delivered to the banking institution or controlling company demand from any banking institution or controlling company or from its principal officer to furnish the Bank with such information relating to the banking business of the banking institution or controlling company or any of its transactions, and within such period of time, as the Bank may specify in the demand.
(3)    If a banking institution or controlling company-
(a)    forwards to its shareholders a notice of a meeting or of the declaration of a dividend, or a report on its activities during a financial year, or part of a financial year;
(b)    in terms of section 170(2) of the Companies Act, gives notice to the Registrar of Companies of any change in the situation of its registered office or of its postal address;
(c)    in terms of section 216(2) of the Companies Act, lodges with the Registrar of Companies a return regarding its directors; or
(d)    in terms of section 302(4) of the Companies Act, forwards to the Registrar of Companies a copy of its annual financial statements,
the banking institution or controlling company shall simultaneously with the forwarding or lodging of the notice, report, return or statements, as the case may be, furnish the Bank with a copy of the notice, report, return, or statements, as the case may be, so forwarded or lodged.
(4)    A banking institution or controlling company shall-
(a)    within a period of one month after a general meeting of shareholders, forward to the Bank a copy of the minutes of the meeting kept in terms of section 204 of the Companies Act; or
(b)    at the written request of the Bank, within the period of time and in the form stated in the request, furnish the Bank with particulars to enable the Bank to ascertain whether the banking institution or controlling company is complying with section 28.
(5)    The Bank may require the auditors of a banking institution or controlling company appointed in terms of section 43 to certify as correct and accurate any information submitted by the banking institution to the Bank in terms of this section.
(6)    A banking institution or controlling company which fails to furnish the Bank with information required in terms of this section, within the specified period of time, or
 
knowingly and repeatedly furnishes the Bank with incorrect or incomplete information is liable to a fine determined by the Bank.
[Subsec (6) added by sec 27 of Act 14 of 2010.]
[Sec 49 amended by sec 41 of Act 14 of 2010.]
50    Reporting of certain transactions by banking institutions
The Bank may require a banking institution to report to the Bank, or to any other person or authority the Bank may specify, any money transaction which it becomes aware of and which indicates or arises a suspicion that the person conducting, or any person involved in, the transaction may be engaged in an illegal activity.
51    Extension of time
If a banking institution or controllling company has to furnish any information or document to the Bank in terms of this Act within a specified period of time, the Bank may, at the written request of the banking institution or controlling company, in writing extend the period of time specified for the furnishing of the information or document, as the case may be.
[Sec 51 amended by sec 41 of Act 14 of 2010.]
52    Examination by Bank
(1)    The Bank may, in order to determine whether a banking institution or controlling company is in a sound financial condition and whether the provisions of this Act or any other legal requirements pertaining to the business being conducted have been, and are being, complied with by the banking institution or controlling company, and without prior notice, at any reasonable time, through or by means of-
(a)    its own officers; or
(b)    any person appointed by the Bank on account of his or her special knowledge or expertise, including a legal practitioner registered to practise as such under the Legal Practitioners Act, 1995 (Act 15 of 1995); or
(c)    the auditor of a banking institution or any other auditor appointed by the Bank, conduct an examination of the affairs of a banking institution or controlling company.
(2)    Section 6 applies with necessary changes to an examination under this section.
(3)    In the conducting of an examination in terms of subsection (1), the Bank, or the person appointed by the Bank under that subsection, in addition to the powers, duties and functions he or she or it has in terms of this Act, has the powers and duties in all respects corresponding to the powers and duties conferred or imposed by the law regulating financial institutions and markets upon the Authority or inspector contemplated in that law.
(4)    The person, legal practitioner or auditor referred to in subsection (1), upon the completion of his or her examination in terms of that subsection, must submit a report to the Bank relating to the examination so conducted, in the form and manner as the Bank may require.
(5)    The Bank may, if an examination contemplated in subsection (1) reveals that the banking institution or controlling company concerned is not conducting its affairs in terms of this Act or is contravening any other law, recover from the banking institution or controlling company the costs incurred by the Bank relating to the examination, including the fees and expenses of a person appointed by the Bank under subsection (1).
(6)    If not less than one-fifth of the total number of the depositors of a banking institution representing not less than one-fifth of the total value of the deposits made with the banking institution in terms of subsection (1), the Bank, subject to subsection (7), must conduct an examination with necessary changes in terms of this section.
(7)    The Bank must only conduct an examination contemplated in subsection (6) if the depositors referred to in that subsection, together with their request as contemplated in
 
that subsection, provide the Bank with proof, to the satisfaction of the Bank, that such an examination may be justified.
(8)    After the completion of an examination under this section, the Bank may furnish the board of directors of the banking institution or the controlling company concerned with a report relating to the examination, which report must contain the findings of the Bank in respect of the conducting of business by the banking institution or the controlling company.
(9)    In the report furnished to the board of directors of the banking institution or the controlling company in terms of subsection (8), the Bank may direct such board of directors to, within the period of time specified in the report, rectify the deficiencies mentioned in the report.
(10)    For the purpose of this section and of section 53, a banking institution, includes an affiliate of the banking institution.
(11)    The examination report prepared and furnished to the board of directors of a banking institution or a controlling company in terms of subsection (8) remains the property of the Bank and no disclosure of any portion thereof is permitted, except where such disclosure or exchange takes place between directors, officers or employees of that banking institution or the controlling company and is necessary to facilitate the day to day efficient functioning of that banking institution.
[Sec 52 substituted by sec 28 of Act 14 of 2010.]
53    Production of records and furnishing of information
(1)    For the purpose of an examination by the Bank under section 52, the banking institution concerned shall produce or furnish to the person conducting the examination-
(a)    all cash or other liquid assets, books, minutes, vouchers, records, accounts, deeds, securities or other documents in the possession or custody of the banking institution and relating to the business of the banking institution; and
(b)    all information concerning the business of the banking institution as may be required by such person,
at such time and place as shall not unduly disrupt the conduct of the normal business of the banking institution.
(2)    Any person authorised by the Bank in writing to conduct an examination under section 52, may, for the purposes of such examination, take possession of any document or other item referred to in subsection (1) of, and to which such person has access under, this section.
(3)    Any banking institution, its affiliate or associate who fails to allow any person referred to in subsection (2) access to or possession of, or refuses or fails to produce to such person any document or other item referred to in, or to give information in accordance with, that subsection, or to provide to the person suitable facilities for the purposes of conducting an examination under that subsection, is liable to a fine determined by the Bank.
[Subsec (3) substituted by sec 29 of Act 14 of 2010.]
54    Approval of special resolutions, amalgamation and transfer of assets and liabilities
[Heading substituted by sec 30(a) of Act 14 of 2010.]
(1)    A banking institution or controlling company shall not, without the prior written approval of the Bank-
(a)    enter into a merger or consolidation;
(b)    transfer, or otherwise dispose of, the whole or part of its property, whether situated in or outside Namibia, other than in the ordinary course of business;
(c)    effect a reduction of its paid-up share capital;
(d)    change the name of the banking institution or controlling company; or
(e)    take any other action which requires a special resolution of the shareholders of the banking institution or controlling company.
 
(2)    A banking institution or controlling company which requires the approval of the Bank in terms of subsection (1) shall in writing apply to the Bank for the granting of the required approval and shall, to the satisfaction of the Bank, in the application furnish the Bank with full particulars relating to the proposed transaction or action.
(3)    After considering an application made in terms of subsection (2), the Bank shall-
(a)    refuse the application;
(b)    grant the application; or
(c)    grant the application subject to such conditions as the Bank may impose,
and shall in writing inform the banking institution or controlling company of its decision under this subsection.
(4)    If the Bank, under paragraph (a) of subsection (3) refuses an application made in terms of subsection (2), or under paragraph (c) of that subsection grants an application subject to conditions, the Bank shall in writing furnish the banking institution or controlling company with reasons for the refusal of the application or for the imposition of the conditions, as the case may be.
(5)    If the Bank in writing approves an application referred to in subsection (1)(a) or
(b)    in terms of subsection 3(b) or (c)-
(a)    the notice of the passing of a special resolution by the shareholders of the banking institution or controlling company together with a certified copy of the Bank's approval in terms of subsection 3(b) or (c)-
(i)    containing full particulars of the merger, consolidation, transfer or other disposition; and
(ii)    duly certified by two directors and the secretary of each party to the merger, consolidation, transfer or other disposition,
must be sent by each of the parties to the Registrar of Companies, who must register the merger, consolidation, transfer or other disposal, with the Bank and the Registrar of Deeds;
(b)    upon registration of the special resolution by the Registrar of Companies-
(i)    all the assets and liabilities of the banking institution or controlling company involved in the merger or consolidation become the assets and liabilities of the merged or consolidated banking institution or controlling company;
(ii)    all rights and obligations that vested in the respective banking institutions or controlling company prior to the merger or consolidation are, from the date of registration by the Registrar of Companies, vested in the merged or consolidated banking institution or controlling company; and
(iii)    in the case of a transfer or other disposal of property in terms of subsection (1)(b), such property is vested in the transferee;
(c)    upon receipt of a certified copy of the special resolution registered by the Registrar of Companies, the Registrar of Deeds must endorse the transfer of rights and obligations from the banking institutions or controlling company who have merged or become consolidated to the merged or consolidated banking institution or controlling company on every deed, bond, instrument or document registered in the Deeds Registry; and
(d)    despite section 16 of the Deeds Registries Act, 1937 (Act 47 of 1937) and the date on which the transfer of such rights and obligations have been endorsed by the Registrar of Deeds, all such rights and obligations are transferred to the merged or a consolidated banking institution or controlling company on the date of registration of the special resolution by the Registrar of Companies.
[Subsec (5) added by sec 30(b) of Act 14 of 2010.] [Sec 54 amended by sec 41 of Act 14 of 2010.]
55    Undesirable practices
 
(1)    A banking institution shall not conduct, permit or become involved in the conducting of, an undesirable practice.
(2)    For the purpose of this section, "undesirable practice" in respect of a banking institution, subject to subsection (3), means-
(a)    the holding of shares in a company of which the banking institution is a subsidiary;
(b)    the holding of assets of the banking institution in the name of any other person, excluding any asset-
(i)    which is bona fide hypothecated to secure an actual or potential liability;
(ii)    in respect of which the Bank has, upon a written application made by the banking institution concerned, in writing approved that the asset may be held in the name of the other person; or
(iii)    ......
[Subpara (iii) deleted by sec 31 of Act 14 of 2010.]
(c)    the payment of dividends on shares out of profits before pre-incorporation expenditure had been accounted for;
(d)    the entering into a repurchase agreement in respect of a fictitious asset or an asset created by means of a simulated transaction;
(e)    the entering into a repurchase agreement without-
(i)    the agreement being substantiated by a written document signed by the other party to the agreement; and
(ii)    the details of the agreement being recorded in the accounts of the banking institution as well as the accounts, if any, kept by the banking institution in the name of the other party; and
(f)    any other practice which the Minister may, on the recommendation of the Bank, by notice in the Gazette declare an undesirable practice in respect of all banking institutions, or in respect of the banking institution or banking institutions specified in the notice.
(3)    Notwithstanding subsection (2), the Bank may in writing notify a banking institution that a practice employed by the banking institution and specified in the notice, constitutes an undesirable practice in respect of the banking institution, irrespective of whether the practice so specified in the notice is an undesirable practice in terms of that subsection.
55A Pyramid Schemes
(1)    A person or banking institution may not conduct, permit or become involved in the conducting of, or the acceptance or obtaining of money, directly or indirectly, from members of the public, as a regular feature of a business practice, with the prospect of any of such members (hereinafter referred to as the "participating members") receiving payments or other moneyrelated benefits, directly or indirectly-
(a)    on or after the introduction of other members of the public to the business practice (hereinafter referred to as the "new participating members"), from which new participating members, in their turn, money is accepted or obtained, directly or indirectly, as a regular feature of the business practice, whether or not-
(i)    the introduction of the new participating members is limited to their introduction by participating members or extends to the introduction of the new participating members by other persons; or
(ii)    new participating members are required to acquire movable or immovable property, rights or services;
(b)    on or after the promotion, transfer or change of status of the participating members or new participating members within the business practice; or
(c)    from funds accepted or obtained from participating members or new participating members in terms of the business practice,
 
or the soliciting of, or advertising for, directly or indirectly, money or persons for introduction into or participation in a business practice in terms of the business practice referred to in this section, but does not include any activity of-
(i)    the public sector, governmental or other institution; or
(ii)    any person or category of persons, designated by the Minister, on the recommendation of the Bank, by notice in the Gazette, if such activity is performed in accordance with the conditions that the Minister may specify in the notice.
(2)    A person who contravenes subsection (1) commits an offence and is liable to a fine prescribed by section 72(2)(a).
[Sec 55A inserted by sec 32 of Act 14 of 2010.]
56    Powers of the Bank regarding banking institutions
(1)    If the Bank is satisfied-
(a)    that a banking institution, or an affiliate or associate of the banking institution-
(i)    is insolvent, or is likely to become insolvent;
(ii)    is conducting its business-
(aa) in contravention of any provision of this Act or of any other law pertaining to banking business; or
(bb) in a manner detrimental to its customers or the general public; or
(iii)    is unable to meet all or any of its obligations, or is likely to become unable to so meet its obligations; or
(iv)    is about to suspend any, or part of any, payment; or
(b)    that any of the officers or substantial shareholders of the banking institution are no longer fit and proper persons to satisfactorily fill their positions in, or in relation to, the banking institution,
the Bank may, in addition to any other action that it may take under this Act or under any other law, take any of the actions contemplated in subsection (2).
(2)    The Bank may, in any of the circumstances contemplated in subsection (1), by means of an order in writing addressed and delivered to the banking institution concerned, and in the manner and within the period of time, or before a date, specified in the order-
(a)    require the banking institution, affiliate or associate, as the case may be, to-
(i)    take the action or steps, or to discontinue any action, as the case may be, relating to the banking institution, to affiliate or associate, or to the officers or substantial shareholders;
(ii)    discontinue the extension of credit for such period of time;
(iii)    subject to the Labour Act, 2007 (Act 7 of 2007), but despite any provision to the contrary-
(aa) in any contract of employment entered into between the banking institution, its affiliate or associate, and any director or officer; or
(bb) in the memorandum and articles of association of the banking institution, its affiliate or associate,
remove from office a director or officer;
[Subpara (iii) amended by sec 33(a) of Act 14 of 2010.]
(iv)    appoint a person-
(aa) as a director of the banking institution; or
(bb) to advise the banking institution in relation to the proper conduct of its business,
and to specify that the person so appointed shall be paid by the banking institution the remuneration; or
(b)    if the Bank is satisfied that the banking institution is conducting its business in a manner detrimental to the interest of its customers or the general public, without prejudice to the powers of the Bank under paragraph (a), and in addition to any action taken by the Bank under that paragraph, assume control of the entire
 
property, business and affairs of the banking institution, or any part thereof, and conduct the entire business and affairs of the banking institution, or the part so assumed control of, for and on behalf of the banking institution, or appoint a person to so conduct the business and affairs of the banking institution in the name of the Bank.
(3)    A banking institution, its affiliate or associate, as the case may be, shall be bound by, immediately comply with, and give effect to, an order under subsection (2).
(4)    A director or an officer removed from office under subsection (2) ceases to hold the office from which he or she is so removed with effect from the date specified in the order made under that subsection, and after the date so specified-
(a)    may not hold any office or participate in the affairs of-
(i)    the banking institution from which he or she was removed;
(ii)    any other banking institution; or
(iii)    the controlling company; and
(b)    is not entitled to the payment of any remuneration from the banking institution or any other banking institution or the controlling company,
provided that the Bank may, upon written application by such director or officer rescind or modify the removal order subject to any conditions as the Bank may impose.
[Subsec (4) substituted by sec 33(b) of Act 14 of 2010.]
(5)    No order shall be made under subsection (2) unless the banking institution has been given a reasonable opportunity to make representations to the Bank relating to the proposed order.
(6)    The costs and expenses incurred by the Bank, or the remuneration payable to any person appointed by the Bank under section (2), shall, notwithstanding any provision to the contrary in the Insolvency Act, 1936 (Act 24 of 1936) or in any other law contained, be payable as a preferential claim out of the funds of the banking institution.
(7)    If the Bank assumes control of a banking institution pursuant to an order made under subsection (2), the banking institution, its directors and officers shall submit the property, business and affairs of the banking institution so assumed to the control of the Bank, and shall provide or make available to the Bank or to the person appointed under that subsection, as the case may be, all the facilities required to properly conduct the business and affairs of the banking institution.
(8)    In the circumstances contemplated in subsection (7), the Bank or the appointed person, as the case may be, shall-
(a)    remain in control of the property, business and affairs of the banking institution for or on behalf of the banking institution; and
(b)    execute all the powers of the banking institution or of its directors under the memorandum and articles of association of the banking institution,
until such time as the order made under subsection (2) is cancelled by the Bank. (9) ......
[Subsec (9) deleted by sec 33(c) of Act 14 of 2010.]
(10) No order made under subsection (2) shall confer upon, or vest in, the Bank or any person appointed by the Bank, any title to, or any beneficial interest in, any property of the banking institution to which the order relates.
57    Additional powers of Bank to apply for capital reduction or to acquire shares in a banking institution
(1)    If the Bank assumes control of a banking institution in terms of an order made under subsection (2) of section 56, and if the share capital of the banking institution has been lost or is not represented by available assets, the Bank or the person appointed by the Bank under paragraph (a)(iv) of that subsection, as the case may be, may apply to the High Court for an order reducing the share capital of the banking institution so as to reflect the actual available assets of the banking institution, and the High Court may, notwithstanding
 
any provision to the contrary in any other law, grant such an application and issue such an order.
(2)    If the High Court issues an order under subsection (1), the share capital of the banking institution shall be reduced in accordance with the order so issued, and, notwithstanding any provision to the contrary in any other law or in the memorandum and articles of association of the banking institution, the Bank or the person referred to in that subsection, may issue new shares to an amount specified by the Bank in order to satisfy the capital requirements of the banking institution as determined under section 28.
(3)    Notwithstanding any provision to the contrary contained in the Bank of Namibia Act, 1997, or in any other law, but subject to subsection (4), the Bank may, with the concurrence of the Minister, subscribe to and acquire any shares in a banking institution issued under subsection (2).
(4)    If a banking institution referred to in subsection (3) at any time becomes able to satisfy the capital requirements relating to the banking institution as determined under section 28, the Bank shall dispose of the shares in the banking institution acquired by the Bank under that subsection within such period of time as the Minister, in consultation with the Bank, may in writing determine.
58    Winding-up or judicial management
(1)    Notwithstanding section 346, 349 or 427 of the Companies Act, no person shall apply for the winding-up or judicial management, or commence with a voluntary
winding-up, as the case may be, of a banking institution, unless such person has given the Bank 14 days written notice of his or her or its intention to so apply for the winding-up or judicial management, or to commence with the voluntary winding-up, as the case may be, of the banking institution.
(2)    Upon receipt of a notice contemplated in subsection (1), the Bank may-
(a)    if an application for judicial management of the banking institution is to be made, take such action under section 56 or 57 as the Bank may consider appropriate; or
(b)    if a voluntary winding-up is to be commenced with, notwithstanding the provisions of the Companies Act, allow the voluntary winding-up to be proceeded with, subject to the terms and conditions which the Bank may impose.
(3)    The Bank may, if an application for the winding-up of a banking institution is brought to the High Court-
(a)    appear before the Court at the hearing of the application; or
(b)    make representations to the Court relating to the application.
(4)    The Bank may, notwithstanding section 346 of the Companies Act, or notwithstanding having taken action under section 56 or 57 of this Act, make an application to the High Court for the winding-up of any banking institution.
(5)    Despite anything to the contrary in the Companies Act or any other law, the Master of the High Court-
(a)    may not appoint a person as provisional liquidator, provisional judicial manager, liquidator or judicial manager of a banking institution, other than a person recommended by the Bank under paragraph (b);
(b)    30 days before appointing a person for any position referred to in paragraph (a), must submit the particulars and qualifications, and experience, if any, of such person and other relevant information to the Bank for its recommendation; and
(c)    the Master of the High Court must appoint a person designated by the Bank, who, in the opinion of the Bank, has wide experience of, and is knowledgeable about the latest developments in, the banking industry, to assist a provisional liquidator, provisional judicial manager, liquidator or judicial manager referred to in paragraph
(a)    in the performance of his or her functions in respect of the banking institution concerned.
[Subsec (5) added by sec 34 of Act 14 of 2010.]
 
59    Proof and repayment of claims
(1)    Despite the provisions of any other law, in the event of winding-up of a banking institution, all assets of the banking institution must be made available to meet all deposit liabilities of the banking institution in the order of priority as determined by the Bank.
(2)    For the purpose of winding up of a banking institution, and despite any provision to the contrary in the Insolvency Act, 1936 (Act 24 of 1936), or in the Companies Act, or any other law, an entry in the books, accounts or records of the banking institution relating to a depositor of the banking institution, is prima facie proof of a claim of the depositor.
[Sec 59 substituted by sec 35 of Act 14 of 2010.]
60    Unclaimed monies or property after winding-up
(1)    Sections 410 and 411 of the Companies Act relating to unpaid dividends shall
mutatis mutandis apply to the funds of a banking institution wound up under that Act.
(2)    The Minister, on the recommendation of the Bank, may prescribe the procedures to be followed relating to the disposal of property held by a banking institution in its capacity as a lessor of a safe deposit box, as a trustee, a fiduciary or in any other capacity on behalf of any person, and which property had not been claimed by, or been returned to, the rightful owner thereof.
PART VIII
GENERAL PROVISIONS (ss 61-75)
61    Agreements restricting competition
(1)    An agreement relating to the restricting of competition entered into by a banking institution with another banking institution or its affiliate or associate shall, unless the parties to such agreement are of the same corporate group, be submitted by the parties to the Bank for its approval.
(2)    An agreement referred to in subsection (1) shall, unless it is approved by the Bank under that subsection, be void ab initio.
62    Prohibition to accept deposits by insolvent banking institutions
(1)    A banking institution shall, if it is or becomes insolvent, not accept any monies as a deposit from any person, unless with the prior written approval of the Bank.
(2)    An approval by the Bank contemplated in subsection (1) shall specify the amount of, and the person from whom, a deposit may be taken by the banking institution.
(3)    No director of, and no officer with managerial responsibilities in, a banking institution shall, if he or she is aware that the banking institution is insolvent, receive, authorise, permit or allow the banking institution to accept deposits.
63    Insurance against loss due to negligence or dishonesty
A banking institution-
(a)    shall, subject to paragraph (b), contract an insurance policy with an insurer as defined in the Insurance Act, 1943 (Act 27 of 1943) and approved by the Bank, to insure itself to such an amount as the Bank in writing may approve, against any loss which the banking institution or any of its customers may suffer as a result of the negligence, dishonesty or fraud of any of the officers of the banking institution; or
(b)    may, if the insurance contemplated in paragraph (a)-
(i)    is not available; or
(ii)    is available, but at a premium which is, in the opinion of the Bank, too high in relation to the cover provided,
with the written approval of the Bank and in lieu of the insurance, maintain a special reserve account exclusively for the purpose of compensating any person in respect of any
 
loss suffered by the person as a result of the negligence, dishonesty or fraud referred to in paragraph (a) and which is, in the opinion of the Bank, sufficient for such purpose.
64    Confidentiality and secrecy
(1)    No person employed or duly authorised by the Bank to examine the affairs of a banking institution shall, subject to subsection (2) or except for the purpose of the performance or exercise of his or her duties or functions, or when lawfully required to do so by a court having jurisdiction or under any law, disclose any information acquired in the performance or exercise of such duties or functions.
(2)    If the Bank seeks advice from a qualified person on a matter of law, of accountancy or of valuation of property, or on any other matter requiring the exercise of professional skills, as the case may be, in order to enable the Bank to perform any of its functions under this Act, the Bank may, notwithstanding subsection (1), but subject to subsection (3), disclose to the qualified person such information as the Bank may deem necessary to ensure that the qualified person is properly informed with respect to the matters on which his or her advice is sought.
(3)    The qualified person referred to in subsection (2) shall be subject to the same duty of secrecy as a person employed by the Bank under subsection (1).
(4)    Notwithstanding the further provisions of this Act or of the Bank of Namibia Act, 1997, the Bank may, for the purpose of the prudential supervision of financial institutions, but subject to the confidentiality of the information transmitted, furnish information acquired by the Bank to an authority in Namibia or in a foreign state, country, colony or territory with supervisory responsibilities in respect of financial institutions in Namibia or in the foreign state, country, colony or territory concerned, as the case may be.
(5)    Subsection (1) shall apply to information received from an authority referred to in subsection (4).
(6)    Any person may, notwithstanding subsection (1), against payment of a fee determined by the Bank, inspect or obtain a copy of-
(a)    a certificate of authorisation; or
(b)    the memorandum and articles of association, of a banking institution.
(7)    A director or officer of a banking institution, during his or her tenure of office or employment, as the case may be, or after such tenure of office or employment, or any other person who for any reason has by any means access to any record, book, register, correspondence or other document, information or material relating to the affairs or the account of any customer of the banking institution, shall not, subject to subsection (10), provide, produce, divulge, reveal, publish or in any manner disclose to any other person, or make a record for any person, of any information or document whatsoever relating to the affairs or account of such customer.
(8)    Subsection (7) shall not apply to any record, book, register, correspondence or other document, information or material referred to in that subsection and which has lawfully been made available to the public from any source other than the banking institution concerned, or to any information which is in the form of a summary or collection of information set out in such a manner that does not enable information relating to any particular banking institution, or to any particular customer of a banking institution, to be ascertained or identified from such summary or collection.
(9)    A person who has any record, book, register, correspondence or other document or material referred to in subsection (7) in his or her possession, and which to his or her knowledge has been disclosed in contravention of that subsection, shall not in any manner whatsoever disclose such record, book, register, correspondence or other document or material to any other person.
(10)    Subsection (7) shall not apply to the disclosure of any record, book, register, correspondence or other material referred to in that subsection-
 
(a)    which the customer concerned, or his or her authorised representative, has in writing given permission to be disclosed;
(b)    if the estate of the customer has been sequestrated, whether provisionally or final, or, if the customer is a body corporate, the body corporate has been, or is in the process of being, wound up;
(c)    if information is required by a party to a bona fide commercial transaction to which transaction the customer is a party, for the purpose of, subject to subsection (11), assessing the creditworthiness of the customer relating to such transaction;
(d)    for the purpose of instituting, or in the course of, any criminal proceedings;
(e)    for the purpose of instituting, or in the course of any proceedings-
(i)    between a banking institution and its customer, or his or her guarantor relating to the customer's transaction with the banking institution; or
(ii)    between the banking institution and two or more parties making opposing or adverse claims to money in a customer's account, if the banking institution seeks relief by way of interpleader proceedings;
(f)    if a writ of attachment or of execution attaching monies in an account of a customer of a banking institution is served on the banking institution;
(g)    if the disclosure is required or authorised by any other provision of this Act or by any other law;
(h)    if the disclosure may, subject to subsection (12), in terms of any law be made to a police officer investigating an offence specified in such law; or
(i)    if the disclosure is authorised by the Bank in writing.
(j)    if the exchange of individual customers' information takes place within a banking institution between directors, officers or employees of that banking institution and which is necessary to facilitate the day-to-day banking business.
[Para (j) added by sec 36 of Act 14 of 2010.]
(11)    The information furnished in terms of paragraph (c) of subsection (10) shall be of a general nature and shall not enable the details of the customer's affairs or account to be ascertained from the information so furnished.
(12)    A disclosure contemplated in paragraph (h) of subsection (10) shall be limited to the affairs or account of the customer suspected of such offence.
(13)    In civil proceedings referred to in paragraph (b) or (e) of subsection (10), the court may, if it appears that any record, book, register, correspondence or other document, information or material referred to in subsection (7) will be disclosed, ex mero motu or on application by any of the parties to the proceedings, conduct the proceedings in camera.
(14)    Subsection (7) shall apply to any record, book, register, correspondence or other document, information or material disclosed in terms of subsection (13).
(15)    For the purposes of this section, "financial institution" means a statutory body or other institution referred to in section 2(2), and includes a banking institution.
65    Publication of information
(1)    The Bank may, subject to subsection (2)-
(a)    publish in whole or in part, in such form and at such time as it may deem appropriate; or
(b)    for the purpose of tabling in the National Assembly, provide, any information or data furnished or collected under this Act.
(2)    The information or data referred to in subsection (1) shall not, unless with the written consent of a banking institution or controlling company or of a customer of a banking institution or controlling company, as the case may be, disclose particulars relating to the affairs of the banking institution or controlling company or of the customer of a banking institution or controlling company, as the case may be.
[Sec 65 amended by sec 41 of Act 14 of 2010.]
66    International supervisory co-operation
 
(1)    A person who, under the laws of a foreign state, country, colony or territory, exercises supervisory authority in respect of banking institutions or controlling companies conducting business in such foreign state, country, colony or territory, may, with the written approval of the Bank granted under subsection (3), examine the books, accounts or transactions of-
(a)    a banking institution or controlling company in Namibia which is a subsidiary; or
(b)    a representative office in Namibia,
of the banking institution or controlling company so conducting business in such foreign state, country, colony or territory, or cause such books, accounts or transactions to be examined.
(2)    The person referred to in subsection (1) shall in writing apply to the Bank for its approval as contemplated in that subsection.
(3)    The Bank may, on receipt of an application in terms of subsection (2)-
(a)    refuse the authority;
(b)    grant the authority; or
(c)    grant the authority subject to such conditions as the Bank may impose.
(4)    The Bank shall in writing inform the applicant of its decision under subsection (3) and of the conditions, if any, imposed under that subsection.
(5)    Section 53(1) shall, subject to the conditions contemplated in subsection (3),
mutatis mutandis apply to an examination by a person in terms of subsection (1).
(6)    If so imposed by the Bank under subsection (3), the person conducting an examination in terms of subsection (1) shall, within a period of 30 days after the completion of the examination, furnish the Bank with a report on the examination so conducted.
(7)    The Bank may enter into an agreement with a person referred to in subsection
(1)-
(a)    to regulate-
(i)    the establishment-
(aa) in the foreign state, country, colony or territory concerned of representative offices or of subsidiaries of banking institutions or controlling companies conducting business in Namibia; or
(bb) in Namibia of representative offices or of subsidiaries of foreign banking institutions or controlling companies conducting business in Namibia; and
(ii)    the supervisory powers, duties and functions of the Bank and of such person relating to the representative offices or of the subsidiaries established in Namibia and in the foreign state, country, colony or territory respectively, as contemplated in subparagraph (i);
(b)    to provide for-
(i)    the furnishing of information relating to representative offices or subsidiaries;
(ii)    the co-operation and exchange of information relating to examinations by the Bank or by such person; and
(iii)    the confidentiality relating to information referred to in subparagraphs (i) and (ii); and
(c)    any other matter which the parties may consider of importance relating to the conducting of business by banking institutions or controlling companies.
(8)    For the purposes of this section, the "supervisory authority" of a person referred to in subsection (1) means supervisory authority corresponding to the supervisory authority of the Bank in respect of banking institutions or controlling companies conducting business in Namibia.
[Sec 66 amended by sec 41 of Act 14 of 2010.]
67    Minors as depositors
Notwithstanding anything to the contrary in any law contained, a minor person of 16 years and older, and who has not been declared mentally ill under the Mental Health Act,
 
1973 (Act 18 of 1973), may open an account and be a depositor with a banking institution and may, without the assistance of his or her parent or guardian, as the case may be, execute all necessary documents, give all necessary receipts or acquittances and may cede, pledge, borrow against, and generally deal with, his or her deposit as he or she may consider appropriate, and shall enjoy all the privileges and be liable to all the obligations and conditions applicable to depositors.
68    Exemption of certain transactions from stamp duties
No stamp duty imposed by the Stamp Duties Act, 1993 (Act 15 of 1993) shall be payable in respect of the transfer of shares in a banking institution or any of its subsidiary companies, sold or disposed of in any manner by the banking institution to its controlling company, if such sale or disposal has been approved by the Bank.
69    Application of other laws to banking institutions
(1)    A company registered as a banking institution or as a controlling company shall continue to be a company in terms of the Companies Act, and that Act shall, subject to subsection (2), continue to apply to any such company to the extent to which that Act is not inconsistent with this Act.
(2)    Notwithstanding subsection (1)-
(a)    the provisions of the Companies Act relating to the conversion of public companies into other forms of companies shall not apply to a company referred to in that subsection; and
(b)    the Minister may, on the recommendation of the Bank, by notice in the Gazette
provide that a provision of the Companies Act specified in the notice-
(i)    shall not apply to a company authorised to conduct business as a banking institution, or to a controlling company of the banking institution;
(ii)    shall only apply to a company referred to in subparagraph (i) subject to the conditions and qualifications specified in the notice; or
(iii)    shall in respect of a company referred to in subparagraph (i), if such provision, in respect of a company, confers a power, duty or function on the Registrar of Companies, be deemed to confer on the Bank the power, duty or function specified in the notice.
(3)    The Minister shall table a copy of a notice under subsection (2) in the National Assembly within a period of 14 days after the publication thereof, if the National Assembly is then in ordinary session, or, if the National Assembly is not then in ordinary session, within a period of 14 days after the commencement of its next ensuing ordinary session.
(4)    If the National Assembly, by resolution passed during the session in which the notice referred to in subsection (3) was tabled, rejects the notice, the notice shall cease to be in force as from the date it was so rejected.
(5)    An authorisation granted under this Act shall not exempt a banking institution from the obligation, if any, to obtain a licence, a permit or an authorisation, or to comply with any requirement, as the case may be, under any other law to conduct banking business.
70    External bureaux
(1)    An external bureau established or utilised by one or more banking institutions for the purposes of accounting or payment by the banking institutions or their affiliate or associate shall, irrespective of the ownership of the external bureau, for the purpose of supervision by the Bank, be deemed to be a part of the accounting or payment system of the banking institutions which established, or which utilise or utilised the external bureau.
(2)    For the purposes of this section, "external bureau" means an office, an establishment or an agency in Namibia owned or retained by one or more banking
 
institutions, or their affiliates or associates, for the purpose of accounting, payment or other banking services.
71    Regulations and determinations
(1)    The Minister may, on the recommendation of the Bank, make regulations relating
to-
(a)    any matter which is required or permitted by this Act to be prescribed;
(b)    the requirements relating to the ownership, or the citizenship and place of residence of the members of a board of directors or officer, of a banking institution or a controlling company;
(c)    the manner in which the payment of any monies in terms of this Act is made to the Bank;
(cA) unfair terms in transactions or contracts between banking institutions and their customers or the general public; and
(d)    all other matters which the Minister considers necessary or expedient to prescribe in order to achieve the objects and purposes of this Act.
(2)    A regulation made under subsection (1) may in respect of any contravention thereof or failure to comply therewith prescribe a penalty not exceeding a fine of N$100 000 or imprisonment for a period not exceeding two and a half years or both such fine and such imprisonment.
(3)    The Bank may by notice in the Gazette make determinations not inconsistent with this Act relating to-
(a)    any matter which is required or permitted by this Act to be determined by the Bank; and
(b)    all other matters which the Bank considers necessary or expedient to determine for the conducting of business, as a banking institution or controlling company, in a prudent manner and consistent with the best standards and practices of corporate governance and sound financial management.
(4)    Any banking institution or controlling company, as the case may be, on contravention of, or failure to comply with, any determination made under paragraph (a) of subsection (3)-
(a)    as provided for in section 28(5)(b) or (c), 28A, 30(2), 41(5) or 43(6) in respect of a banking institution or controlling company; or
(b)    as provided for in section 21(7), 28(1), 30(1)(d), 31(1), 33(1), 34(1) or (2), 46(2)(b) or 47(2)(a) in respect of any banking institution or controlling company,
is liable to a fine determined by the Bank.
(5)    A banking institution or controlling company that contravenes or fails to comply with a determination made under paragraph (b) of subsection (3) is liable to a fine determined by the Bank and imposed in accordance with section 73A.
[Sec 71 substituted by sec 37 of Act 14 of 2010.]
72    Offences and penalties
(1)    Any person who-
(a)    contravenes or fails to comply with any provision of section 5, 19A(1), 46(3), 55A or 64(7); or
[Para (a) substituted by sec 38 of Act 14 of 2010.]
(b)    contravenes or fails to comply with any provision of section 6(4), 20(1)(b), (2)(b) or (4), 24(1), 26(7), 41(7), (8), (9), (10), (12) or (13), 43(5), 45(1), (2) or (3), 46(3), 56(4), (7) or (9), 58(1), 62(3), 64(1), (3), (7) or (9), or 66(2); or
(c)    contravenes or fails to comply with any order, direction or instruction made or issued under section 6(2)(g), 7(1), 26(1) or (13), 56(3) or 66(6) in respect of any person, including a banking institution or controlling company; or
 
(d)    when furnishing information to the Bank, to a banking institution or controlling company or to any other person in terms of section 6(4)(d), 10, 22, 49(1), (2), (3) or (4), wilfully and with the intent to deceive or to mislead, furnishes false, untrue or misleading information, or furnishes a forged document,
shall be guilty of an offence.
(2)    Any person convicted of an offence-
(a)    under paragraph (a) of subsection (1), shall be liable to a fine not exceeding N$1 000 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment; or
(b)    under paragraph (b), (c) or (d) of subsection (1), shall be liable to a fine not exceeding N$500 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
[Sec 72 amended by sec 41 of Act 14 of 2010.]
73    Offences by banking institutions, officers or agents
(1)    A banking institution or controlling company which contravenes or fails to comply
with-
(a)    any provision of section 8(2), 12(2), 12D and 12E, 14, 16(1), 19(1) or (4),
20(1)(a), (2)(a) or (5), 21(1), (4), (6) or (7), 27(2), 30(1)(a), (b) or (c), 31(2) or
(3), 32, 35, 36(1), 37(1), 39(1) or (2), 40(1) or (2), 41(1) or (2), 42(2) or (4),
43(1) or (2), 45(4), 46(1) or (2)(a), 47(2)(b) or (3), 48, 53(1), 54(1), 55(1),
61(1), 62(1) or 63; or
[Para (a) substituted by sec 39(a) of Act 14 of 2010.]
(b)    any notice, demand, instruction or request made or issued under any section referred to in paragraph (a); or
(c)    any order, direction or instruction made or issued under section 6(2)(f), 8(4)(b), 15(5), 39(4) or 52(9); or
(d)    any condition or requirement laid down under section 8(3) or (4), 36(2), 47(5), 49(5) or 50,
[Para (d) substituted by sec 39 of Act 14 of 2010.] shall be guilty of an offence.
(2)    A banking institution or controlling company convicted of an offence under subsection (1) shall be subject to the penalties prescribed by section 72(2)(a).
(3)    If a banking institution or controlling company is convicted of an offence under subsection (1), any person who at the time of the commission of the offence was an officer, a director or a substantial shareholder of the banking institution or controlling company, or was purporting to act in any such capacity, or was in any manner or to any extent responsible for the management of any of the affairs of the banking institution or controlling company, or was assisting in the management, as the case may be, shall, if it is proven that the offence was committed at the instructions of, or with the consent or connivance of, such person, be guilty of the same offence, and be subject to the same penalty, which the banking institution or controlling company is guilty of and is subject to.
(4)    If an officer, employee or agent of a banking institution or controlling company is convicted of an offence under section 72, any person who at the time of the commission of the offence was in a position of authority in relation to the officer, employee or agent, or who was a director or a substantial shareholder of the banking institution or controlling company, as the case may be, or was purporting to act in any such capacity, and if it is proven that the offence was committed by the officer, employee or agent in the course of his or her employment and at the instructions of, or with the consent or connivance of the person in authority, or the director or substantial shareholder, as the case may be, the person in authority or the director or shareholder shall be guilty of the same offence, and shall be subject to the same penalty, which the officer, employee or agent is guilty of or is subject to.
 
[Sec 73 amended by sec 41 of Act 14 of 2010.]
73A Imposition of administrative fines by Bank
(1)    If the Bank on reasonable grounds believes that a banking institution or controlling company contravenes or fails to comply with section, 26(16), 38(3), 49(6), 53(3), or 71(4), under which the Bank is required to determine a fine, the Bank may impose a fine not exceeding N$100 000 for every day during which contravention or
non-compliance with the section continues.
(2)    Before imposing a fine, the Bank must in writing-
(a)    inform the banking institution or controlling company of its intention to impose a fine;
(b)    specify the particulars of the alleged contravention or noncompliance;
(c)    provide reasons for the imposition of the intended fine;
(d)    specify the amount of the fine intended to be imposed; and
(e)    invite the banking institution or controlling company to make written representations within 14 days of receipt of the invitation and to show cause why the fine should not be imposed.
(3)    If the Bank after consideration of the representations made, decides to impose a fine, the Bank must by written notice inform the banking institution or controlling company that it must, within 30 days of receipt of the notice, pay the fine.
(4)    A banking institution or controlling company may appeal to the Appeal Board against the decision made or fine imposed by the Bank by lodging a notice of appeal with the Minister within 14 days of receipt of the notice referred to in subsection (3).
(5)    After consideration of an appeal, the Appeal Board may confirm, amend or set aside the decision made or fine imposed by the Bank.
(6)    If a banking institution or controlling company is dissatisfied with the decision of the Appeal Board, it may appeal to the High Court within 14 days after the decision was made.
(7)    A contravention of or failure to comply with any section referred to in subsection
(1)    is not a criminal offence.
[Sec 73A inserted by sec 40 of Act 14 of 2010.]
73B Appeal Board
(1)    Upon receipt of the notice of appeal by a banking institution or controlling company against the decision of the Bank made under section 73A, the Minister must constitute an Appeal Board to decide the appeal.
(2)    The Appeal Board consists of a judge of the High Court, who is the chairperson, designated by the Judge President and other two members appointed by the Minister.
(3)    The qualifications, terms and conditions and other requirements for appointment as members of the Appeal Board are as prescribed.
[Sec 73B inserted by sec 40 of Act 14 of 2010.]
74    Repeal of laws and savings
(1)    Subject to subsection (2), the laws specified in the Schedule are hereby repealed to the extent set out in the third column of the Schedule.
(2)    Any regulation made or in force, or any banking institution registered as such for the purpose of conducting banking business, under any provision of any law repealed by subsection (1) shall be deemed to have been made or to be in force, or to have been authorised to conduct banking business, under the corresponding provision of this Act.
75    Short title and commencement
This Act shall be called the Banking Institutions Act, 1998, and shall come into operation on a date to be determined by the Minister by notice in the Gazette.
 
Schedule LAWS REPEALED
Section 74

No. and year of law    Short title    Extent of repeal
Act 23 of 1965    Banks Act, 1965    The whole
Act 80 of 1969    Financial Institutions Amendment Act, 1969    section 2
Act 23 of 1970    Financial Institutions Amendment Act, 1970    section 6
Act 91 of 1972    Financial Institutions Amendment Act, 1972    sections 12(a)(ii), 12(a)(iii) and 13
Act 67 of 1973    Financial Institutions Amendment Act, 1973    section 4
Act 101 of 1976    Financial Institutions Amendment Act, 1976    sections 37(a), (b), (d) and (f),
40, 42, 43, 47, 48, 49, 50, 51,
52 and 53
Act 94 of 1977    Financial Institutions Amendment Act, 1977    sections 20 and 21
Act 80 of 1978    Financial Institutions Amendment Act, 1978    sections 18(b), (c) and (d), 19, 20(1)(c) and 21(c)
Act 103 of 1979    Financial Institutions Amendment Act, 1979    section 27(c)
Act 99 of 1980    Financial Institutions Amendment Act, 1980    section 45
Act 36 of 1981    Financial Institutions Amendment Act, 1981    sections 25(a) and (b)
Act 38 of 1984    Inspection of Financial Institutions Act, 1984    section 11(1)
Act 46 of 1984    Corporation for Public Deposits Act, 1984    section 20
Act 86 of 1984    Financial Institutions Amendment Act, 1984    sections 24, 25, 29, 30, 31(a),
(b) and (c), 32(c) and 33
Act 106 of 1985    Financial Institutions Amendment Act, 1985    sections 10(a), (b), (c), (j), (k),
(o) and (p), 12(b), (c), (d), (e)
and (g), 14(a), 15, 16, 17(a)
and (c), 18(a), (c) and (d),
19(a), (b) and (c), 21(b) and
(c), 22(b) and (c), 24, 25(a), 26, 29, 30, 31, 32, 33, 34 and
35
Act 6 of 1987    Financial Institutions Amendment Act, 1987    sections 3, 4, 5, 6 and 7
Act 96 of 1988    South African Reserve Bank, Banking Institutions, Mutual Building Societies and Building Societies Amendment Act, 1988    sections 2(a), 4(b) and (c), 6(a), 7(a), 8, 9, 10(a) and (b),
11, 12(a), (b) and (c), 13, 14,
15 and 16
Act 13 of 1989    Banking Institutions, Mutual Building Societies and Building Societies Amendment Act, 1989    sections 1, 3, 4 and 5
Act 22 of 1991    Banking Institutions Amendment Act, 1991    the whole
Act 1 of 1996    Married Persons Equality Act, 1996    section 26

Financial Intelligence Act

 

GOVERNMENT GAZETTE
OF THE
REPUBLIC OF NAMIBIA
N$27.20    WINDHOEK - 14 December 2012    No. 5096


CONTENTS
Page

GOVERNMENT NOTICE

No. 299    Promulgation of Financial Intelligence Act, 2012 (Act No. 13 of 2012), of the
Parliament    1
Government Notice
OFFICE OF THE PRIME MINISTER
No. 299    2012

PROMULGATION OF ACT OF PARLIAMENT

The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.

No. 13 of 2012: Financial Intelligence Act, 2012.

 

ACT
To     to  provide  for  the  establishment  of  the  Financial  Intelligence  Centre  as the national centre responsible for collecting,  requesting,  receiving and analysing suspicious transaction reports and suspicious activity reports which may relate to possible money laundering or the financing  of terrorism; to provide for the objects, powers and functions of the Centre; to provide for the combating of money laundering and financing of terrorism activities; to provide for the establishment of the Anti-Money Laundering and Combating of the Financing of Terrorism Council, and for its functions; to provide for the registration of accountable and reporting institutions; to provide for the powers and functions of the supervisory bodies; to empower the Minister to appoint an appeal board to hear and decide appeals against decisions of the Centre or supervisory bodies; and to provide for incidental matters.

(Signed by the President on 24 December 2012)
ARRANGEMENT OF SECTIONS PART 1
PRELIMINARY PROVISIONS

Section

1.    Definitions
2.    Application of Act to accountable and reporting institutions
3.    Application of Act to supervisory and regulatory bodies
4.    Application of Act to Registrar of Companies and Close Corporations
5.    Application of Act to Master of High Court
6.    Application of Act when in conflict with other laws

PART 2
FINANCIAL INTELLIGENCE CENTRE AND ITS ADMINISTRATION AND STAFF

7.    Establishment of Financial Intelligence Centre
8.    Objects of Centre
9.    Powers and functions of Centre
10.    Administrative powers of Centre
11.    Appointment and removal of Director
12.    Responsibilities of Director
13.    Staff of Centre
14.    Funds of Centre
15.    Audit
16.    Delegation

PART 3
ANTI-MONEY LAUNDERING AND COMBATING FINANCING OF TERRORISM COUNCIL

17.    Establishment of Council
18.    Constitution, conditions of office and vacation of office
 

19.    Powers and functions of Council
20.    Meetings and procedures

PART 4
MONEY LAUNDERING AND FINANCING OF TERRORISM CONTROL MEASURES, DUTY TO IDENTIFY CLIENTS, CONDUCT ONGOING AND ENHANCED DUE DILIGENCE, KEEP RECORDS AND REPORT SUSPICIOUS TRANSACTIONS AND SUSPICIOUS ACTIVITIES

21.    Identification when business relationship is established or single transaction is concluded
22.    Identification when transaction is concluded in the course of business relationship
23.    Risk clients
24.    On-going and enhanced due diligence
25.    Identification and account-opening for cross-border correspondent banking relationships
26.    Records to be kept of business relationships and transactions
27.    Period for which records must be kept
28.    Centralisation of records
29.    Records may be kept by third parties
30.    Admissibility of records
31.    Centre has access to records
32.    Cash transactions above prescribed limits
33.    Suspicious transactions and suspicious activities
34.    Electronic transfers of money to, from and within Namibia
35.    Obligations of and reporting by supervisory bodies
36.    Declaration of cross border movement of cash and bearer negotiable instruments amounting to or exceeding an amount determined by the Centre
37.    Powers of officers of Customs and Excise and Post Office in respect of cash and bearer negotiable instruments being conveyed into or out of Namibia
38.    Making declarations on cash and bearer negotiable instruments available to the Centre
39.    Obligations by accountable and reporting institutions
40.    Reporting procedures
41.    Continuation of suspicious transactions
42.    Intervention by Centre
43.    Monitoring orders
44.    Reporting duty not affected by confidentiality rules
45.    Protection of persons making reports
46.    Tipping off
47.    Admissibility as evidence of reports made to Centre
48.    Access to information held by Centre
49.    Protection of confidential information
50.    Protection of informers and information

PART 5
COMPLIANCE AND ENFORCEMENT OF ACT

51.    Exhausting of other measures before penalties
52.    Appointment of inspectors
53.    Inspections
54.    Directives
 

55.    Enforceable undertakings and enforcement
56.    Administrative sanctions
57.    Appeal board
58.    Appeals
59.    Referral of suspected offences to competent authorities or Prosecutor-General
60.    Application to court
61.    Powers of authorised officers
62.    Release of property, record, report or document seized

PART 6 OFFENCES AND PENALTIES

63.    Offences in general
64.    Jurisdiction of magistrates courts in respect of offences
65.    Offences committed by person acting in official capacity

PART 7 MISCELLANEOUS

66.    Act not to limit powers of investigation authorities
67.    Regulations
68.    Indemnity
69.    Service of notices
70.    Exemptions
71.    Documents tracking
72.    Repeal of laws
73.    Transitional provisions and savings
74.    Short title and commencement SCHEDULE 1 Accountable Institutions SCHEDULE 2 Supervisory Bodies SCHEDULE 3 Reporting Institutions SCHEDULE 4 Regulatory Bodies

BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:

PART 1 PRELIMINARY PROVISIONS

Definitions

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

“accountable institution” means a person or institution referred to in Schedule 1, including branches, associates or subsidiaries outside of that person or institution and a person employed or contracted by such person or institution;

“authorised officer” means any member of -

(a)    the Namibian Police Force authorised by the Inspector-General of the Namibian Police Force;

(b)    the office of the Prosecutor-General authorised by the Prosecutor-General; or
 

(c)    the Intelligence Service authorised by the Director-General of the Namibian Central Intelligence Service;

(d)    the Centre authorised by the Director;

(e)    the Anti-Corruption Commission authorised by the Director of the Anti- Corruption Commission;

(f)    a supervisory body or any person authorised by the Head of the supervisory body;

(g)    an investigating authority that may, in terms of any law, investigate unlawful activities who may act under this Act;

“Bank” means the Bank of Namibia established by the Bank of Namibia Act, 1997 (Act No. 15 of 1997);

“bearer negotiable instrument” for the purposes of this Act, means any instrument that may on demand by the bearer thereof be converted to the currency of Namibia or that of another country and includes, amongst others, cheques, promissory notes and money orders;

“beneficial owner” means -

(a)    a natural person who owns or effectively controls a client, including the natural person on whose behalf a transaction is conducted; or

(b)    a natural person who exercises effective control over a legal person or trust, and a natural person is deemed to own or effectively control a client when the person -
(i)    owns or controls, directly or indirectly, including through trusts or bearer share holdings for any legal person, 20% or more of the shares or voting rights of the entity;

(ii)    together with a connected person owns or controls, directly or indirectly, including through trusts or bearer share holdings for any legal person, 20% or more of the shares or voting rights of the entity;

(iii)    despite a less than 20% shareholding or voting rights, receives a large percentage of the person’s declared dividends; or

(iv)    otherwise exercises control over the management of the person in his or her capacity as executive officer, non-executive director, independent non-executive director, director, manager or partner.

“business relationship” means an arrangement between a client and an accountable or reporting institution for the purpose of concluding transactions on a regular basis;

“cash” means -

(a)    coin and paper money of Namibia or of another country which coin or paper money is designated as legal tender and which circulates as, and is customarily used and accepted as, a medium of exchange in the country of issue;
 

(b)    travelers’ cheques; or

(c)    cheques, but only in respect of payments made by a person who carries on the business of a casino, gambling institution or totalisator betting service; or

(d)    payment instrument, but only in respect of stored value;

“Centre” means the Financial Intelligence Centre established by section 7;

“client” means a person who has entered into a business relationship or a single transaction with an accountable or reporting institution, and the word “customer” has a corresponding meaning;

“competent authority” means any supervisory, the Namibian Police Force, the Anti- Corruption Commission, the Namibia Central Intelligence Service, the Prosecutor- General, the Centre and any other authority that may, in terms of any law, investigate unlawful activities;

“correspondent banking” means the provision of banking, payment and other services by one bank “the correspondent bank” to another bank “the respondent bank” to enable the latter to provide services and products to its clients;

“Council” means the Anti-Money Laundering and Combating the Financing of Terrorism Council established by section 17;

“customer due diligence” means a process which involves establishing the identity of  a client, the identity of the client’s beneficial owners in respect of legal persons and monitoring all transactions of the client against the client’s profile;

“Customs and Excise” means a division in the Ministry responsible for finance that is entrusted with customs and excise responsibilities as envisaged by the Customs and Excise Act, 1989 (Act No. 20 of 1998);

“determination” means a determination made under this Act and published by notice in the Gazette;

“electronic transfer” means any transaction carried out on behalf of an originator person, both natural and legal, through an accountable or reporting institution in Namibia or an accountable or reporting institution in a foreign country by way of electronic means with a view to making an amount of money available to a beneficiary person at the same or another institution (the originator and the beneficiary may be the same person), and excludes debit orders and stop orders for payment of instalments and premiums;

“establish identity” means a two tier process consisting of ascertainment or collecting of certain identification information, and verification of some of the information against reliable documentation or information;

“financing of terrorism” has the meaning ascribed to it by an Act of the Parliament    of the Republic of Namibia which criminalizes the conduct of terrorist financing and includes acts which is aimed at directly or indirectly providing or collecting funds with the intention that such funds should be used, or with the knowledge that such funds  are to be used, in full or in part, to carry out any act of terrorism as defined in the
 

Organization for African Unity (OAU) Convention on the Prevention and Combating of Terrorism of 1999, irrespective of whether or not the funds are actually used for such purpose or to carry out such acts;

“forfeiture” means the official transfer of property to the State;

“Fund” means the Criminal Assets Recovery Fund established by section 74 of the Prevention of Organised Crime Act;

“Government” means the Government of the Republic of Namibia;

“Governor” means the Governor as referred to in section 1 of the Bank of Namibia Act, 1997(Act No. 15 of 1997);

“inspector” means a person appointed in terms of section 53 to conduct inspections in terms of this Act;

“Intelligence Service” means the Namibia Central Intelligence Service established under the Namibia Central Intelligence Service Act, 1997 (Act No. 10 of 1997);

“investigating authority” means an authority that in terms of legislation may investigate unlawful activities;

“Minister” means the Minister responsible for finance; “money laundering” or “money laundering activity” means -
(a)    the act of a person who -

(i)    engages, directly or indirectly, in a transaction that involves proceeds of any unlawful activity;

(ii)    acquires, possesses or uses or removes from or brings into Namibia proceeds of any unlawful activity; or

(iii)    conceals, disguises or impedes the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity;

where -

(aa) as may be inferred from objective factual circumstances, the person knows or has reason to believe, that the property is proceeds from any unlawful activity; or

(bb) in respect of the conduct of a person, the person without reasonable excuse fails to take reasonable steps to ascertain whether or not the property is proceeds from any unlawful activity; and

(b)    any activity which constitutes an offence as defined in section 4, 5 or 6 of the Prevention of Organised Crime Act;
 

“payment instrument” has the meaning attributed to that term in section 1 of the Payment System Management Act, 2003 (Act No. 18 of 2003);

“person” means a natural or legal person; “prescribed” means prescribed by regulation;
“Prevention of Organised Crime Act” means the Prevention of Organised Crime Act, 2004 (Act No. 29 of 2004);

“proceeds of unlawful activities” has the meaning attributed to that term in section 1 of the Prevention of Organised Crime Act;

“property” has the meaning attributed to that term in section 1 of the Prevention of Organised Crime Act;

“prospective client” means a person seeking to conclude a business relationship or a single transaction with an Accountable institution;

“records” means any material on which information is recorded or marked and which is capable of being read or understood by a person, or by an electronic system or other device;

“Registrar of Companies and Close Corporations” means the Registrar of Companies as defined in the Companies Act, 2004 (Act No. 28 of 2004) and the Registrar of Close Corporations as defined in the Close Corporation Act, 1988 (Act No. 26 of 1988);

“regulation” means a regulation made under section 68;

“regulatory body” means a functionary or institution set out in Schedule 4; “reporting institutions” means a person or institution set out in Schedule 3;
“risk clients” means any person, natural or legal whose activities pose a risk for money laundering or financing of terrorism activities;

“risk management systems” means policies, procedures and controls that enables an accountable institution to establish the risk indicators used to characterise clients, products and services to different categories of risk (low, medium or high risk) with the aim of applying proportionate mitigating measures in relation to the potential risk of money laundering or terrorist financing in each category of risk established;

“senior management” with respect to a legal person or trust, includes a director, controlling officer, partner or any person who is concerned with the management of its affairs;

“single transaction” means a transaction other than a transaction concluded in the course of a business relationship;

“supervisory body” means a functionary or institution set out in Schedule 2;

“transaction” means a transaction concluded between a client and an accountable or reporting institution in accordance with the type of business carried on by that institution, and includes attempted transactions;
 

“this Act”, includes regulations and determinations; and

“unlawful activity” has the meaning assigned to it in section 1 of the Prevention of Organised Crime Act.

Application of Act to accountable and reporting institutions

2.    (1)    This Act applies to all accountable and reporting institutions    set out in Schedule 1 and Schedule 3, respectively.

(2)    The Minister, by notice in the Gazette, may amend the list of accountable or reporting institutions in Schedule 1 or Schedule 3 to -

(a)    add to the list any institution or category of institutions if the Minister reasonably believes that institution or category of institutions is used, and is likely to be used in future, for money laundering or financing of terrorism purposes;

(b)    delete any institution or category of institutions from the list if the Minister reasonably believes that institution or category of institutions is not used, and is not likely to be used in future, for money laundering or financing of terrorism; or

(c)    make technical changes to the list.

(3)    Before the Minister amends Schedule 1 or Schedule 3 under subsection (2)(a) or (b), the Minister must consult the Council and the Centre, and -

(a)    if only an individual institution will be affected by the proposed amendment, give the institution at least 60 days written notice to submit written representations to the Minister; or

(b)    if a category of institutions will be affected by the proposed amendment, by notice in the Gazette give institutions belonging to that category at least 60 days written notice to submit written representations to the Minister.

Application of Act to supervisory and regulatory bodies

3.    (1)     This Act applies to all supervisory bodies set out in Schedule   2, but applies only to the regulatory bodies set out in Schedule 4 to a limited extent, and does not impose the same obligations to the regulatory bodies as it impose to the supervisory bodies.

(2)    The Minister may, by notice in the Gazette, amend the list of supervisory or regulatory bodies in Schedule 2 or Schedule 4, respectively, to -

(a)    add to the list any supervisory or regulatory body which in terms of legislation performs supervisory or regulatory functions in relation to any category of accountable institutions;

(b)    delete any supervisory or regulatory body or category of supervisory or regulatory body from the list if the Minister reasonably believes there is need to do so; or
 

(c)    make technical changes to the list.

(3)    Before the Minister amends Schedule 2 or Schedule 4 under subsection (2)(a) or (b), the Minister must consult the Council and the Centre, and give the Council, Centre and the supervisory or regulatory body concerned, at least 60 days written notice to submit written representations to the Minister.

Application of Act to Registrar of Companies and Close Corporations

4    (1)    The Registrar of Companies and Close Corporations must, for the purposes of this Act, in addition to information required for companies and close corporations under any other law -

(a)    annually collect and keep accurate and up-to-date prescribed information in respect of members, directors, shareholders and beneficial owners of companies and close corporations;

(b)    forward to the Registrar of Deeds all changes to members, directors, shareholders or beneficial owners information of companies and close corporations which own immovable properties; and

(c)    avail all information referred to in paragraphs (a) and (b) of companies and close corporations to competent authorities upon request.

(2)    All companies and close corporations must upon registration, and annually thereafter, submit to the Registrar of Companies and Close Corporations up- to-date information referred to in subsection (1)(a) in respect of each member, director, shareholder and beneficial owner of such companies and close corporations.

(3)    The Registrar of Companies and Close Corporations may not register or renew any registration of a company or close corporation without the information as referred to in subsection (1)(a) being provided.

(4)    If a company or close corporation was registered with the Registrar of Companies and Close Corporations before this section came into effect, the Registrar of Companies and Close Corporations must, within a period determined by the Centre, take reasonable steps to obtain the information referred to in subsection(1)(a).

(5)    All companies and close corporations registered with the Registrar of Companies and Close Corporations before this section came into effect must annually submit to the Registrar of Companies and Close Corporations up-to-date information referred to in subsection (1)(a) in respect of each member, director, shareholder and beneficial owner of such companies and close corporations.

(6)    If the Registrar of Companies and Close Corporations is unable to obtain, the information referred to in subsection (1)(a), within the period referred to in subsection (4), the Registrar may de-register the relevant company or close corporation.

(7)    If the company or close corporation refuses or fails to provide the information referred to in subsection (1)(a), within the period referred to in subsection (4), the company or close corporation commits an offence and is liable to a fine not exceeding N$10 million, or where the commission of the offence is attributable to a
 

representative of the company or close corporation, to such fine or imprisonment not exceeding a period of 10 years, or to both such fine and such imprisonment, and in addition the Registrar must de-register the relevant company or close corporation.

Application of Act to Master of High Court

5.    (1)    For the purposes of this Act, the Master of the High Court must -

(a)    register all testamentary and inter vivos trusts in the prescribed manner and form;

(b)    collect and keep up-to-date prescribed information in respect of the founder, each trustee, each income beneficiary and each beneficial owner of all registered testamentary and inter vivos trusts; and

(c)    avail founder, trustee, trust beneficiary and trust beneficial ownership information of all registered testamentary and inter vivos trusts to competent authorities upon request.

(2)    The Master of the High Court may not register any trust without the information referred to in subsection (1)(b) being provided.

(3)    After having registered in terms of subsection (1)(a), a trust must provide the Master of the High Court with all the information referred to in subsection (1)(b).

(4)    If a trust was registered with the Master of the High Court before this section came into effect, the Master of the High Court must, within a period determined by the Centre, take reasonable steps to obtain the information referred to in subsection (1)(b).

(5)    If a trust refuses or fails to register in terms of subsection (1)(a) or to provide the information referred to in subsection (1)(b), within the period determined under subsection (4), the trust commits an offence and is liable to a fine not exceeding N$10 million, or where the commission of the offence is attributable to a representative of the trust, to such fine or imprisonment not exceeding a period of 10 years, or to both such fine and such imprisonment.

(6)    An Accountable or reporting institution which has a business relationship with any trust is required to inform the Master of the High Court and the Centre if such a trust is not registered with the Master.

(7)    The Master of the High Court is entitled to request from a relevant accountable or reporting institution and the institution must provide the Master with information relating to trust banking accounts for purposes of monitoring or investigating the transaction activities or operations of any trust.

(8)    An accountable or reporting  institution  which  contravenes  or fails to comply with subsection (6) or (7) commits an offence and is liable to a fine not exceeding N$10 million, or where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment.
 

Application of Act when in conflict with other laws

6.    If any conflict relating to the matters dealt with in this Act arises between this Act and any other law, a provision of this Act prevails.

PART 2

ESTABLISHMENT OF FINANCIAL INTELLIGENCE CENTRE AND APPOINTMENT OF DIRECTOR AND STAFF OF CENTRE

Establishment of Financial Intelligence Centre

7.    (1) There is  established a national centre to be known as the Financial Intelligence Centre, that is responsible for administering this Act, subject to any general or specific policy directives which the Minister may issue.

(2)    The Bank must provide administrative services to the Centre.

Objects of Centre

8.    The principal objects of the Centre in terms of this Act are to combat money laundering and the financing of terrorism activities in collaboration with the other law enforcement agencies.

Powers and functions of Centre

9.    (1)    In furthering its objects the powers and functions of the Centre
are -

(a)    to collect, request, receive, process, analyze and assess all reports, requests for information and information received from persons, accountable institutions, reporting institutions, government offices, ministries, or agencies or any other competent authorities and any foreign agencies, in terms of this Act or in terms of any law;

(b)    to initiate an analysis of its own motion based on information in its possession or information received from another source;

(c)    to disseminate information to which it has access to competent authorities and foreign agencies with powers and duties similar to that of the Centre; and

(d)    to make recommendations arising out of any information received;

(e)    to collect statistics and records of -

(i)    suspicious transactions reports, suspicious activity reports  and Requests for Information received and intelligence disseminated;

(ii)    money laundering and terrorist financing investigations, prosecutions and convictions;
 

(iii)    property frozen, seized and confiscated under the Prevention of Organised Crime Act, or any other law applicable to the Republic of Namibia;

(iv)    mutual legal assistance or other international requests for co- operation;

(v)    on-site examinations conducted by the Centre or supervisory bodies and any enforcement actions taken; and

(vi)    formal request for assistance made or received by supervisory or regulatory bodies relating to money laundering and financing of terrorism and outcomes of such requests;

(f)    to coordinate the activities of the various persons, bodies or institutions involved in the combating of money laundering and the financing of terrorism;

(g)    to inform, advise and cooperate with competent authorities and exchange information, available to the Centre, with these authorities for the purpose of administration, intelligence collection, law enforcement and prosecution;

(h)    to supervise, monitor and enforce compliance with this Act, or any regulations, directives, determinations, notices or circulars issued in terms of the Act, by accountable and reporting institutions and give guidance to Accountable and reporting institutions to combat money laundering or financing of terrorism activities, and

(i)    to facilitate effective supervision and enforcement of the Act by supervisory bodies.

(2)    In order to attain its objects and perform its functions the Centre may -

(a)    call for and obtain further information from persons or bodies that are required to supply or provide information to it in terms of this Act or any law;

(b)    request for information and statistics, from any government office, ministry or agency, law enforcement agency, competent authority, regulatory body and supervisory body, whether listed in Schedule 2 and Schedule 4 or not, for purposes of this Act;

(c)    direct any accountable or reporting institution, or supervisory body to take such steps as may be appropriate in relation to any information or report received by the Centre, to enforce compliance with this Act or to facilitate any investigation anticipated by the Centre;

(d)    issue determinations to any supervisory body in terms of which the supervisory body must enforce compliance by an accountable or reporting institution regulated by such supervisory body, with the provisions of this Act;
 

(e)    after consultation with supervisory and regulatory bodies, issue guidelines, directives, determinations, circulars or notices to accountable and reporting institutions to ensure compliance with this Act;

(f)    conduct research into trends and developments in the area of money laundering and financing of terrorism and improved ways of detecting, preventing and deterring money laundering and financing of terrorism;

(g)    exercise any other power or to do any other thing not inconsistent with this Act, which is necessary or expedient to ensure the achievement of the objects of this Act; and

(h)    exercise any power or perform any functions conferred to or imposed on it by any law.

(3)    The Centre may from time to time consult with the Council on issues of mutual interest with regard to the powers and functions of the Centre under this Act.

(4)    Subject to section 7, a person may not unduly influence or interfere with the Centre in exercising its powers and performing its functions as authorised in terms of this Act.

(5)    A person who contravenes subsection (4) commits an offence and      is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years or to both such fine and imprisonment.

Administrative powers of Centre

10.    The Centre, with the concurrence of the Governor, may do all that is necessary or expedient to perform its functions effectively, which includes the power to
-

(a)    determine its own staff establishment with the approval of the Minister;

(b)    appoint employees and receive seconded personnel to posts on its staff establishment in accordance with staff policies and procedure of the Bank as far as reasonably possible;

(c)    obtain the services of any person by agreement, including any state department, functionary or institution, to perform any specific act or function;

(d)    engage in any lawful activity, whether alone or together with any other organisation in Namibia or elsewhere, aimed at promoting its objects.

Appointment and removal of Director

11.    (1)    The Minister, after consultation with the Council, must appoint a suitably qualified, fit and proper person as the Director of the Centre.

(2)    A person appointed as Director holds office -
 

(a)    for a term of five years, which term is renewable; and

(b)    on terms and conditions set out in a written employment contract.

(3)    A person may not be appointed as Director, unless -

(a)    information with respect to that person has been gathered in a security screening investigation by the National Intelligence Agency established by the Namibia Central Intelligence Service Act, 1997 (Act No. 10 of 1997); and

(b)    the Minister, after evaluating the gathered information, is satisfied that the person may be so appointed without the possibility that such person may pose a security risk or that such person may act in any manner prejudicial to the objects of this Act or the functions of the Centre.

(4)    The Director may at any time determined by the Minister, upon recommendation by the Council, be subjected to a further security screening investigation as contemplated in subsection (3)(a).

(5)    The Minister, upon recommendation by the Council, may remove the Director from office on the grounds of misconduct, incapacity or incompetence, in line with fair labour practices and the prevailing labour legislation.

(6)    The Minister, upon recommendation by the Council, may suspend the Director from office, pending -

(a)    the determination of any disciplinary enquiry as to whether grounds of misconduct, incapacity or incompetence exist; or

(b)    the outcome of a security screening investigation referred to in subsections (3) and (4).

Responsibilities of Director

12    (1)    The Director is responsible for -

(a)    the performance by the Centre of its functions;

(b)    implementation and administration of applicable provisions of this Act;

(c)    reporting administratively to the Governor;

(d)    reporting functionally to the Council;

(e)    the management of the staff, resources and administration of the Centre;

(f)    dissemination of intelligence involving suspected proceeds of crime, money laundering, terrorist property or financing of terrorism, to competent authorities and foreign agencies with powers and duties similar to that of the Centre;
 

(g)    providing relevant advice to the Council;

(h)    providing advice and guidance to assist accountable institutions, reporting institutions and supervisory bodies to comply with their obligations under this Act; and

(i)    advise the Council on aligning the National Anti-Money Laundering and Combating the Financing of Terrorism framework with international Anti-Money Laundering and Combating the Financing of Terrorism standards and best practices.

Staff of Centre

13.    (1)      For the purposes of assisting the Director in the performance  of the functions of the Centre, the Director, with the concurrence of the Governor, may appoint persons as staff members of the Centre.

(2)    The Governor may –

(a)    assign staff members of the Bank to the Centre;

(b)    request an office, ministry, or agency as defined in the Public Service Act, 1995 (Act No. 13 of 1995), to second a staff member of the Public Service to the Centre for the purposes of assisting the Centre in carrying out its functions in terms of this Act.

(3)    Staff members referred to in subsections (1) and (2) perform their duties under the supervision, control and directions of the Director.

(4)    A person may not be appointed or seconded to perform any of the functions of the Centre unless -

(a)    information with respect to that person has been gathered in a security screening investigation by the National Intelligence Agency established by the Namibia Central Intelligence Service Act, 1997 (Act No. 10 of 1997); and

(b)    the Director, with the concurrence of the Governor, after evaluating the gathered information, is satisfied that the person may be so appointed or seconded without the possibility that the person poses a security risk or that the person may act in any way prejudicial to the objects or functions of the Centre and the objects of this Act.

(5)    Any person referred to in subsection (4) may at any time determined by the Director, with the concurrence of the Governor, be subjected to a further security screening investigation as contemplated in subsection (4)(a).

Funds of Centre

14.    (1) For the purpose of exercising its powers and performing its functions conferred and imposed by or under this Act the Centre must utilize funds available from -
 

(a)    money appropriated annually by Parliament for the purposes of the Centre;

(b)    any Government grants made to the Centre;

(c)    money made available to the Centre from the Fund; and

(d)    any other money legally acquired by the Centre.

(2)    The Centre, with the approval of the Minister, may accept financial donations or contributions from any other source.

(3)    For the purpose of  subsection  (1)(a),  the  Director  must  prepare  the annual budget of the Centre for consideration by the Council and its subsequent recommendation to the Minister for approval.

Audit

15.    All the financial matters of the Centre relating to the Centre’s exercising of its powers and performance of its functions in terms of this Act must be kept separate from that of the Bank and must be audited separately.

Delegation

16.    (1) The Director may delegate, in writing, any of the powers  entrusted to the Centre in terms of this Act to any employee of the Centre, or assign an employee of the Centre to perform any of the functions imposed on the Centre in terms of this Act.

(2)    A delegation or instruction in terms of subsection (1) -

(a)    is subject to the limitations or conditions that the Director may impose; and

(b)    does not divest the Director of the responsibility concerning the exercise of the delegated power or the performance of the assigned function.

(3)    The Director may confirm, vary or revoke any decision taken by an employee in consequence of a delegation or instruction in terms of subsection (1), provided that no such variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision.

PART 3

ANTI-MONEY LAUNDERING AND COMBATING FINANCING OF TERRORISM COUNCIL

Establishment

17.    There is established an Anti-Money Laundering and Combating the Financing of Terrorism Council.
 

Constitution, conditions of office and vacation of office

18.    (1)    The Minister must appoint members of the Council which consists of -

(a)    the Governor or his or her delegate who is the chairperson;

(b)    the Permanent Secretary of the Ministry responsible for finance;

(c)    the Inspector-General of the Namibian Police Force;

(d)    the Permanent Secretary of the Ministry responsible for trade;

(e)    the Permanent Secretary of the Ministry responsible for justice;

(f)    the Permanent Secretary of the Ministry responsible for safety and security;

(g)    the Director of the Namibian Central Intelligence Service;

(h)    the Chief Executive Officer of the Namibia Financial Institutions Supervisory Authority;

(i)    the Director of the Anti-Corruption Commission;

(j)    the President of the Bankers Association;

(k)    one person representing associations representing a category of accountable or reporting institutions requested by the Minister to nominate representatives; and

(l)    one person representing supervisory bodies requested by the Minister to nominate representatives.

(2)    The Council may invite persons who may have special knowledge or skills in any relevant field or discipline to attend its meetings and advise the Council but such persons have no voting right.

(3)    The members of the Council must elect a deputy chairperson at the first meeting of the Council.

(4)    Any vacancy in the Council must, subject to subsection (1), be filled by the appointment of a new member.

(5)    A member of the Council who is in the employment of the State may be paid such allowances for traveling and subsistence expenses incurred by him or her in the performance of his or her functions in terms of this Act, out of the funds of the Centre, as the Minister may determine.

(6)    A member of the Council, who is not in the employment of the State, may be paid such remuneration, including allowances, for traveling and subsistence expenses incurred by him or her in the performance of his or her functions in terms of this Act, out of the funds of the Centre, as the Minister determines.
 

(7)    The office of a member of the Council becomes vacant if that member -

(a)    by a written notice addressed to the Minister, resigns from office;

(b)    is removed from office by the Minister for inability to perform his or her duties due to ill health; or

(c)    is for any other reasonable cause removed from office by the Minister.

(8)    Before removing a member from office in terms of subsection (7)(c), the Minister must -

(a)    in writing, notify the member concerned of the grounds on which the member is to be removed from membership of the Council;

(b)    give that member an opportunity to make an oral or a written representation on the matter to the Minister or to any other person designated by the Minister for that purpose; and

(c)    consider any representation made.

Functions

19.    (1)    The functions of the Council are to -

(a)    on the Minister’s request or at its own initiative, advise the Minister on -

(i)    policies and measures to combat money laundering and financing of terrorism activities; and

(ii)    the exercise by the Minister of the powers entrusted to the Minister under this Act;

(b)    consult, when necessary, with the Centre, associations representing categories of accountable or reporting institutions, offices, ministries or government agencies, supervisory bodies, regulators and any other person, institution, body or association, as the Council may determine, before it takes a policy decision which may impact on such institutions;

(c)    advise the Centre concerning the performance of its functions;

(d)    consider and recommend the proposed budget of the Centre to the Minister for approval;

(e)    consider and recommend the human and other resources required by the Centre to effectively carry out its functions in terms of this Act to the Minister for approval; and

(f)    recommend to the Minister the appointment or removal of the Director.

(2)    The Centre must provide administrative support for the Council to function effectively.
 

Meetings and procedures

20.    (1) The chairperson of the Council, or in his or her absence, the  deputy Chairperson, presides at meetings of the Council, or if both the chairperson  and the deputy chairperson are absent from the meeting, or are unable to preside at the meeting, the members present must elect one member from among their number to preside at the meeting.

(2)    The Council -

(a)    must, at a time and place determined by the chairperson of the Council, hold a meeting of the Council at least three times in a year;

(b)    may determine its own procedures at meetings; and

(c)    may appoint committees from its members to assist it in the performance of its functions or the exercise of its powers.

(3)    Any person who is not a member of the Council may be co-opted to serve on the committees mentioned in subsection (2)(c).

(4)    When a provision of this Act requires consultation with the Council on any specific matter before a decision may be taken on that matter and it is not feasible to call a meeting of the Council, that provision is satisfied if -

(a)    a proposed decision on that matter is circulated to the members of the Council; and

(b)    an opportunity is given to them individually to comment in writing on the proposed decision within a reasonable time.

(5)    Despite subsection (2)(a), the chairperson of the Council or, in his or her absence, the deputy chairperson of the Council -

(a)    may convene a special meeting of the Council;

(b)    must, at the written request of the Minister or of at least three members of the Council, convene a special meeting of the Council.

(6)    The majority of all the members of the Council constitute a quorum for any meeting of the Council.

(7)    A decision of a majority of members of the Council present at a meeting is the decision of the Council and, if there is an equality of votes, the person presiding at the meeting has a casting vote in addition to his or her ordinary vote.
 

PART 4

MONEY LAUNDERING AND FINANCING OF TERRORISM CONTROL MEASURES DUTY TO IDENTIFY CLIENTS, CONDUCT ONGOING AND ENHANCED DUE DILIGENCE, KEEP RECORDS AND
REPORT SUSPICIOUS TRANSACTION AND SUSPICIOUS ACTIVITIES

Identification when business relationship is established or single transaction is concluded

21.    (1) For the purposes of this Part, multiple cash transactions in the domestic or foreign currency which, in aggregate, exceed the amount determined by the Centre must be treated as a single transaction if they are undertaken by or on behalf of any person during any day or such period as the Centre may specify.

(2)    An accountable or reporting institution may not establish a business relationship or conclude a single transaction with a prospective client, unless the accountable or reporting institution has taken such reasonable steps in the prescribed form and manner to establish -

(a)    the identity of the prospective client, by obtaining and verifying identification and any further information;

(b)    if the prospective client is acting on behalf of another person, also-

(i)    the identity of that other person;

(ii)    the prospective client’s authority to establish the business relationship or to conclude the single transaction on behalf of that other person; and

(iii)    obtain or verify further information about that other person; and

(c)    if another person is acting on behalf of the prospective client, also -

(i)    the identity of that other person;

(ii)    that other person’s authority to act on behalf of the client; and

(iii)    obtain or verify further information about that other person.

(d)    Despite any exemption that may be granted in terms of this section,  an accountable or reporting institution must establish the identity of    a client if there is a suspicion of money laundering or financing of terrorism.

(3)    Without limiting the generality of subsection (2)(a) and (b), if a prospective or existing client is a legal person, an accountable or reporting institution must take reasonable steps to establish its legal existence and structure, including verification of -
 

(a)    the name of the legal person, its legal form, address, directors, partners or senior management;

(b)    the principal owners and beneficial owners;

(c)    provisions regulating the power to bind the entity and to verify that any person purporting to act on behalf of the legal person is so authorised, and identify those persons.

(4)    An accountable or reporting institution must maintain the accounts in the name of the account holder and must not open, operate or maintain any anonymous account or any account which is fictitious, false or in incorrect name.

(5)    An accountable or reporting institution which contravenes or fails to comply with this section commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Identification when transaction is concluded in the course of business relationship

22.    (1) If an accountable or reporting institution established a business relationship with a client before this Act took effect, it must, within a period determined by the Centre, take such reasonable steps in the prescribed form and manner -

(a)    to establish the identity of the client, by obtaining and verifying identification and any further information;

(b)    if the client is acting on behalf of another person, to establish also -

(i)    the identity of that other person;

(ii)    the client’s authority to conclude that transaction on behalf of that other person; and

(iii)    obtain or verify further information about that other person; and

(c)    if another person is acting in the transaction in question on behalf of the client, to establish also -

(i)    the identity of that other person;

(ii)    that other person’s authority to act on behalf of the client; and

(iii)    obtain or verify further information about that other person; and

(d)    to trace, on such conditions and period as the Centre may determine, all accounts at that accountable or reporting institution that are involved in transactions concluded in the course of that business relationship.
 

(2)    If an accountable or reporting institution is unable within a reasonable period to establish to its reasonable satisfaction the identity of any person as required by subsection (1), it may not conclude any further transaction in the course of that business relationship and must immediately file a suspicious activity report.

(3)    When the identity of the person referred to in subsection (2) is subsequently established, further transactions may only be concluded after the Centre has been informed of the identity of that person.

(4)    Subsection (l) does not apply in respect of a business relationship which an accountable or reporting institution knows or reasonably believes to have ended prior to the commencement of this Act.

(5)    If, after this Act took effect, an accountable or reporting institution recommenced a business relationship with a client or a business relationship referred to in subsection (4), the accountable or reporting institution may not conclude a transaction in the course of that business relationship unless the accountable or reporting institution has taken such reasonable steps referred to in subsection (1).

(6)    An accountable or reporting institution which contravenes or fails to comply with subsection (1), (2), (3) or (5), commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Risk clients

23  (1)  Accountable  institutions   must   have   appropriate   risk  management and monitoring systems in place to identify clients or beneficial owners whose activities may pose a risk of money laundering, financing of terrorism, or both.

(2)    Where a client or beneficial owner has been identified through such systems to be a high risk for money laundering, financing of terrorism, or both, the employees of an accountable institution must -

(a)    obtain approval from the directors, partners or senior management of that accountable institution before establishing a business relationship with such new client, or in case of an existing client, obtain approval from the directors, partners or senior management of that accountable institution to continue the business relationship with the client; and

(b)    take measures as prescribed by the Centre to identify, as far as reasonably possible, the source of wealth, funds and any other assets of the client.

(3)    An accountable institution which contravenes or fails to comply with subsections (1) and (2) commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.
 

On-going and enhanced due diligence

24.    (1)    An accountable institution must exercise on-going due diligence in respect of all its business relationships which must, at a minimum, include -

(a)    maintaining adequate current and up-to-date information and records relating to the client and beneficial owner;

(b)    monitoring the transactions carried out by the client in order to ensure that such transactions are consistent with the accountable or reporting institution’s knowledge of the client, the client’s commercial or personal activities and risk profile; and

(c)    ensuring the obligations relating to high risk clients, as prescribed in section 23, and correspondent banking relationships are fulfilled.

(2)    An accountable institution must -

(a)    pay special attention to all complex, unusual large transactions and all unusual patterns of transactions which have no apparent economic or visible lawful purpose;

(b)    at the direction of the Minister, pay special attention to business relations and transactions with persons, including legal persons and trusts, from or in countries that do not or insufficiently apply the relevant international standards to combat money laundering and the financing of terrorism;

(c)    examine as far as possible the background and purpose of transactions under paragraphs (a) and (b) and set forth in writing their findings;

(d)    keep the findings made in terms of paragraph (c) available for competent authorities and company auditors for at least five years, or longer if specifically so requested by a competent authority before the expiration of the 5 year period;

(e)    take such specific measures as may be prescribed from time to time by the Minister to counter the risks with respect to business relations and transactions specified under paragraph (b); and

(f)    conduct enhanced monitoring and due diligence when -

(i)    any doubts arise about the veracity or adequacy of previously obtained customer identification data; or

(ii)    there is a suspicion of money laundering or financing of terrorism;

so as to prevent money laundering, financing of terrorism or the commission of any other offence.

(3)    An accountable institution which contravenes or fails to comply with this section, commits an offence and is liable to a fine not exceeding N$100 million or,
 

where the commission of the offence is attributable to a representative of the accountable institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Identification and account-opening for cross-border correspondent banking relationships

25.    (1) Where applicable, when entering  into  cross-border  correspondent banking relationship, the employees of an accountable institution must -

(a)    identify and verify the identification of respondent institutions with which it conduct correspondent banking relationships;

(b)    collect information on the nature of the respondent institution’s activities;

(c)    based on publicly-available information, evaluate the respondent institution’s reputation and the nature of supervision to which it is subject;

(d)    obtain approval from the directors, partners or senior management of that accountable institution before establishing a correspondent banking relationship;

(e)    evaluate the controls implemented by the respondent institution with respect to anti-money laundering and combating the financing of terrorism;

(f)    establish an agreement on the respective anti-money laundering and combating the financing of terrorism responsibilities of each party under the relationship; and

(g)    in the case of a payable-through account, ensure that the respondent institution has verified its customer’s identity, has implemented mechanisms for on-going monitoring with respect to its clients and is capable of providing relevant identifying information on request.

(2)   An  accountable  institution  which  contravenes  or  fails  to  comply  with subsection (1), commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Records to be kept of business relationships and transactions

26.    (1) Whenever an accountable or reporting institution establishes a business relationship or concludes a transaction with a client, whether the transaction is a single transaction or concluded in the course of a business relationship which that accountable or reporting institution has with the client, the accountable or reporting institution must keep records in the prescribed form and manner of -

(a)    the identity of the client;
 

(b)    if the client is acting on behalf of another person -

(i)    the identity of the person on whose behalf the client is acting; and

(ii)    the client’s authority to establish that business relationship    or to conclude that single transaction on behalf of that other person;

(c)    if another person is acting on behalf of the client -

(i)    the identity of that other person; and

(ii)    that other person’s authority to act on behalf of the client;

(d)    the manner in which the identity of a person referred to in paragraph (a), (b) or (c) was established;

(e)    the nature of that business relationship or transaction;

(f)    all accounts at that accountable or reporting institution that are involved in -

(i)    transactions concluded in the course of that business relationship; or

(ii)    a single transaction;

(g)    in the case of a transaction -

(i)    the amount involved; and

(ii)    the parties to that transaction;

(h)    client or transaction files and business correspondence;

(i)    enhanced due diligence findings referred to in section 24 (2)(c) and (d);

(j)    copies of all reports filed with the Centre pursuant to sections 32, 33 and 34 and supporting documents;

(k)    the name of the person who obtained the information referred to in paragraph (a) to (g) on behalf of the accountable or reporting institution; and

(l)    any document or copy of a document obtained by the accountable or reporting institution in order to verify a person’s identity in terms of sections 21 and 22.

(2)    Records kept in terms of subsection (1) may be kept in electronic form.

(3)    The records referred to in subsection (1) must include records as may be determined by the Centre.
 

(4)    An accountable or reporting institution which contravenes or fails to comply with this section commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

(5)    A person who destroys or tampers with any records kept under this section commits an offence and is liable to a fine not exceeding N$100 million or      to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Period for which record must be kept

27.    (1) An accountable or reporting institution must keep the records referred to in section 26 which relate to -

(a)    the establishment of a business relationship, for at least five years from the date on which the business relationship is terminated; or longer if specifically so requested by competent authorities before the expiration of the 5 year period; and

(b)    a transaction which is concluded, for at least five years from the date on which that transaction is concluded, or longer if specifically so requested by competent authorities before the expiration of the 5 year period;

(c)    suspicious transaction reports made pursuant to section 33, including any supporting documentation, for at least five years from the date the report was made, or longer if specifically so requested by competent authorities before the expiration of the 5 year period.

(2)    An accountable or reporting institution must also maintain sufficient records to enable the reconstruction of any transaction for both clients and non-clients whether concluded as a single transaction or in the course of a business relationship, for a period of not less than 5 years from the date the transaction has been completed or the business relationship has been terminated, or longer if specifically so requested by competent authorities before the expiration of the 5 year period.

(3)    An accountable or reporting institution must maintain all books and records with respect to their clients and transactions as set forth in section 26 and must ensure that such records, any supporting documentation and underlying information are available on a timely basis at the request of any competent authority

(4)    An accountable or reporting institution which contravenes or fails to comply with subsection (1), (2) or (3) commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Centralisation of records

28.    (1) The duty imposed by section 26 on an accountable or reporting institution to keep records of the matters specified in that section may, in the case of two
 

or more accountable or reporting institutions belonging to the same group, be centralised, as prescribed and be deemed to be performed by an accountable or reporting institution within the same group on behalf of those accountable or reporting institutions, provided that such accountable or reporting institutions have free and easy access to the records.

(2)  A person who destroys or tampers with any records kept under this  section commits an offence and is liable to a fine not exceeding N$100 million or      to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Records may be kept by third parties

29 (1) The duties imposed by section 26 on an accountable or reporting institution to keep record of the matters specified in that section may be performed    by a third party on behalf of the accountable or reporting institution as long as the accountable or reporting institution has unrestricted access to the records.

(2)    If a third party referred to in subsection (1) fails to properly comply with the requirements of section 26 on behalf of the accountable or reporting institution concerned, the accountable or reporting institution is liable for that failure.

(3)    If an accountable or reporting institution appoints a third party to perform the duties imposed on it by section 26, the accountable or reporting institution must provide the Centre with the prescribed particulars regarding the third party.

(4)    A person who destroys or tampers with any records kept under this section commits an offence and is liable to a fine not exceeding N$100 million or      to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Admissibility of records

30.    (1)  A record kept in terms of sections 26 and 48, or a certified   extract of that record, or a certified printout of an electronic record of which direct oral evidence of its contents may be given, is on its mere production in a court admissible as evidence in a matter before the court.

(2)    Any record of an investigation conducted under this Act, any property, report or document produced or any statement is, notwithstanding any law to the contrary, admissible as evidence in any proceedings in any court for, or in relation to, an offence or any other matter under this Act or any other offence under any other law, regardless whether such proceedings are against the person who was examined, or who produced the property, record, report or document, or who made the written statement on oath or affirmation, or against any other person.

Centre has access to records

31.    (1)    The Centre or an authorised representative of the Centre -

(a)    has access during ordinary working hours to any record kept in terms of this Act, relating to suspicious money laundering or financing of terrorism activities, by or on behalf of -
 

(i)    an accountable institution;

(ii)    a reporting institution;

(iii)    a supervisory body;

(iv)    a regulatory body;

(v)    a law enforcement agency;

(vi)    any other person or institution that holds relevant records or information, including information on a commercially held database;

(vii)    any office, ministry or agency within the Government; and

(b)    may examine, make extracts from or copies of those records.

(2)    An accountable or reporting institution, a supervisory or regulatory body or any other person or institution must without delay give all reasonable assistance to an authorised representative of the Centre necessary to enable that representative to exercise the powers mentioned in subsection (1).

(3)    An accountable or reporting institution, a supervisory body, regulatory body, or any other person which contravenes or fails to comply with subsection (2) commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Cash transactions above prescribed limits

32.    (1) An accountable and reporting institution must, within the prescribed period, report to the Centre the prescribed particulars concerning a transaction concluded with a client if in terms of the transaction an amount of cash in excess of the prescribed amount -

(a)    is paid by the accountable or reporting institution to the client, or to a person acting on behalf of the client, or to a person on whose behalf the client is acting; or

(b)    is received by the accountable or reporting institution from the client, or from a person acting on behalf of the client, or from a person on whose behalf the client is acting.

(2) An accountable or reporting institution which contravenes or fails to comply with subsection (1) commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.
 

Suspicious transactions and suspicious activities

33.    (1)    A person who -

(a)    carries on any business or the business of an accountable or reporting institution, or is in charge of, or manages a business undertaking, or a business undertaking of an accountable or reporting institution; or

(b)    is a director of, secretary to the board of, employed or contracted by any business, or the business of an accountable or reporting institution,

and who knows or reasonably ought to have known or suspect that, as a result of a transaction concluded by it, or a suspicious activity observed by it, it has received or is about to receive the proceeds of unlawful activities or has been used or is about to be used in any other way for money laundering or financing of terrorism purposes, must, within the prescribed period after the suspicion or belief arose, as the case may be, report to the Centre -

(i)    the grounds for the suspicion or belief; and

(ii)    the prescribed particulars concerning the transaction or suspicious activity.

(2)    If an accountable or reporting institution or business suspects or believes there are reasonable grounds to suspect that, as a result of a transaction which it is asked to conclude or about which enquiries are made, it may receive the proceeds of unlawful activities or in any other way be used for money laundering or financing of terrorism purposes should the transaction be concluded, it must, within the prescribed period after the suspicion or belief arose, report to the Centre -

(a)    the grounds for the suspicion or belief, and

(b)    the prescribed particulars concerning the transaction.

(3)    An accountable or reporting institution or business which made or is to make a report in terms of this section must not disclose that fact or any information regarding the contents of that report, to any other person, including the person in respect of whom the report is or to be made, otherwise than -

(a)    within the scope of the powers and duties of the accountable or reporting institution or business in terms of any legislation;

(b)    for the purpose of carrying out this Act;

(c)    for the purpose of legal proceedings, including any proceedings before a judge in chambers; or

(d)    in terms of an order of court.

(4)    A person who knows or suspects that a report has been or is to be made in terms of this section must not disclose that knowledge or suspicion or any information regarding the contents or suspected contents of that report to any other person, including the person in respect of whom the report is or is to be made otherwise than -
 

(a)    within the scope of that person’s powers and duties in terms of any legislation;

(b)    for the purpose of carrying out this Act;

(c)    for the purpose of legal proceedings, including any proceedings before a judge in chambers; or

(d)    in terms of an order of a court.

(5)    An accountable or reporting institution or business which contravenes or fails to comply with this section commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

(6)    A person who contravenes or fails to comply with this section commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Electronic transfers of money to, from and within Namibia

34.    (1) If an accountable or reporting institution through an electronic transfer, on behalf or on the instruction of another person -

(a)    sends money in excess of a prescribed amount, regardless of the destination of such funds; or

(b)    receives money in excess of a prescribed amount, regardless of the origin of such funds,

it must, within the prescribed period after the money was received or transferred, report the transfer, together with the prescribed originator information, to the Centre.

(2)    If an accountable or reporting institution undertakes to send an electronic transfer in excess of a prescribed amount it must, where reasonably possible, include the prescribed originator information in the electronic message or payment form accompanying the transfer, or be in a position to request such originator information from the originator institution.

(3)    When an accountable or reporting institution acts as an intermediary in a chain of electronic transfers, it must transmit all the information it receives with that electronic transfer, to the recipient institution.

(4)    If  an  accountable  or  reporting  institution  referred  to  in subsection
(2)    receives an electronic transfer that does not contain all the prescribed originator information, it must take the necessary measures to ascertain and verify the missing information from the ordering institution or the beneficiary, before it honours any of the instructions contained in the transfer.

(5)    If an accountable or reporting institution is not able to obtain the prescribed originator information, it must file a suspicious transaction report.
 

(6)    An accountable or reporting institution must treat an electronic transfer that it undertakes to send, receive or transmit as an intermediary, or receive as the recipient institution, as a transaction for which it must comply with the record-keeping requirements of sections 26 and 27.

(7)    An accountable or reporting institution which contravenes or fails to comply with a provision of this section, commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Obligations of and reporting by supervisory bodies

35.    (1) If a supervisory body suspects that an accountable or reporting institution has, as a result of a transaction concluded by the institution, knowingly or unknowingly received or is about to receive the proceeds of unlawful activities or has in any other way been used for money laundering or financing of terrorism purposes, it must -

(a)    inform the Centre of the knowledge or suspicion outlining: -

(i)    the grounds for the knowledge or suspicion; and

(ii)    the prescribed particulars concerning the transaction or suspicion; and

(b)    retain the records held by it which relate to that knowledge or suspicion, for such period as the Centre may reasonably require, but not less than 5 years from date of the report or longer if specifically so requested by competent authorities before the expiration of the 5 year period.

(2)    A  supervisory  body  is  responsible  for  supervising,   monitoring and enforcing compliance with this Act or any regulation, order, circular, notice, determination or directive issued in terms of this Act, in respect of all accountable or reporting institutions supervised by it.

(3)    Any accountable or reporting institution that is not supervised by a supervisory body is deemed to be supervised by the Centre for purposes of this Act.

(4)    The responsibility referred to in subsection (2) forms part of the legislative mandate of all supervisory bodies and constitutes a core function of supervisory bodies which function must be executed using a risk-based approach.

(5)    Any Act that regulates a supervisory body or authorises that supervisory body to supervise or regulate any accountable or reporting institution, must be read   as including subsection (2) and a supervisory body may utilise any fees or charges      it is authorised to impose or collect, to defray expenditure incurred in performing its obligations under this Act or any regulation, order, circular, notice, determination or directive issued in terms of this Act.

(6)    A supervisory body, in meeting its obligation referred to in subsection
(2)    may -
 

(a)    delegate the exercise of any power to any of its members, employees or any other suitable person;

(b)    require an accountable or reporting institution supervised or regulated by it to report on that institution’s compliance with this Act or any regulation, order, notice, circular, determination or directive issued in terms of this Act, in the form, manner and timeframes prescribed by the Centre, after consultation with the supervisory body;

(c)    issue or amend any licence, registration, approval or authorisation that the supervisory body may issue, or has issued, or grant in accordance with any Act, to include the following conditions -

(i)    compliance with this Act; and

(ii)    the continued availability of human, financial, technological and other resources to ensure compliance with this Act or any order, notice, circular, determination or directive made in terms of this Act.

(7)    A supervisory body must submit to the Centre, within the prescribed period and in the prescribed manner, a written report on any supervision and monitoring activities conducted in respect of an accountable or reporting institution in terms of this Act or any regulation order, notice, circular, determination or directive made in terms of this Act.

(8)    A supervisory body must register in the prescribed form and manner particulars of all accountable or reporting institutions, regulated or supervised by it, with the Centre for purposes of supervising compliance with this Act or any regulation, order, notice, circular, determination or directive made in terms of this Act.

(9)    The Centre and a supervisory body must consult and cooperate with each other in exercising their powers and the performance of their functions in terms of this Act.

(10)    The Centre may issue an administrative notice , penalising a supervisory body by imposing an appropriate, prescribed fine without recourse to a Court, if that body has, without reasonable excuse failed to comply in whole or in part with any obligations under this Part, or any regulation, order, notice, circular, determination or directive issued in terms of this Act.

(11)    If the Centre is satisfied that a supervisory body has failed without reasonable excuse to comply in whole or in part with any obligations in this Act it may apply to the High Court for an order compelling any or all the officers or employees of that supervisory body to comply with those obligations.

(12)    If the High Court is satisfied that a supervisory body has failed without reasonable excuse to comply in whole or in part with any obligation imposed by this Act it may issue the order applied for in terms of subsection (11), or make any order it considers appropriate.

(13)    Despite subsections (11) and (12), the Centre may enter into an enforceable undertaking with any supervisory body that has without reasonable excuse
 

failed to comply in whole or in part with any obligations in this Part to implement any action plan to ensure compliance with its obligations under this Part.

(14)    Aperson who contravenes or who fails to comply with an administrative notice under subsection (10) or an enforceable undertaking in terms of subsection (13), commits an offence and is liable to a fine not exceeding N$10 million or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment and, in the case of a continuing offence, to a further fine not exceeding N$50 000 for each day during which the offence continues after conviction.

(15)    The relevant supervisory body of an accountable or reporting institution or such other person as the relevant supervisory body may think fit must -

(a)    adopt the necessary measures to prevent or avoid having any person who is not fit and proper from controlling, or participating, directly   or indirectly, in the directorship, management or operation of an accountable or reporting institution;

(b)    in making a determination in accordance with any Act applicable to it as to whether a person is fit and proper to hold office in an accountable or reporting institution, take into account any involvement, whether directly or indirectly, by that person in any non-compliance with this Act or any regulation, order, notice, circular, determination or directive made in terms of this Act, or any involvement in-

(i)    any money laundering activity; or

(ii)    any terrorist or financing of terrorism related activity.

(c)    supervise accountable and reporting institutions, and regulate and verify, through regular examinations, that an accountable or reporting institution adopts and implements compliance measures consistent with this Act,

(d)    issue guidelines to assist accountable and reporting institutions in detecting suspicious patterns of behaviour in their clients and these guidelines shall be developed taking in to account modern and secure techniques of money management and will serve as an educational tool for accountable and reporting institutions’ personnel; and

(e)    co-operate with other enforcement agencies and lend technical assistance in any investigation, proceedings relating to any unlawful activity or offence under this Act.

(16)    The supervisory body or regulatory body of an accountable or reporting institution, upon recommendation of the Centre, may revoke or suspend the licence   of the accountable or reporting institution or cause the institution not to carry on such business -

(a)    if the accountable or reporting institution has been convicted of an offence under this Act; or
 

(b)    if the accountable or reporting institution consistently failed or refused to adhere to any or all of its obligations under this Act or any regulation, order, notice, circular, determination or directive issued in terms of this Act.

(17)    The supervisory body or regulatory body must report promptly to the Centre any information received from any accountable or reporting institution related to transactions or activities that could be treated as an offence under this Act.

(18)    A supervisory body which contravenes or fails to comply with subsection (1), (2), (7), (8), (15), (16) or (17) commits an offence and is liable to a fine not exceeding N$10 million or, where the commission of the offence is attributable to a representative of the supervisory body, to such fine or imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment.

(19)    An accountable or reporting institution that contravenes or fails to comply with subsection (6)(b) commits an offence and is liable to a fine not exceeding N$10 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment.

Declaration of cross border movement of cash and bearer negotiable instruments amounting to or exceeding amount determined by Centre

36.    (1)      Every person entering into or departing from Namibia who      is carrying or transporting cash, bearer negotiable instruments, or both, equal to or exceeding an amount determined by the Centre, must declare such cash or instrument, to an officer of the Customs and Excise at the port of entry into or departure from Namibia.

(2)    Every person importing into or exporting out of Namibia, through containerized cargo, cash or  bearer  negotiable  instruments  equal  to  or  exceeding an amount determined by the Centre, must declare such cash or bearer negotiable instruments to an officer of the Customs and Excise at the port of entry into or departure from Namibia.

(3)    Every person mailing or conveying any post whether by mail, telegram or courier entering or departing Namibia that contains cash or bearer negotiable instruments equal to or exceeding an amount determined by the Centre, must declare such cash or bearer negotiable instruments to a designated officer at the relevant Post Office or an officer of the Customs and Excise at the port of entry into or departure from Namibia.

(4)    The declaration referred to in subsections (1), (2) or (3) must be made on a prescribed form and be presented to an officer of the Customs and Excise at that port of entry into or departure from Namibia, or to a designated officer at the relevant Post Office.

(5)    Once a declaration is made in terms of subsections (1), (2) or (3), an officer of the Customs and Excise or Post Office to whom the declaration is made, must issue an acknowledgement as prescribed by the Centre to the person making the declaration.
 

(6)    Any person that is required to make a declaration in terms of subsections (1), (2) or (3) of cash or bearer negotiable instruments, or both, and who fails to make such declaration, or makes a false declaration, commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

(7)    Any cash or bearer negotiable instrument that is not declared as aforesaid, or that is falsely declared, is liable for seizure and forfeiture to the State, in the form and manner as prescribed.

Powers of officers of Customs and Excise in respect of cash or bearer negotiable instruments being conveyed in or out of Namibia

37.    (1) For the purposes of ascertaining  any  matter  referred  to  in section 36 or exercising any powers under section 36, an officer of the Customs and Excise or Post Office may require any person referred to in section 36(1), (2) or (3) to -

(a)    answer questions that the officer of the Customs and Excise or Post Office may put to that person which are relevant to any issue referred to in section 36;

(b)    make and sign a cash or bearer negotiable instrument declaration form;

(c)    provide information concerning the origin of the cash or bearer negotiable instrument and its intended purpose, in the event of a false declaration or a failure to make a declaration; and

(d)    answer any other question to ensure compliance with section 36.

(2)    An officer of the Customs and Excise or Post Office may -

(a)    seize and detain cash or bearer negotiable instruments when such officer reasonably suspects that such cash or bearer negotiable instruments -

(i)    are proceeds of crime;

(ii)    may be used to commit the offence of money laundering;

(iii)    may be used to commit the offence of terrorism or terrorist financing;

(iv)    is connected to terrorist or terrorist financing activities;

(b)    seize and detain cash or bearer negotiable instruments when such officer reasonably suspects -

(i)    the person concerned has failed to make a declaration in terms of subsections 36(1), (2) or (3); or

(ii)    the person concerned has made a false declaration.

(3)    An officer of the Customs and Excise or Post Office may seize and detain any cash, bearer negotiable instrument, article, book or document including any
 

container or package, which, in his or her opinion, may afford evidence relating to the commission of, or an attempt to commit a money laundering or financing of terrorism offence, or any matter incidental thereto.

(4)    An officer of the Customs and Excise may board any ship or aeroplane within the territory, the territorial sea or the exclusive economic zone of Namibia, or may stop and board any vehicle entering or leaving Namibia, and may search any such ship, aeroplane or vehicle or any person found therein or thereon, for undeclared or falsely declared cash or bearer negotiable instruments.

(5)    If any container, cargo, vehicle, cabin, place, safe, or package is locked and the keys thereof are not produced to the officer of the Customs and Excise or Post Office on demand, the officer may, for any purpose under this section, open or enter such container, vehicle, cabin, place, safe, or package in any manner he or she thinks appropriate.

(6)    All officers of the Customs and Excise or Post Office must cooperate with other law enforcement agencies on any matter concerning investigations of money laundering activities, financing of terrorist activities or both.

(7)    An officer of the Customs and Excise or Post Office may detain and hand over to the police any person who has committed an offence under this section to be arrested without a warrant of arrest.

(8)    Any cash or bearer negotiable  instruments seized  and detained  by  an officer of the Customs and Excise or Post Office in terms of subsection 2(a) must be handed over to the Namibian Police for purposes of criminal investigations and prosecutions.

(9)    Any cash or bearer negotiable instruments seized and detained by an officer of the Customs and Excise or Post Office in terms of subsection 2(b) must be handed over to the Centre for purposes of forfeiture as envisaged in subsection 36(7).

Making declarations on cash or bearer negotiable instruments available to Centre

38     (1)      The Commissioner of Customs and Excise or the Post Master must within a prescribed period and in the prescribed form and manner make all declarations made in terms of subsections 36(1), (2) or (3) to an officer of the Customs and Excise or Post Office, respectively, available to the Centre.

(2)     An officer of the Customs and Excise or Post Office who wilfully fails to electronically register and make information referred to in section 36 available to the Commissioner of Customs and Excise or the Post Master for onward submission  to the Centre, commits and offence and is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Obligations of accountable and reporting institutions

39.    (1) An accountable institution, on a regular basis, must conduct money laundering and financing of terrorism activities risk assessments taking into account the scope and nature of its clients, products and services, as well as the geographical area from where its clients and business dealings originate.
 

(2)    Accountable and reporting institutions not supervised or regulated by a supervisory body or regulatory body must register their prescribed particulars with the Centre for purposes of supervising compliance with this Act or any regulation, notice, order, circular, determination or directive issued in terms of this Act.

(3)    Accountable and reporting institutions must develop, adopt and implement a customer acceptance policy, internal rules, programmes, policies, procedures and controls as prescribed to effectively manage and mitigate risks of money laundering and financing of terrorism activities.

(4)    A customer acceptance policy, internal rules, programmes, policies, procedures referred to in subsection (3) must be approved by directors, partners, or senior management of accountable or reporting institution and must be consistent with national requirements and guidance, and should be able to protect the accountable or reporting institution’s systems against any money laundering and financing of terrorism activities taking into account the results of any risk-assessment conducted under subsection (1).

(5)    The programmes in subsection (3) may include -

(a)    the establishment of procedures to ensure high standards of integrity of its employees and a system to evaluate the personal, employment and financial history of those employees;

(b)    on-going employee training programmes, such as “Know Your Customer” programmes and instructing employees with regard to responsibilities under this Act; and

(c)    an independent audit function to check compliance with those programmes;

(d)    policies and procedures to prevent the misuse of technological developments including those related to electronic means of storing and transferring funds or value; and

(e)    policies and procedures to address the specific risks associated with non-face-to-clients or transactions for purposes of establishing identity and on-going customer due diligence.

(6)    Accountable and reporting institutions must designate compliance officers at management level, where applicable, who will be in charge of the application of the internal programmes and procedures, including proper maintenance of records and reporting of suspicious transactions.

(7)    Accountable and reporting institutions must implement compliance programmes under subsection (3) at its branches and subsidiaries within or outside Namibia.

(8)    An accountable institution must develop audit functions to evaluate any policies, procedures and controls developed under this section to test compliance with the measures taken by the accountable institution to comply with this Act and the effectiveness of those measures.
 

(9)    The internal rules referred to in subsection (3) must include -

(a)    the establishment and verification of the identity of persons whom the institution must identify in terms of Part 4 of this Act;

(b)    the information of which record must be kept in terms of Part 4 of this Act;

(c)    identification of reportable transactions; and

(d)    the training of employees of the institution to recognise and handle suspected money laundering and financing of terrorism activities.

(10)    Internal rules made under this section must comply with the prescribed requirements and be made available to each employee of an accountable or reporting institution.

(11)    The Centre may determine the type and extent of measures accountable and reporting institutions shall undertake with respect to each of the requirements in this section, having regard to the risk of money laundering or financing of terrorism and the size of the business or profession.

(12)    Any accountable or reporting institution that contravenes or fails to comply with this section commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Reporting procedures

40.    (1)   A report required to be made in terms of this Act must be made in the prescribed manner.

(2)    The Centre, or an investigating authority acting with the permission of the Centre or under the authority of a competent authority may request an accountable institution, reporting institution, supervisory body , regulatory body or person that has made a report in terms of this Act to furnish the Centre or that investigating authority without delay with any additional information concerning the report which the Centre or the investigating authority may reasonably require and which that accountable institution, reporting institution, supervisory body, regulatory body or person has.

(3)    An accountable or reporting institution, supervisory body or regulatory body which fails to comply with a request made under subsection (2) commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, supervisory or regulatory body, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

(4)    A person who fails to comply with a request made under subsection (2) commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.
 

Continuation of suspicious transactions

41.    An accountable or reporting institution that has made a report to the Centre in terms of section 32, 33 or 34 concerning a transaction, may continue with and carry out the transaction unless the Centre directs the accountable or reporting institution in terms of section 42 not to proceed with the transaction.

Intervention by Centre

42.    (1) If the Centre, after consulting an accountable or reporting institution, has reasonable grounds to suspect that a transaction or a proposed transaction may involve the proceeds of unlawful activities or may constitute money laundering  or the financing of terrorism; it may direct the accountable or reporting institution in writing not to proceed with the carrying out of that transaction or any other transaction in respect of the funds affected by that transaction or proposed transaction for a period determined by the Centre, which may not be more than 12 working days, in order to allow the Centre -

(a)    to make the necessary inquiries concerning the transaction; and

(b)    if the Centre thinks it appropriate, to inform and advise an investigating authority or the Prosecutor-General.

(2)       An accountable or reporting institution which fails to comply with       a direction made under subsection (1) commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Monitoring orders

43.    (1) A judge in chambers may, on written application by the Centre, order an accountable or reporting institution to report to the Centre, on such terms and in such confidential manner as may be specified in the order, all transactions concluded by a specific person with the Accountable or reporting institution or all transactions conducted in respect of a specific account or facility at the accountable or reporting institution, if there are reasonable grounds to suspect that -

(a)    that person is using the accountable or reporting institution for money laundering or financing of terrorism purposes;

(b)    that account or other facility is being used for the purposes of money laundering or financing of terrorism;

(2)    An order in terms of subsection (1) lapses after three months unless extended in terms of subsection (3).

(3)    A judge in chambers may extend an order issued in terms of subsection
(1)    for further periods not exceeding three months at a time if -

(a)    the reasonable grounds for the suspicion on which the order is based still exist; and
 

(b)    the judge is satisfied that the interest of justice is best served by investigating the suspicion in the manner provided for in this section.

(4)    An application referred to in subsection (1) must be heard and an order must be issued without notice to or hearing the person or persons involved in the suspected money laundering or financing of terrorism activities.

(5)    An accountable or reporting institution which fails to comply with an order made under subsection (1) commits an offence and is liable to a fine not exceeding N$100 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Reporting duty not affected by confidentiality rules

44.    (1)    No duty of secrecy  or confidentiality or any other restriction   on the disclosure of information, whether imposed by legislation or arising from the common law or agreement, affects compliance with a provision of this Act.

(2) Subsection (1) does not apply if the obligation of secrecy or other restriction is based on the common law right to professional privilege between a legal practitioner and his or her client in respect of information communicated to the legal practitioner so as to enable him or her to -

(a)    provide advice to the client;

(b)    defend the client; or

(c)    render other legal assistance to the client in connection with an offence under any law in respect of which -

(i)    the client is charged;

(ii)    the client has been arrested or summoned to appear in court; or

(iii)    an investigation with a view to institute criminal proceedings is being conducted against the client.

Protection of persons making reports

45.    (1)   No action, whether criminal or civil, lies against an accountable or reporting institution, supervisory body or person complying in good faith with a provision of this Part, including any director, employee or other person acting on behalf of that accountable or reporting institution, supervisory or regulatory body or person.

(2)    A person who has made, initiated or contributed to a report in terms of this Part is competent, but not compellable, to give evidence in criminal proceedings arising from the report.

(3)    No evidence concerning the identity of a person who made a report   in terms of this Part or the contents of that report, or the grounds for that report, is admissible as evidence in criminal proceedings unless that person testifies at those proceedings.
 

(4)    No evidence concerning the identity of a person who initiated or contributed to a report in terms of this Part is admissible as evidence in criminal proceedings unless that person testifies at those proceedings.

Tipping off

46.    A person who -

(a)    knows or has reason to suspect that an authorised officer is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted under or for the purposes of this Act and who discloses to any other person information or any other matter which is likely to prejudice that investigation or proposed investigation; or

(b)    knows or has reason to suspect that a disclosure has been made to an authorised officer under this Act and discloses to any other person information or any other matter which is likely to prejudice any investigation which might be concluded following the disclosure,

commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a term not exceeding 30 years, or to both such fine and such imprisonment.

Admissibility as evidence of reports made to Centre

47.    Acertificate issued by an official of the Centre that information specified in the certificate was reported to the Centre in terms of this Part, is, subject to section 45(3) and (4), on its mere production in a court admissible as evidence in a matter before that court.

Access to information held by Centre

48.    (1) If the Centre, on the basis of its analysis and assessment under section 9 has reasonable grounds to suspect that information would be relevant to     the national security or economic stability of Namibia, the Centre must disclose that information to an investigating authority inside Namibia, relevant Supervisory Bodies, relevant regulators and to the Namibia Central Intelligence Service.

(2)    The Centre must record in writing the reasons for all decisions to disclose information made under subsection (1).

(3)    For the purposes of subsection (1), “information”, includes in respect of a financial transaction or an importation or exportation of currency or monetary instruments -

(a)    the name of the client or of the importer or exporter, or any person or entity acting on their behalf;

(b)    the name and address of the place of business where the transaction occurred or the address of the port of entry into Namibia where the importation or exportation occurred and the date when the transaction, importation or exportation occurred;
 

(c)    the amount and type of currency or monetary instruments involved or, in the case of a transaction, if no currency or monetary instruments are involved, the value of the transaction or the value of the funds that are the subject of the transaction;

(d)    in the case of a transaction, the transaction number and the account number, if any; and

(e)    any other similar identifying information that may be prescribed for the purposes of this section.

(4)    The Centre may, spontaneously or upon request disclose any information to an institution or agency in a foreign state that has powers and duties similar to those of the Centre under this Act on such terms and conditions as are set out in an agreement, between the Centre and that foreign agency regarding the exchange of that information.

(5)    Without limiting the generality of subsection (4), an agreement entered into under that subsection may -

(a)    restrict the use of information to purposes relevant to investigating    or prosecuting an unlawful activity, money laundering, financing of terrorism, or an offence that is substantially similar to such offences; and

(b)    stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the Centre.

(6)    The Centre may in writing authorise a competent authority to have access to such information as the Centre may specify for the purposes of performing the relevant authority’s functions.

(7)    The Centre may, in writing, authorise the Prosecutor-General or his or her designated officer to have access to such information as the Centre may specify for the purpose of performing his or her duties or dealing with a foreign state’s request to mutual assistance in criminal matters.

(8)    Despite anything to the contrary in subsection (4) the Centre may, spontaneously or upon request,  disclose any information to an institution or agency   in a foreign state that has the powers and duties to those of the Centre under this Act if the Centre is satisfied that that corresponding institution has given appropriate written undertakings -

(a)    for protecting the confidentiality of any information communicated to it; and

(b)    for controlling the use that will be made of the information, including an undertaking that it will not be used as evidence in any proceedings.

(9)    The Centre may make inquiries on behalf of a foreign agencies agency where the inquiry may be relevant to the foreign agencies agency’s analysis of a matter involving suspected proceeds of crime, money laundering, terrorist property or suspected financing of terrorism.
 

(10)    In making inquiries as provided for in subsection (9), the Centre may -

(a)    search its own databases,  including  information  related  to  reports of suspicious transactions and suspicious activities, requests for information and other databases to which the Centre has direct or indirect access, including law enforcement databases, public databases, administrative databases and commercial databases;

(b)    obtain from accountable institutions or reporting institutions, or from any other person holding records or information on behalf of such accountable or reporting institutions, information that is relevant in connection with such request;

(c)    obtain from competent authorities information that is relevant in connection with such request ; and

(d)    take any other action in support of the request of the foreign agencies that is consistent with the authority of the Centre.

(11)    A person who obtains information from the Centre must use that information only within the scope of that person’s powers and duties and for the purposes authorised by this Act.

(12)    The Centre may make available any information obtained by it, or to which it has access, to any ministry, office or agency within Government, a supervisory body, a regulator, a self-regulating association or organisation or accountable and reporting institutions that is affected by or has a legitimate interest in that information.

(13)    A person who uses information obtained from the Centre otherwise than in accordance with this section commits an offence and is liable on conviction to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or to both such fine and imprisonment.

Protection of confidential information

49.    (1) A person may not disclose confidential information held by or obtained from the Centre except -

(a)    within the scope of that person’s powers and duties in terms of any legislation;

(b)    for the purpose of carrying out this Act;

(c)    with the permission of the Centre;

(d)    for the purpose of legal proceedings, including any proceedings before a judge in chambers; or

(e)    in terms of an order of a court.

(2)    A person who has obtained information from the Centre under this Act may not, when he or she is no longer authorised to keep the information under this
 

Act, make a record of the information, disclose or communicate the information in any circumstances.

(3)    A person who contravenes this section commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Protection of informers and information

50.    (1) Where a person discloses to the Centre information in terms of section 33, that any proceeds of unlawful activities is used in connection with or derived from money laundering, or terrorist financing or any matter on which that information is based -

(a)    if he or she does any act in contravention of the provisions of this Act and the disclosure relates to the arrangement concerned he or she does not commit an offence if the disclosure is made -

(i)    before he or she does the act concerned, being an act done with the consent of the Centre ; or

(ii)    after he or she does the act, but the disclosure is made on his or her initiative and as soon as it is reasonable for him or her to make it;

(b)    despite any other written law or the common law the disclosure shall not be treated as a breach of any restriction on the disclosure of information imposed by any law, contract or rules of professional conduct; and

(c)    he or she is not liable for any damages for any loss arising out of -

(i)    the disclosure; or

(ii)    any act done or committed to be done in relation to the property in consequence of the disclosure

(2)    Where any information relating to an offence under this Act is received by an authorized officer the information and identity of the person giving the information must be confidential between the authorized officer and that person and everything contained in such information, the identity of the person who gave the information and all other circumstances relating to the information, including the place where it was given, may not be disclosed except for the purposes of assisting the Centre to carry out its functions as stated under this Act.

(3)    A person who obstructs, hinders or threatens another person in the performance of their duties in terms of this Act or any regulation, order, notice, circular, determination or directive issued in terms of this Act commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.
 

PART 5
COMPLIANCE AND ENFORCEMENT OF ACT

Exhausting of other measures before penalties

51.    (1) For purposes of sections 54 and 55, the Centre must perform its functions and exercise its powers after consultation with the relevant supervisory body of an accountable or reporting institution.

(2) Despite the penalties provided for in terms of subsections 21(5), 22(6), 23(3), 24(3), 25(8), 26(4), 27(3), 31(3), 32(2), 33(5), 34(7), 35(12), 39(10), 40(3) and 43(5), the Centre or a supervisory body may, if the circumstances of the non-compliance so justifies, first exhaust measures provided for in terms of sections 54, 55, 56 and 60.

Appointment of inspectors

52.    (1)   The Director or the head of a supervisory, as the case may be, may appoint any person in the service of the Centre or supervisory body or any other suitable person as an inspector for the purposes of determining compliance with this Act or any regulation, notice, order, circular, determination or directive issued in terms of this Act.

(2)    The Director or the head of a supervisory may determine the remuneration to be paid to a person who is appointed in terms of subsection (1) that is not in the full-time service of the Centre or supervisory body.

(3)    The Director or the head of a supervisory body must issue an inspector appointed in subsection (1) with a certificate of appointment signed by the Director or the head of the supervisory body.

(4)    A certificate of appointment issued under subsection 3 must have -

(a)    the full name of the person so appointed;

(b)    his or her identity number;

(c)    his or her signature;

(d)    his or her photograph;

(e)    a description of the capacity in which he or she is appointed; and

(f)    the extent of his or her powers to inspect.

(5)    Where the head of a supervisory body is authorised by any other Act to appoint inspectors, he or she may extend the appointment and functions of inspectors under that Act to include the undertaking of inspections under this Act.

(6)    In undertaking inspections under this Act, an inspector whose appointment or functions have been extended under subsection (5), may, in addition to the functions imposed upon such inspector under the Act contemplated in subsection (5), perform any of the functions imposed in terms of this Act.
 

(7)    Any extended appointment contemplated in subsection (5) must be reflected in any certificate or appointment document issued by the head of the supervisory body to an inspector under the Act contemplated in that subsection.

(8)    When an inspector undertakes an inspection in terms of this Act, the inspector must -

(a)    be in possession of a certificate of appointment; and

(b)    on request, show that certificate to any person who is -

(i)    directly affected by the performance of the functions of the inspector; or

(ii)    is in charge of any premises to be inspected.

Inspections

53.    (1)   For the purposes of determining compliance with this Act or   any regulation, notice, order, circular, determination or directive issued in terms of this Act, an inspector may at any time and on notice, enter and inspect any premises at which the Centre the supervisory body or regulatory body reasonably believes the business of an accountable institution, reporting institution or other person to whom the provisions of this Act apply, is conducted.

(2)    An inspector, in conducting an inspection, may -

(a)    in writing direct a person to appear for questioning before the inspector on a date, time and place determined by the inspector;

(b)    order any person who has or had any document in his or her or its possession or under his or her or its control relating to the affairs of the accountable institution, reporting institution or person:

(i)    to produce that document; or

(ii)    to furnish the inspector at the place and in the manner determined by the inspector with information in respect of that document;

(c)    open any strong room, safe or other container, or order any person to open any strong room, safe or other container, in which the inspector suspects any document relevant to the inspection is kept;

(d)    use any computer system or equipment on the premises or require reasonable assistance from any person on the premises to use that computer system to -

(i)    access any data contained in or available on that computer system; and

(ii)    reproduce any document from data stored on that computer system;
 

(e)    examine or make extracts from or copy any document in the possession of an accountable institution, reporting institution or person and against the issue of a receipt, remove that document temporarily for that purpose; and

(f)    against the issue of a receipt, seize any document obtained in terms   of paragraphs (c) to (e) which in the opinion of the inspector may constitute evidence of non-compliance with a provision of this Act or any regulation, order, determination or directive issued in terms of this Act.

(3)    An accountable institution, reporting institution or other person to whom this Act applies, must without delay provide reasonable assistance to an inspector acting in terms of subsection (2).

(4)    An inspector may not disclose to any person not in the service of the Centre or supervisory body any information obtained in the performance of functions under this Act, accept-

(a)    for the purpose of enforcing compliance with this Act or any regulation, order, determination or directive issued in terms of this Act;

(b)    when required to do so by a court order ; or

(c)    if the Centre or supervisory body is satisfied that it is in the public interest to release such information.

(5)    A person who -

(a)    obstructs, hinders or threatens an inspector;

(b)    who fails to appear for questioning;

(c)    who gives false information to the inspector; or

(d)    who fails to comply with a reasonable request or order by an inspector in the performance of his or her duties or the exercise of his or her powers in terms of this Act,

commits an offence and is liable to a fine not exceeding N$10 million or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment.

Directives

54.    (1)   The Centre, after consultation with the relevant supervisory   body may by notice in the Gazette issue a directive to all institutions, or any category of institutions, or other category of persons to whom this Act applies, regarding the application of this Act.

(2)    The Centre or a supervisory body may in writing, over and above any directive contemplated in subsection (1), issue a directive to any accountable institution, category of accountable institutions, reporting institution, category of reporting institutions or other person to whom this Act applies , to -
 

(a)    provide the Centre or that supervisory body, as the case may be -

(i)    with the information, reports or statistical returns specified   in the directive, at the time or at the intervals specified in the directive; or

(ii)    with any document in its possession or custody or under its control, within the period specified in the directive;

(b)    cease or refrain from engaging in any act, omission or conduct in contravention of this Act;

(c)    perform acts necessary to remedy any non-compliance with this Act; or

(d)    perform acts necessary to meet obligations imposed by this Act.

(3)    The Centre or supervisory body may examine a document submitted to it in terms of subsection (2)(a)(ii) or make a copy thereof or part hereof.

(4)    The costs incurred in complying with a directive must be borne by the accountable institution, reporting institution or person concerned.

(5)    An accountable institution or a reporting institution or person that fails to comply with a directive issued in terms of this section commits an offence and is liable to a fine not exceeding N$10 million or, where the commission of the offence is attributable to a representative of the accountable or reporting institution, to such fine or imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment.

Enforceable undertakings and enforcement

55.    (1) The Director, after consultation with any relevant supervisory body, may accept any of the following undertakings from a person authorised to act on behalf of either an accountable or reporting institution -

(a)    a written undertaking that the accountable or reporting  institution will, in order to comply with this Act, its regulations, orders, notices, circulars, determinations or directives made in terms of this Acts, take specified action;

(b)    a written undertaking that the accountable or reporting institution will, in order to comply with this Act, or any regulations, orders, notices, circulars, determinations or directives issued in terms of this Act, refrain from taking specified action;

(c)    a written undertaking that the accountable or reporting institution will take specified action directed towards ensuring that the accountable or reporting institution does not contravene this Act, or any regulations, order, notice, circular, determination or directive issued in terms of this Act , or that it is unlikely for the accountable or reporting institution  to contravene this Act, or any regulations, order, notice, circular, determination or directive issued in terms of this Act, in the future.
 

(2)    The person may withdraw or vary the undertaking only with the consent of the Director.

(3)    The Director may, after consultation with any relevant supervisory body by written notice given to the person, cancel the undertaking.

(4)    The Director may publish a copy of the undertaking or make available to any interested person a copy of the undertaking.

(5)    The Director, before making available such undertaking, must delete information that the Director is satisfied is-

(a)    confidential information with commercial value; or

(b)    information that may not be released as it is against the public interest to do so; or

(c)    information that consists of personal details of an individual.

(6)    If the Director has reason to believe that any person who has given an undertaking in terms of this section has breached such undertaking, the Director may apply to the High Court for an order in terms of subsection (7).

(7)    If the High Court is satisfied that the person has breached the undertaking, the Court may make -

(a)    an order directing the person to comply with the undertaking;

(b)    an order directing the person to pay to the Fund, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c)    any other order the Court thinks appropriate.

Administrative sanctions

56.    (1) The Centre or a supervisory body may impose an administrative sanction referred to in subsection (3) on any accountable institution, reporting institution or other person to whom this Act applies when satisfied on available facts and information that the institution or person -

(a)    has failed to comply with a provision of this Act or any regulation, order, determination or directive issued in terms of this Act;

(b)    has failed to comply with a condition of a licence, registration, approval or authorisation issued or amended in accordance with this Act or any other law; or

(c)    has failed to comply with a directive issued in terms of section 54(1) or (2).

(2)    In determining an appropriate administrative sanction, the Centre or the supervisory body must consider the following factors -
 

(a)    the nature, duration, seriousness and extent of the relevant non- compliance;

(b)    whether the institution or person has previously failed to comply with any law;

(c)    any remedial steps taken by the institution or person to prevent a recurrence of the non-compliance;

(d)    any steps taken or to be taken against the institution or person by -

(i)    another supervisory body; or

(ii)    a voluntary association of which the institution or person is a member; and

(e)    any other relevant factor, including mitigating factors.

(3)    The Centre or a supervisory body after consultation with each other, and where applicable, after consultation with relevant regulatory body, may impose any one or more of the following administrative sanctions -

(a)    a caution not to repeat the conduct which led to the non-compliance referred to in subsection (1);

(b)    a reprimand;

(c)    a directive to take remedial action or to make specific arrangements;

(d)    the restriction or suspension of certain identified business activities;

(e)    suspension of licence to carry on business activities; or

(f)    a financial penalty, not exceeding N$10 million, as determined by the Centre, after consultation with the relevant supervisory or regulatory bodies.

(4)    The Centre or supervisory body may -

(a)    in addition to the imposition of an administrative sanction, make recommendations to the relevant institution or person in respect of compliance with this Act or any regulation, order, determination or directive issued in terms of this Act;

(b)    direct that a financial penalty must be paid by a natural person(s) for whose actions the relevant institution is accountable in law, if that person or persons was or were personally responsible for the non- compliance;

(c)    suspend any part of an administrative sanction on any condition the Centre or the supervisory body considers appropriate for a period not exceeding five years.
 

(5)    Before imposing an administrative sanction, the Centre or the supervisory body must give the institution or person reasonable notice in writing -

(a)    of the nature of the alleged non-compliance;

(b)    of the intention to impose an administrative sanction;

(c)    of the amount or particulars of the intended administrative sanction; and

(d)    advise that the institution or person may, in writing, within a period specified in the notice, make representations as to why the administrative sanction should not be imposed.

(6)    After considering any representations and the factors referred to in subsection (2), the Centre or the supervisory body, subject to subsection (8), may impose an administrative sanction the Centre or supervisory body considers appropriate.

(7)    Upon imposing the administrative sanction the Centre or supervisory body must, in writing, notify the institution or person of -

(a)    the decision and the reasons therefor; and

(b)    the right to appeal against the decision in accordance with section 58.

(8)    The Centre must, prior to taking a decision contemplated in subsection (6), consult the relevant regulator, where applicable.

(9)    Any financial penalty imposed must be paid into the bank account of the Fund, within the period and in the manner as may be specified in the relevant notice.

(10)    If the institution or person fails to pay the financial  penalty within  the specified period and an appeal has not been lodged within the required period,    the Centre or the supervisory body may forthwith file with the clerk or registrar of a competent court a certified copy of the notice contemplated in subsection (7) and the notice thereupon has the effect of a civil judgment lawfully given in that court in favour of the Centre or supervisory body.

(11)    An administrative sanction contemplated in this section may not be imposed if the respondent has been charged with a criminal offence in respect of the same set of facts.

(12)    If a court assesses the penalty to be imposed on a person convicted   of an offence in terms of this Act, the court may take into account any administrative sanction imposed under this section in respect of the same set of facts.

(13)    An administrative sanction imposed in terms of this Act does not constitute a previous conviction as contemplated in Chapter 27 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(14)    Unless the Director or the head of a supervisory body is of the opinion that there are exceptional circumstances present that justify the preservation of the
 

confidentiality of any decision, the Director or the head of the supervisory body must make public the decision and the nature of any sanction imposed if -

(a)    an institution or person does not appeal against a decision of the Centre or supervisory body within the required period; or

(b)    the appeal board confirms the decision of the Centre or supervisory body.

Appeal board

57.    (1) Upon receipt of a notice of appeal by an institution or person  made under section 58 against the decision of the Centre or a supervisory body, the Minister, on recommendation of the Council, must appoint an appeal board to hear and decide the appeal.

(2)    The Appeal board consists of -

(a)    one person who has a qualification in law and with at least 10 years’ experience, who is the chairperson; and

(b)    two other persons who have experience and extensive knowledge of financial institutions or financial services provision or financial services regulation.

(3)    The Minister may prescribe additional qualifications, terms and conditions and other requirements for appointment as members of the appeal board.

(4)    If before or during the consideration of any appeal it transpires that any member of the appeal board has any direct or indirect personal interest in the outcome of that appeal, the member must declare his or her interest and recuse himself or herself and must be replaced by another person.

(5)    A member of the appeal board may be paid such remuneration and allowances as the Minister may determine.

(6)    The Centre is responsible for the expenditure of and administrative support for the appeal board.

Appeals

58.    (1) Any institution or person may  appeal  to  the  appeal  board against a decision of the Centre or a supervisory body made in terms of this Act.

(2)    An appeal must be lodged within 30 days of the delivery of the decision of the Centre or a supervisory body, in the manner, and on payment of the fees prescribed by the Minister.

(3)    An appeal under subsection (1) takes place on the date, at the place and time determined by the appeal board.

(4)    An appeal is decided on the affidavits and supporting documents presented to the appeal board by the parties to the appeal.
 

(5)    Despite the provisions of subsection (4) the appeal board may -

(a)    summon any person who, in its opinion, may be able to give information for the purposes of deciding the appeal or who it believes has in his, her or its possession, custody or control any document which has any bearing upon the decision under appeal, to appear before it on a date, time and place specified in the summons, to be questioned or to produce any relevant document and retain for examination any document so produced;

(b)    administer an oath to or accept an affirmation from any person called as a witness at an appeal; and

(c)    call any person present at the appeal proceedings as a witness and interrogate such person and require such person to produce any document in his, her or its possession, custody or control.

(6)    The chairperson of the appeal board may determine any other procedural matters relating to an appeal.

(7)    An applicant or respondent to an appeal is entitled to be represented at an appeal by a legal practitioner or any person of his or her choice.

(8)    The appeal board may -

(a)    confirm, set aside or vary a decision of the Centre or supervisory body; or

(b)    refer a matter back for consideration or reconsideration by the Centre or the supervisory body concerned in accordance with the directions of the appeal board.

(9)    The decision of a majority of the members of the appeal board constitutes the decision of that Board.

(10)    The decision of the appeal board must be in writing, and a copy thereof must be made available to the appellant, the Centre and the supervisory body.

(11)    If the appeal board sets aside any decision of the Centre or supervisory body, the fees contemplated in subsection (2) paid by the appellant in respect of the appeal in question must be refunded to the appellant.

(12)    If the appeal board varies any such decision, it may direct that the whole or any part of such fees be refunded to the appellant.

(13)    Subject to subsection (14), a decision of the appeal board may be taken on appeal to the High Court as if it were a decision of a magistrate in a civil matter.

(14)    The launching of appeal proceedings in terms of subsection (13) does not suspend the operation or execution of a decision, unless the Centre or supervisory body directs otherwise.
 

Referral of suspected offences to competent authorities or Prosecutor-General or other public bodies

59.    Despite sections 54, 55 and 56, if the Centre in the performance of its functions has reasonable grounds to suspect that an accountable or reporting institution, or any other person who is subject to this Act, has contravened or failed to comply with any provision of this Act or any regulation, order, rule, circular, notice, directive, determination, undertaking or guideline applicable to that accountable or reporting institution or person, it may, if it considers it appropriate to do so, refer the matter to a relevant competent authority, together with any recommendation the Centre considers appropriate.

Application to court

60.    (1)  The Centre or any supervisory body,  after consultation with   each other, may institute proceedings in the High Court against any accountable institution, reporting institution or person to whom this Act applies, to -

(a)    discharge any obligation imposed by the Centre or supervisory body in terms of this Act;

(b)    compel the institution or person to comply with any provision of this Act;

(c)    cease contravening a provision or provisions of this Act;

(d)    compel the institution or person to comply with a directive issued by the Centre or supervisory body under this Act; or

(e)    obtain a declaratory order against the institution or person on any point of law relating to any provision of this Act or any regulation, order, notice, circular, determination or directive made in terms of this Act.

(2)    If the Centre or a supervisory body has reason to believe that an institution or person is not complying with this Act or any regulation, order, notice, circular, determination or directive made in terms of this Act, it may, if it appears that prejudice has occurred or might occur as a result of such non-compliance, apply to a court having jurisdiction for -

(a)    an order restraining the institution or person from continuing business pending an application to court by the Centre or supervisory body as contemplated in subsection (1); or

(b)    any other order the Court may think appropriate.

(3)    If an accountable or reporting institution or person, to whom this Act applies, fails to comply with an order of court as contemplated in subsection (1), the Centre or supervisory body may, after consultation with each other, refer the matter for investigation or prosecution as contemplated in section 59.
 

Powers of authorised officers

61.    (1) Where an authorised officer is satisfied, or  has  reason  to  suspect, that a person has committed an offence under this Act or the Prevention of Organized Crime Act, he or she may, without a search warrant -

(a)    enter any premises belonging to or in the possession or control of the person or his or her employee, and in the case of a body corporate, its director or manager;

(b)    search the premises for any property, electronic information and devices, record, report or document;

(c)    inspect, make copies of or take extracts from any record, report or document so seized and detained;

(d)    seize, take possession of, and detain for such duration as he or she thinks necessary, any property, electronic information and devices, record, report or document produced before him or her in the course of the investigation of or found on the person who is being searched by him or her.

(2)    An authorized officer in the course of his or her investigation or search
must -

(a)    prepare and sign a list of every property, electronic information and devices, record, report or document seized; and

(b)    state in the list the location in which, or the person on whom, the property, record, report or document is found.

(3)    When conducting his or her duties in terms of this section an authorised officer may call on any other authorised officer or competent authority to assist him or her.

(4)    Any person who -

(a)    refuses any authorized officer access to any premises, or fails to submit to the search of his or her person;

(b)    assaults, obstructs, hinders or delays an authorized officer in effecting any entrance which he or she is entitled to effect;

(c)    fails to comply with any lawful demands of any authorized officer in the execution of his or her duties under this Act;

(d)    refuses to give to an authorized officer any property, document or information which may reasonably be required of him or her and which he has in his power to give;

(e)    fails to produce to, or conceal or attempt to conceal from, an authorised officer, any property, record, report or document, which the authorized officer requires;
 

(f)    rescues or attempts to rescue anything which has been seized;

(g)    furnishes to an authorised officer as true any information which he or she knows or has reason to believe is false; or

(h)    before or after any search or seizure, breaks or otherwise destroys anything to prevent its seizure, or the securing of the property, record, report or document,

commits an offence and is liable to a fine not exceeding N$10 million or to imprisonment for a term not exceeding 10 years, or to both such fine and such imprisonment, and in a case of a continuing offence, to a further fine not exceeding N$50 000 for each day during which the offence continues after conviction.

(5)    An authorized officer may, by a notice in writing require any person  to deliver to him or her any property, record, report or document which he or she has reason to suspect has been used in the commission of an offence under this Act or is able to assist in the investigation of an offence under this Act that is in the possession or custody of, or under the control of, that person or within the power of that person to furnish.

Release of property, record, report or document seized

62.    (1)    An authorized officer, unless otherwise ordered by a court,
must -

(a)    at the close of an investigation or any proceedings arising from the investigation; or

(b)    with the prior written consent of the Centre or investigating authority, at any time before the close of an investigation,

release any property, record, report or document seized, detained or removed by him or her or any other authorized officer, to such person as he or she determines to be lawfully entitled to the property, record, or document if he or she is satisfied that it is not required for the purpose of any prosecution, freezing or forfeiture of proceeds of crime or property of corresponding value under the Prevention of Organized Crime Act, 2004, or proceedings under this Act, or for the purpose of any prosecution under any other law.

(2)    An authorised officer effecting the release under subsection (1) must record in writing the circumstances of and the reason for such release.

(3)    Where the authorized officer is unable to determine the person who   is lawfully entitled to the property, record, report or document or where there is more than one claimant to the property, record, report or document, or where the authorised officer is unable to locate the person under subsection (1) who is lawfully entitled to the property, record or document, the authorised officer must report the matter to a magistrate who must then deal with the property, record, report or document in terms of the relevant law dealing with such matters.
 

PART 6 OFFENCES AND PENALTIES

Offences in general

63.    A person who -

(a)    knowing or suspecting information  is  held  by  the  Centre  directly or indirectly brings,  otherwise  than  in  the  course  of  discharging  an obligation under this Act, that information or the fact that that information is held to the attention of another person;

(b)    destroys or in any other way tampers with information kept by the Centre for the purposes of this Act;

(c)    knowing or suspecting that information has been disclosed to the Centre, directly or indirectly brings information which is likely to prejudice an investigation resulting from that disclosure to the attention of another person;

(d)    unduly influences,  obstructs,  hinders,  interferes  with  or  threatens or attempts to unduly influence, obstruct, hinders, interferes with or threaten an official or representative of the Centre in the performance of their duties or the exercise of their powers in terms of this Act;

(e)    with intent to defraud, in respect of a document to be produced or submitted under any provision of this Act, makes or causes to be made a false entry or omits to make, or causes to be omitted any entry;

(f)    fails to comply with the provisions of any regulation, guideline, circular, notice, directive, determination or undertaking issued in terms of this Act,

commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or to both such fine and such imprisonment.

Jurisdiction of magistrates’ courts in respect of offences

64.    (1) Despite anything to the contrary in any other law contained, a magistrate’s court has jurisdiction to impose any penalty provided for in this Act, even though that penalty may, either alone or together with any additional penalty imposed by that court, exceed the punitive jurisdiction of that court.

(2)    Where an act, course of conduct or omission which constitutes an offence under this Act is or was -

(a)    done by a national of Namibia within Namibia or elsewhere;

(b)    done by any person on a vehicle, ship or other seafaring vessel or aircraft traveling through Namibia, putting into port in Namibia or landing on a landing strip or airport in Namibia; or
 

(c)    done by a person outside Namibia and other acts, courses of conduct or omissions forming part of the offence are done or to be done in Namibia;

(d)    done by any person outside Namibia and the effects of the offence are felt in Namibia,

the person concerned may, regardless of anything in any law to the contrary, but subject to this Act, be tried and punished by any court which has jurisdiction over criminal matters in Namibia.

Offence committed by person acting in official capacity

65.    (1) Where an offence is committed by a legal person, trust or an association of persons, a person -

(a)    who is its director, controller, or partner; or

(b)    who is responsible for the management of its affairs,

at the time of the commission of the offence, is deemed to have committed that offence unless that person proves that the offence was committed without his or her consent or connivance and that he or she exercised such diligence to prevent the commission of the offence as he or she ought to have exercised, having regard to the nature of his or her function in that capacity and to the circumstances.

(2)    Despite the fact that a legal person, trust or association of persons has not been convicted of an offence under subsection (1), an individual may be prosecuted for that offence.

(3)    Subsection (1) does not affect the criminal liability of the legal person, trust or association of persons for the offence referred to in that subsection.

(4)    Any person who would have committed an offence if any act had  been done or omitted to be done by him or her personally commits that offence and is liable to the same penalty if that act had been done or omitted to be done by his or her agent or officer in the course of that agent’s business or in the course of that officer’s employment, unless he or she proves that the offence was committed without his or her knowledge or consent and that he or she took all reasonable precautions to prevent the doing of, or omission to do that act.

PART 7 MISCELLANEOUS
Act not to limit powers of investigation authorities

66.    This Act does not affect a competent authority’s powers in terms of other legislation to obtain information for the purpose of criminal investigations.
 

Regulations

67.    (1)    The Minister, after consulting the Council and the Centre, may make regulations concerning -

(a)    any matter that may be prescribed in terms of this Act;

(b)    measures to ensure the security of information disclosed to and obtained by the Centre;

(c)    the recognition and handling by accountable or reporting institutions of suspected money laundering or financing of terrorism transactions;

(d)    internal rules to be formulated and implemented in terms of section 39;

(e)    the manner and form in which accountable or reporting institutions are to keep records required by this Act;

(f)    the reasonable steps to be taken by an accountable or reporting institution to establish the identity of an existing client or prospective client; and

(g)    the procedures to be followed when cash or bearer negotiable instruments are forfeited to the State in terms of subsection 36(7); and

(h)    any other matter which may facilitate the implementation of this Act.

(2)    Regulations in terms of subsection (1) may -

(a)    differ for different accountable or reporting institutions, categories    of accountable or reporting institutions and different categories of transactions; and

(b)    be limited to a particular accountable or reporting institution or category of accountable or reporting institutions or a particular category of transactions.

(3)    A regulation made under this section may provide for -

(a)    criminal penalties of a fine not exceeding N$10 million or imprisonment for a period not exceeding five years, or of both such fine and such imprisonment for any contravention of or failure to comply with such regulation; or

(b)    administrative penalties of a fine not exceeding N$10 million.

Indemnity

68.    The Minister, Council, Centre, an employee or representative of the Centre, a supervisory body or any other person performing a function or exercising a power in terms of this Act is not liable for anything done in good faith in terms of this Act.
 

Service of notices

69.    Any notice, statement or other document which is required to be prepared, executed or served under this Act must be prepared, executed or served in the prescribed manner.

Exemptions

70.    (1)     The Minister  may,  on the recommendation of the Council, if  he or she considers it consistent with this Act or in the interest of the public, by order published in the Gazette, exempt a person or class of persons from all or any of the provisions of this Act for such duration and subject to any conditions which the Minister may specify.

(2)      The Minister may,  after having granted an exemption as referred to     in subsection (1), and on recommendation of the Council, by order in the Gazette, withdraw such an exemption.

Documents tracking

71.    (1)     Where the Centre or any other competent authority has reason to believe that a person is committing or is about to commit an offence under this Act, the Centre or the competent authority may order -

(a)    that any document relevant to identifying, locating or quantifying any property necessary for the transfer of the property, belonging to, or in the possession or under the control of that person or any other person, be delivered to it; or

(b)    any person to produce information on any transaction conducted by or for that person with the first-mentioned person.

(2) Any person who does not comply with an order under subsection (1) commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a period not exceeding, or to both such fine and such imprisonment.

Repeal of laws

72.    The Financial Intelligence Act, 2007 (Act No. 3 of 2007), and Government Notice No. 235 of 15 December 2011 are repealed.

Transitional provisions and savings

73.    (1) With effect from the date of commencement of this Act the  current Director and staff of the Centre are deemed to have been appointed in accordance with this Act and on such conditions of service as applied to them at that date.

(2)     Any regulation made or any exemption, notice, circular, determination or guidance issued or any other thing done under the Act repealed by section 72 is deemed to have been made, issued or done under the corresponding provision of this Act.
 

Short title and commencement

74.    (1) This Act is called the Financial Intelligence Act, 2012 and commences on a date determined by the Minister by notice in the Gazette.

(2)    Different dates may be determined under subsection (1) in respect of different provisions of this Act.

(3)    Any reference in any provision of this Act to the commencement of this Act is construed as a reference to the date determined under subsection (1) in relation to that particular provision.
 

SCHEDULE 1

ACCOUNTABLE INSTITUTIONS
(Section 2)

1.    A person in his or her capacity as either a legal practitioner as defined in       the Legal Practitioners Act, 1995 (Act No.15 of 1995) and who is in private practice, or an estate agent as defined in the Estate Agents Act, 1976 (Act No. 112 of 1976), or an Accountant or Auditor, or in any other capacity, who accepts instructions from a client to prepare for or carry out a transaction for the client in respect of one or more of the following activities:

(a)    Buying and selling of real estate for cash or otherwise;

(b)    Managing of client money, securities, bank or securities accounts or other assets;

(c)    Facilitating or sourcing contributions for the creation, operation or management of legal persons or arrangements;

(d)    Creation, operation or management of legal persons or legal and commercial arrangements;

(e)    Buying and selling of business entities, or parts thereof; and

(f)    Buying and selling of legal rights.

2.    Any other person or entity that, as part of their normal business activities, buys and/or sells real estate for cash.

3.    Trust and Company Service Providers when they prepare for and carry out transactions for their client in relation to the following activities -

(a)    acting as a formation agent of legal persons;

(b)    acting as (or arranging for another person to act as) a director or secretary of a company, a partner of a partnership, or a similar position in relation to other legal persons;

(c)    providing a registered office; business address or office accommodation, correspondence or administrative address for a company, a partnership or any other legal person or legal or commercial arrangement;

(d)    acting as (or arranging for another person to act as) a trustee of a trust; and

(e)    acting as (or arranging for another person to act as) a nominee shareholder for another person.

4.    A person or institution that carries on “banking business” or who is “receiving funds from the public” as defined in section 1 of the Banking Institutions Act, 1998 (Act No. 2 of 1998).
 

5.    A person that carries on the business of a casino.

6.    A person or entity that carries on the business of lending, including but not limited to the following:

(a)    The Agricultural Bank of Namibia established in terms of the Agricultural Bank of Namibia Act, 2003 (Act No.5 of 2003);

(b)    The Development Bank of Namibia established in terms of the Development Bank of Namibia Act, 2002 (Act 8 of 2002);

(c)    The National Housing Enterprise established in terms of the National Housing Enterprise Act, 1993 (Act No.5 of 1993).

7.    A person who carries on the business of trading in minerals specified in Schedule 1 of the Minerals (Prospecting and Mining) Act, 1992 (Act No. 33 of 1992) or petroleum as defined in section 1 of the Petroleum (Exploration and Production) Act, 1991 (Act No. 2 of 1991).

8.    Any person or entity trading in the following -

(a)    money market instruments;

(b)    foreign exchange;

(c)    currency exchange;

(d)    exchange, interest rate and index instruments;

(e)    transferable securities;

(f)    commodity futures trading; and

(g)    any other securities services.

9.    A person who carries on the business of rendering investment advice or investment brokering services.

10.    Namibia Post Limited established by section 2(1) (a) of the Posts and Telecommunications Companies Establishment Act, 1992.

11.    A person, who issues, sells or redeems traveller’s cheques, money orders, or similar payment instruments.

12.    A member of a stock exchange licensed under the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985).

13.    Any person or entity that carries on the business of electronic transfer of money or value.

14.    Any person or entity regulated by the Namibia Financial Institutions Supervisory Authority (NAMFISA) who conducts as a business one or more of the following activities -
 

(a)    Individual and/or Collective portfolio management;

(b)    Long term insurer;

(c)    Micro lender;

(d)    Friendly society; and

(e)    Unit trust managers.

15.    A person who conducts or carries on the business of an auctioneer.

16.    A person or entity that carries on the business of lending money against the security of securities.
 

SCHEDULE 2

SUPERVISORY BODIES
(Section 3)

1.    The Namibia Financial Institutions Supervisory Authority established in terms of the Namibia Financial Institutions Supervisory Authority Act, 2001 (Act No. 3 of 2001).
 

SCHEDULE 3

REPORTING INSTITUTIONS
(Section 2)

1.    A person or institution that carries on the business of a motor vehicle dealership.

2.    A person that carries on the business of second hand goods.

3.    A person that carries on the business of a gambling house, a totalisator or bookmaker.

4.    A person or entity that carries on the business of trading in jewellery, antiques or art.

5.    Any person or entity regulated by the Namibia Financial Institutions Supervisory Authority (NAMFISA) who conducts as a business one or more of the following activities -

(a)    Short term insurer.
 

SCHEDULE 4

REGULATORY BODIES
(Section 3)

1.    The Bank of Namibia as defined in the Bank of Namibia Act, 1997 (Act No. 15 of 1997) to the extent that the Bank exercises its powers and fulfils its regulatory functions under the Banking Institutions Act, 1998 (Act No. 2 of 1998)as amended, the Currency and Exchanges Act, 1933 (Act No.9 of 1933), the Prevention of Counterfeiting of Currency Act, 1965 (Act No. 16 of 1965), and the Payment System Management Act, 2003 (Act No. 18 of 2003).

2.    The Law Society established in terms of the Legal Practitioners Act, 1995 (Act No. 15 of 1995).

3.    The Estate Agents Board established in terms of the Estate Agents Act, 1976 (Act No. 112 of 1976).

4.    The Public Accountants’ and Auditors’ Board established in terms of the Public Accountants’ and Auditors’ Act, 1951 (Act No. 51 of 1951).

5.    The Namibia Stock Exchange established in terms of the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985).

6.    The Casino Board established by the Casinos and Gabling Houses Act, 1994 (Act No. 32 of 1994).

Code of Banking Practice in Namibia

The Code of Banking
Practice in Namibia
 
BANKERS
ASSOCIATION  OF
 
NAMIBIA

and


Guidelines for Lodging Customer Complaints


 

 


 

Contents
1.    Introduction
2.    Objectives
3.    Fundamental Principles of our Relationship
4.    Conduct
5.    Access to Banking Services
6.    Disclosure
6.1    Terms and Conditions
6.2    General Banking Products and Services
6.3    Charges and Fees
7.    Information
8.    Confidentiality and Privacy
9.    Marketing and Advertising
10.    Equal Treatment
11.    Provision of Credit
12.    Suretyships
13.    Mortgage Loans
14.    Vehicle Finance
15.    Overdraft Facilities
16.    Set-Off
17.    Foreign Exchange Services
18.    Financial Difficulties
19.    Accounts
19.1    Opening an account
19.2    Account operation
19.3    Cards, Pins, Passwords and other unique means of personal identification
19.4    Reasonable care
19.5    Internet & Cell phone banking
19.6    Statements
19.7    Cheques
19.8    Responsibility for Losses
19.9    Closure of accounts
19.10    Switching a transaction account to a new bank
20.    Debit orders
21.    What we expect from you
22.    Dispute Resolution
22.1    Internal dispute resolution
23.    Review of the Code
24.    Useful Definitions
25.    Contact Details
 

1.    Introduction
The Code of Banking Practice (‘the Code’) is a voluntary code which sets standards of good banking practice for financial institutions to follow when dealing with customers.

It should assist you to understand how we as your bank should relate to you. The Code will be a guide for you when you transact with your bank and it will help you better understand your rights and responsibilities as well as your bank’s responsibilities in serving you. We want to establish good relationships with you and we want to promote good banking practice by formalizing standards of disclosure and conduct which we will observe when dealing with you. We commit ourselves to maintain the relevant standards of fairness and accountability set out in this Code. In addition, we are also committed to the highest standards of ethical behavior as contained in our respective Codes of Ethics. Copies of the Code are available from The Bankers Association of Namibia. You can also view the Code on your respective bank’s website.

References in the Code to “you” means the client and “we”, “our” and “us” refer to the client’s bank. Useful definitions are listed on page 18.
2.    Objectives
The Code has been developed to:
•    promote good banking practices by setting minimum standards for your bank when dealing with you;
•    increase transparency so that you can have a better understanding of what you can reasonably expect from the products and services;
•    promote a fair and open relationship between you and your bank and;
•    foster confidence in the banking system.
•    speedy and effective handling and resolution of complaints
3.    Fundamental Principles of Our Relationship
We, the members of the Bankers Association undertake to:
3.1    Act fairly and reasonably in all our dealings with you, by meeting all the commitments and standards in this Code;
3.2    Continuously work towards improving the standards of practice, service and effective access to appropriate
financial services in the banking industry;
3.3    Promote better informed decisions about our banking products and services by:
•    providing effective and adequate disclosure of information and encouraging customers to familiarise themselves with the terms and conditions relating to financial services and abide with same;
•    explaining to you, when asked, the contents of brochures and other written information about banking services or products;
•    providing information, or where applicable, advice, about banking services or products at your request, through our staff, authorized and trained to give such advice. You can approach your bank to obtain summaries of transactions on your account and pricing of same;
3.4    Provide information to you in plain and understandable language, using standardized terminology, offer assistance on any aspect which you do not understand, verbally explain written information and brochure content in a vernacular language of your choice in cases where you are unable to understand.
3.5    Ensure that all products and services comply with relevant laws, regulations and the standards set out in this
Code; and
3.6    Provide reliable banking and payment systems services and take reasonable care to make these services safe
and secure; similarly you are required to take due and proper care.
3.7    Advise you of your rights including waivers of rights.
3.8    Put adequate measures in place to detect aggressive or abusive treatment of consumers by bank’s staff and / or their agents, particularly during the loan sales and debt collection processes.

We are committed to providing you with the highest standards of service.


Page    2
 

In order to meet our commitment, we will ensure that:
3.9    Our staff are trained to provide friendly and efficient service, so that your transactions, enquiries and feedback
will be attended to promptly;
3.10    Information on our products and services will be updated and current. It will be made easily available at bank
branches, through your bank’s website and through other appropriate channels;
3.11    unless longer periods are specified by applicable legislation and its within our reasonable control, you will be informed at least one month in advance before any changes are implemented to Terms and Conditions, fees and charges, the discontinuation of products and services and the relocation of premises or ATMs; and
3.12    Your complaint to your bank will be acknowledged within 5 business days of receipt and will be investigated within 15 (fifteen) business days. Clients are urged to utilize the complaints management system and process of their banks. This information can be obtained from your bank.
4.    Conduct
Certain principles regarding our conduct as your bank, and your conduct as our client, are at the core of our relationship. We are committed to exercise care, skill and diligence in our provision of services to you as well as any other duty owed to you to exercise the degree of skill, care and diligence that may reasonably be expected of us in the provision of a financial service.
5.    Access to banking services
•    We are committed to providing affordable and accessible basic banking services to all Namibians.
•    We will provide you with a basic banking account, if you meet our minimum requirements. Your bank will be able to provide you with the conditions and details of such accounts, and you should make every effort to read and understand them.
•    We will continuously strive to improve our basic banking services through product innovation.
•    We recognize the banking needs of customers with disabilities, the elderly and the infirm as well as taking reasonable measures to enhance their access to those services and facilities. We are also committed to improving access to our services as far as possible through our extensive branch network, ATMs or electronic banking centres and other appropriate channels.
•    In order to ensure continued access to our services, we undertake to give you reasonable prior notice of our intention to close any of our bank branches, outlets or ATM/electronic banking centres, so that you can make the necessary arrangements, with our assistance, to move your accounts to another branch (if applicable) or to access them through alternative means and channels.
6.    Disclosure
We undertake to disclose relevant issues to you as our client (or potential client).

What we undertake to disclose to you are:
6.1    Terms and Conditions
We will ensure that all our written Terms and Conditions are fair, lawful and will clearly set out your rights and responsibilities in respect of a product or service in plain language.

We will use legal and technical language only where necessary. Where legal and technical language is used, we will explain what we mean whenever contract terms are discussed Before you enter into an agreement, we will draw to your attention any limitation of liability, exclusion, indemnity or assumption of risk as set out in the Terms and Conditions. Our Terms and Conditions are provided at the time of, or before a contract for an ongoing banking service is concluded, except where it is impracticable to do so, in which case it will be provided as soon as practicable afterwards as well as during the course of the agreement upon request. You will also be provided with a separate copy of the Terms and Conditions for future reference. Our staff is available to give you further clarification and to answer any queries that you may have about the Terms and Conditions. You will not be required to sign more general waivers that eliminate all rights to privacy.


Page    3
 

When the Terms and Conditions of your product or service change, we will inform you that you are entitled to terminate the product or service or switch to another product or service if you do not wish to accept the variation in the Terms and Conditions the consequences thereof will be explained to you.

6.2    General banking products and services
When you become a client and on reasonable request, we will make available to you:
•    Clear written information explaining the key features of our services and products in which you may express an interest;
•    Clear and appropriate information on the different types of products and accounts available from us to assist you to make an informed choice appropriate to your needs;
•    Clear information on charges and fees associated with a particular product or service rendered.
•    Recommended safety measures and tips on our services and products in which you may express an interest.

Information on how your account works, including:
•    When you can withdraw funds after a deposit has been paid into your account and when funds begin to earn interest;
•    The various methods of issuing a cheque;
•    Stopping a cheque or other types of payment;
•    How we will treat a post-dated cheque deposited into your account;
•    The difference between and the implications of bank guaranteed cheques and bank cheques, where appropriate;
•    The effect of unpaid cheques and other payment instruments on your account including the instances where we may credit your account with the value of a cheque for which we might not have received value ourselves;
•    The limit on cheques issued as determined by regulation
•    Special clearance and the effect(s) it may have on your account;
•    How a cheque can become a stale cheque and the effect of this;
•    How debit orders and stop orders work, the difference between the two and how to stop and/or cancel them;
•    Information on electronic banking services including the special requirements which we expect of you if you bank electronically;
•    The different functions of any card(s) issued to you;
•    When your account details may be passed on to credit risk management services as well as the implications thereof;
•    Any special procedures or safeguards required of you to ensure safer banking.

6.3    Charges and Fees
•    In terms of the Determination on the Disclosure of Bank Charges, Fees and Commissions (BID 13), bank charges shall be displayed in a visible place and manner in each banking chamber and shall be made accessible to walk-in banking customers in a convenient manner that avoids the need to queue up at bank counters to access such information.
•    We will provide you with information on relevant fees and charges for the service or product that you have
chosen – full details of charges for any service or product are available on request.
•    We will speedily, efficiently and fairly correct errors in any charge or price levied on, or quoted to you, in
respect of any product or service and compensate you where appropriate.
•    Where we consider that there may have been a material pricing error, we will without delay, inform you of
our proposals for correcting any such error.
•    We will furthermore notify all affected customers, current and former, in a timely manner of any material
charging or pricing error that impacted negatively on the cost of the service or value of the product provided.
•    We will inform you of changes to charges for basic banking services, after reasonable prior notice, by two
or more of the following methods:
•    letter/statement messages/other personal notice;
•    notices/leaflets in branches;
•    ATM/ electronic banking system messages;

Page    4
 

•    media advertisements;
•    Internet Banking;
•    e-mail messages;
•    telephonic announcements (through short message services [sms]); or
•    announcements on your bank’s website.

We will also provide information on any additional charges and interest you may have to pay on overdrafts and fixed term products when:
•    your account becomes overdrawn without prior agreement;
•    you exceed your overdraft limit;
•    your loan falls into arrears;
•    you decide to settle a loan early; or
•    you make an early withdrawal or early cancellation.
•    and when a debit order is returned.

We will also provide information on the interest charges which apply to your account(s), including:
•    when interest will be deducted from or paid to you;
•    the basis on which interest is calculated;
•    when changes (increases or decreases) are made to the interest rates which apply to your account(s). We
will communicate any increase in the mortgage rate/prime rate directly to you.
7.    Information
We will provide you with:
•    Information regarding your rights to access your personal information held by us;
•    Information regarding what identification and verification documents (which we may verify) we need to prove your identity when you interact and transact with us. To enable us to continuously transact with you, we may also require you to update your identification and verification documentation on a regular basis, including when there is a change in your circumstances (e.g. Change of name upon marriage, change of residential address or change in the Company /Close Corporation details). This includes when you first apply to open    an account and during our relationship with you, when you obtain a loan or other credit facility or when you conclude other transactions, which is important for your security and may be required by law; and which, if not provided, could result in your account(s) being blocked from transacting with your Bank.
•    Information upon your request on what checks we may carry out with credit risk management services and
related services, and other appropriate parties, for example employers, other lenders and landlords.
•    If its within our reasonable control, you will be informed at least one month in advance of our intention to close any of our bank branches, outlets or ATM/ electronic banking centres; and
•    advertising and promotional material, which is clear, fair, reasonable, not misleading and complies with your
bank’s advertising guidelines .
8.    Confidentiality and Privacy
We will treat all your personal information as private and confidential and in terms of section 64 of the Banking Institutions Act, 1998 (as amended), we will not disclose any personal information about you or your accounts, including to other companies in our Group (even when you are no longer a client) unless under the following specific circumstances:
•    Where we are legally compelled or permitted to do so;
•    Where disclosure is made at your request or with your consent. If you make use of electronic banking facilities like cellphone banking, and the telephone calls are recorded, consent to disclosure might be recorded verbally; te of t
•    If the estate of the customer has been sequestrated, whether provisionally or final, or if the customer is a body corporate, the body corporate has been, or is in the process of being wound up;
•    If information is required by a party to a bona fide commercial transaction to which transaction the customer is a party, for the purpose of, assessing the creditworthiness of the customer relating to such transaction; (however

Page    5
 

the information furnished shall be of a general nature and shall not enable the details of the customer’s affairs
or account to be ascertained from the information so furnished);
•    for the purpose of instituting, or in the course of, any criminal proceedings;
•    for the purpose of instituting or in the course of any proceedings-
(i)    between a banking institution and its customer, or his or her surety relating to the customer’s transaction
with the banking institution; or
(ii)    between the banking institution and two or more parties making opposing or adverse claims to money in
a customer’s account, if the banking institution seeks relief by way of inter-pleader proceedings;
•    writ of attachment or of execution attaching monies in an account of a customer of a banking institution is served on the banking institution;
•    disclosure may, in terms of any law be made to a police officer investigating an offence specified in such law; (however such disclosure shall be limited to the affairs or account of the customer suspected of such offence);
•        if the exchange of individual customers’ information takes place within a banking institution between directors, officers or employees of that banking institution and which is necessary to facilitate the day-to-day banking business.
•    if the disclosure is authorised by Bank of Namibia;

If your account is in default, with your written consent obtained at the time of the disclosure, or otherwise permitted by law, we may disclose information about your personal debts and/or the manner in which you conduct your accounts to credit risk management services and/or debt collection agencies if:
•    You have fallen behind with your payments or you are in default with the terms of a product or service,
•    You  have not made satisfactory proposals to us for repayment of your debt following formal demand and you  have been given at least 20 business days’ notice of our intention to disclose; Disclosure without any consent         is permitted where we have obtained judgment against you in a court of law for repayment of the debt.

Before transferring your information to any third party service providers, we will take reasonable steps to satisfy ourselves that such information is correct and would be treated as private and confidential and is adequately safeguarded by the service providers. We will inform you when we record your telephone conversations with us and our reasons for doing so. If you make use of electronic banking facilities like telephone banking, and the telephone calls are recorded, your consent to disclosure might be recorded verbally.
9.    Marketing and Advertising
We will ensure that all advertising and promotional material is clear, fair, reasonable and not misleading.
Unless you have opted out, your bank may with your consent, use your information for marketing and advertising purposes. Examples of information which can be used for this purpose include the following: your name, your postal address, your email address and contact phone number. You may opt out from receiving such communication at any time.

Your bank will give you information on how to exercise your right to opt out. Unless you have opted out we may:
i)    Bring to your attention details of our services and products, which may be of interest to you;
ii)    Give certain information about you to other subsidiaries within our group for marketing purposes;
iii)    Inform you about another company’s services or products and that you may be contacted directly by that company, if you respond positively.
10.    Equal Treatment
We will act in a manner that does not discriminate unfairly against any customer on grounds such as marital status, gender, age or race in the provision of banking services and in the quality and terms of services provided. We may, however, have certain special product or service offerings, which are specifically designed for members of a target market group, for example products aimed at previously unbanked Namibians and low income earners such as a basic bank account. We may also apply commercially acceptable reasons for declining to offer you certain products or services and we will provide you with reasons for any decision if you request it.


Page    6
 

11.    Provision of Credit
11.1    We will extend credit to you responsibly (based on the information you supply to us), to match your borrowing requirements and capabilities and supply you with suitable products, in an attempt to ensure that you are  not extended beyond your financial means.   You  are  also responsible for ensuring that    you do not extend yourself beyond your financial means. Our ability to do so is  heavily dependent on  your co-operation and the full disclosure of your financial obligations. You must provide complete and accurate information to your bank as part of the credit application process. All lending will be subject to an assessment of your ability to afford and willingness to repay, general desirability and any other conditions set by your bank.

Before extending credit we will conduct an assessment which may include:
•    Taking into account your income and expenses, including the dependability of your income;
•    How you handled your financial affairs in the past;
•    Information obtained from credit risk management services and related services, and other appropriate parties, for example, employers, other lenders and landlords;
•    How you have conducted your previous and existing accounts with us;
•    Information supplied by you, including verification of your identity and the purpose of the borrowing;
•    Credit assessment techniques, for example, credit scoring;
•    Your age in relation to the loan facility required;
•    Any security or collateral provided; or
•    Your statement of assets and liabilities.

We will provide you with the costs and Terms and Conditions of the credit you applied for, prior to signing the credit agreement.

11.2    If we decline your application for credit we will inform you of the reasons for this, which may include (if applicable):
•    The overall credit score;
•    Information obtained from credit risk management services;
•    Over-indebtedness; or
•    A specific policy of the bank.

With automated credit scoring systems these reasons may not be explicit, in which case only general reasons shall be provided.
12.    Suretyships
Suretyships may have serious implications; therefore we will ensure that the surety receives proper information. This may be when you provide surety for someone or when someone provides surety for you. If you want us to accept a suretyship or other security from someone for your loans, we will inform you and the surety or the surety’s legal adviser that the surety is entitled by law to your confidential financial information.

We will:
•    Encourage the surety to take independent legal advice to make sure that they understand the commitment and
the potential consequences of such a decision.
•    Ensure All the documents the surety will be asked to sign will contain this recommendation as a clear and prominent notice;
•    Advise and caution the surety that by giving the suretyship or other security they may become liable instead of,    or as well as, yourself;
•    Advise the surety whether it is a limited (and the maximum value) or unlimited suretyship and explain the implications of an unlimited suretyship; and
•    Inform the parties of the implications of suretyships in terms of their periods of validity, the potential amount/s


Page    7
 

of indebtedness, the nature of the debt covered and the cancellation/termination process. We shall notify the
surety in writing of any change to the terms of the loan agreement; and
•    That s/he is entitled by law to request statement information relating to the credit agreement and that the
surety is entitled to settle the credit agreement at any time as the principal debtor.
13.    Mortgage Loans
13.1    Buying a property with a mortgage loan, may be your most important financial commitment, therefore: When you apply for a mortgage loan, and on reasonable request, we will explain to you the following:
•    Operation and repayment of your loan, including all the charges and costs, the benefits of payment acceleration
and the additional interest and costs payable should your account fall into arrears;
•    We will assist you to understand the wider responsibilities and rights that you will have as a property owner, and assist you with a detailed affordability assessment should you require it. This could include informing  you about the repayments on your loan and additional costs that apply to homeownership, such as rates and taxes;
•        We will clearly explain what the potential impact of variable versus fixed interest rates will be so that you can make an informed decision in this regard;
•    We will explain to you that you risk the possibility of losing your property should you not keep up your loan repayments; and
•        We will also explain the steps required by law should we have to act to repossess your property due to your failure to meet your repayment obligations or your failure to comply with any other terms and conditions of the contract.
•    As financiers we have neither the skills nor the resources to monitor or control the quality of the property you are building or buying. We will clearly inform you that our appraisal is solely to enable us to assess the value of the security to us. It is not intended to be an evaluation of the present or future market value of the property, nor does it have to be the same as the purchase price. We do not necessarily inspect the property and do not accept any responsibility or liability for the structural or other condition of the property, even if the loan is a development or building loan. All costs incurred for valuations done as required by Bank of Namibia Determination BIG 1 will be for the client’s account, these include:
-    valuation of existing residential property for a new loan;
-    valuation of new residential property;
-    taking over a loan from one bank by another;
-    valuation of property financed by two or more banks;
-    valuation of property at disposal.
-    We will explain to you the need to be careful when signing building progress payment documents.
-    We will ensure that you are clearly informed of the different types of insurance, whether the bank requires insurance to be taken out, whose responsibility it is to arrange for the insurance and what insurance cover        is available.
-    Issues of home quality are the responsibility of the seller (or  builder or  developer) and  yourself as  buyer. You must satisfy yourself  to  the  best  of  your  ability  that  you  are  buying  a  sound  property and if necessary obtain assurance as to the structural quality of the property, compliance with local authority requirements and replacement costs of the buildings and improvements from the proper experts.

Should you require it, we will provide you with:
•    The assessed security value of the property; and
•    The minimum replacement cost that we place on the buildings and improvements for insurance purposes.

13.2    When your mortgage bond has been repaid in full we will inform you how annual insurance premiums and other charges and administrative matters can be dealt with in future.

Page    8
 

14.    Vehicle Finance
14.1    You are entitled to get quotations from various banks before you enter into a credit agreement with a specific bank.
14.2    If you are considering buying a previously owned vehicle, make sure that you buy from a reputable dealer or individual and ensure that all appropriate documentation is available to you when arranging your finance facility. You may want to obtain an independent inspection report from a reputable 3rd party before buying a used vehicle.
14.3    When you purchase a vehicle from a dealer your bank does not inspect it in any way. The bank merely relies on the information you provide in your application for finance. In terms of the credit agreement, your bank regards the vehicle as security for the loan, i.e. an asset that it can attach and sell should you default on the loan. In terms of the law your bank owns the vehicle (i.e. is the registered titleholder until you make the final payment required in terms of the credit agreement. Once you have settled your credit agreement you should ensure that the vehicle is licensed in your own name.
14.4    When trading a vehicle in with a dealer ensure that the credit agreement with your bank is properly settled and cancelled. Irrespective of what the dealer may say, you remain liable for the debt on the account until it has been properly settled or cancelled. You may not ‘sell’ the vehicle without your bank authorizing the transaction. It is best to check personally with your bank. You must also ensure that the vehicle is deregistered from your name and transferred to the dealer/new client.
14.5    Your bank will require that the vehicle is suitably insured and that proof of insurance is available at all times over the duration of the finance agreement. You may obtain your own insurance or your bank will be able to supply you with a suitable insurance policy should you require one.
14.6    Your bank will require that the vehicle is maintained according to Original Equipment Manufacturer specifications at all times, and that all relevant local and national licensing requirements are in place as required.
14.7    Your bank may not be responsible for the condition of the vehicle, for vehicle defaults or similar vehicle related matters. These must be taken up with the seller of the vehicle.
15.    Overdraft Facilities
You may qualify for an overdraft facility on your cheque account. An overdraft is normally granted for a period of 12 (twelve) months and it is normally reviewed on an annual basis. It is, however, repayable on demand by the bank in certain circumstances. These circumstances may be one or more of the following:
•    If the account is not maintained properly ( for example exceeding the overdraft limit without prior arrangement)
•    If your financial position has deteriorated.
•    Any other rational and objective reason which your bank may deem appropriate.

Your application for your overdraft will be determined on the basis of your creditworthiness, specific requirements as well as in accordance with your bank’s credit risk management model.

Your bank may adjust the interest rate or fees should you not handle your account properly or should there be changing circumstances that warrant this. You will also be penalized with a fee should you exceed your overdraft facility without prior approval. Your bank also reserves the right to dishonor any cheques written out in excess of your overdraft facility in the absence of prior arrangements.
16.    Set-Off
Where a client maintains both debit and credit balances with a banking institution, it may be permissible in certain circumstances, to set such balances off against one another for the purposes of completing the statutory returns; thus reporting net balances only.

Unless otherwise determined, set-off shall be allowed only if all of the following circumstances apply:
•    A legal right of set-off must exist and your bank should have obtained a legal opinion to the effect that its right to apply set-off is legally well founded and would be enforceable in each relevant jurisdiction regardless of whether the counterparty is insolvent or bankrupt;


Page    9
 

•    The debit and credit balances must relate to the same person;
•    Both the debit and credit balances must be denominated in the same currency to eliminate the effect of foreign exchange rate fluctuation emanating from currency mismatch;
•    The debit and credit balances must have identical maturities;
•    Your bank is able at anytime to determine those assets and liabilities with the same counterparty that are subject to the netting agreement;
•    The banking institution is able to monitor and control the relevant exposures on a net basis and its roll-off risk.

When you open an account, we will provide you with information that will include clear and prominent notice of any rights of set-off that we may claim over credit and debit balances in your different accounts. When you obtain credit from us, we may require your consent to set-off any outstanding amounts against funds available in other accounts you hold with us. We will inform you promptly after we have effected set-off in respect of any of your accounts. You will receive timely statements (if statements are generally produced on the relevant account), which will reflect the setoff position. Prior to setting off your debit and credit balances, we may elect to place any of your funds on hold pending a discussion with you on any amount owed to us.
17.    Foreign Exchange Services
17.1    We will provide at least the following information in relation to foreign exchange services:
•    A description of the services and;
•    Details of the exchange rate.

If it is not possible to provide specific details of charges, we will inform you of the basis on which these will be calculated.

17.2    If you wish to transfer money abroad, we will inform you how this can be done, what documentation may be required from the Receiver of Revenue and/or the Bank of Namibia. We will provide, at least an indication of when the money you have sent abroad should be available to the recipient and any reason for potential delays;
17.3    We will give you information on any commission or charges you will have to pay, including information where a foreign bank’s charges may also have to be paid by the recipient or by you.

Where money has been transferred from abroad, we will credit your account as soon as the receipt of funds has been confirmed and any necessary checks have been done. If the funds were remitted with “charges for beneficiary account” the amount expected from the remitter may differ from the actual payment due to these charges being deducted by remitting bank.

We will inform you that all foreign exchange transactions , irrespective of its value, must be reported to the Bank    of Namibia. You, our customer, is therefore expected to provide your bank with an accurate description of foreign payment made and received.
18.    Financial Difficulties
18.1    If you are having difficulty meeting your financial commitments, you should approach your bank as soon as possible and, in particular; respond to your bank’s communications as soon as possible. The sooner you and your bank discuss your problems, the easier it will be for both parties to find a solution. The more you tell your bank about your full financial circumstances, the more they may be able to assist. You and your bank will jointly review your situation and develop a plan to address your difficulties.
18.2    Should your account go into default, our first step will be to try to contact you to discuss the  matter.  It  is therefore imperative that you inform us at all times of any changes to your address and contact details.
18.3    In the ordinary course, before taking any legal action, your bank will send you a written notice drawing the default to your attention and allowing you a chance to remedy such default, subject of course to any terms of agreement.

Page    10
 

19.    Accounts
19.1    Opening an account

Before or at the time you open an account, we will advise you of your rights and obligations relating to that account. This will include informing you about:
•    The type of account and how and by whom the account may be operated;
•    How funds may be deposited or withdrawn from the account;
•    The usual time taken for clearing a cheque or a payment instrument credited to the account;
•    Any minimum balance requirements and the charges payable if the balance falls below the prescribed minimum;
•    Any rights of set-off claimed by your bank;
•    The requirements for closing the account; and
•    How we deal with your account if it becomes dormant and has any unclaimed balance in it.

We are required by law to verify your identity when you seek to open an account. This is necessary to protect our customers, the public and ourselves against the misuse of the banking system. You will therefore be requested to provide your bank with the relevant identification and verification documents when you first open an account with your bank, depending on the nature of the account you wish to open. We may also require you to update the identification and verification documentation on a regular basis, including when there is a change in your circumstances (e.g. certified copy of new Passport issued in cases where a Passport was used as a form of identification change of name upon marriage, change of residential address, or change in company/Close Corporation details, failing which we may by law be prohibited from transacting with you and hence obliged to block your account (s).

19.2    Account Operation
19.2.1    You should ensure that you manage your banking products properly in order to meet your personal financial needs and circumstances. You should make yourself aware of the opportunities for savings and investments in the financial market place.
19.2.2    If you wish to consider the tax implications of your choice of product or account, you should seek independent advice from an appropriate consultant qualified to provide this to you.
19.3    Cards, PINS, passwords, and other unique means of personal identification
19.3.1    We may issue you a card, or replace one that has already been issued, and may charge fees for this.

Your PIN (Personal Identification Number), password and other unique means of identification are strictly confidential. Where a bank supplies these, they will be issued only to you, separately from your card where applicable. You should never disclose your PIN, password, or other unique means of personal identification to anyone, and specifically not to any employee of the bank.

We will tell you if you can select your own PIN, password or other unique means of personal identification. We will encourage you to avoid birth dates and simple sequences numbers such as 1111; 12345 and so on.
We will inform you of the procedures to change your PIN, password or other unique means of personal identification when the need arises.

We will publish the contact details you should use to report lost or stolen cards or chequebooks in statements, at ATM’s or through other means of communication to you.

19.3.2    Debit, Cheque and Credit cards
19.3.2.1    Debit and Cheque cards
Your bank may provide you with a debit and or cheque card on your savings or cheque account. As opposed to an ATM card which can only be used to withdraw cash at the ATM you can also use your debit and or cheque card to make purchases at your local merchants, on the internet, pay for fuel as well as make account payments. When making use of your

Page    11
 

debit and or cheque card to make purchases, payments or cash withdrawals, funds are deducted from your designated account as and when you transact.
19.3.2.2    Credit Cards
Various types of credit card products, based on qualifying credit criteria, are offered to customers.

Credit cards offered by your bank provides customers, subject to approval, with convenient, versatile credit and payment facilities worldwide.

Credit card limits allows cardholders the  freedom  to  choose  how  they  wish  to  spend  their limits. A credit card allows the  customer  a  continued  balance  of  debt/revolving  credit facility, subject to interest being charged. The credit card can be used locally and internationally to make payments for purchases or to withdraw cash. Repayments on credit card facilities are deducted monthly from your designated banking account. The credit card holder is expected to comply with the Terms and Conditions as stipulated in the credit card agreement.

19.4    Reasonable Care
19.4.1    Taking care of your chequebook, savings account book, cards, electronic purse, PINs, passwords and other unique means of personal identification is essential to help prevent fraud and protect your accounts.
Always ensure that you:
•    Do not keep your chequebook or your PIN and cards together;
•    Do not allow anyone else to use your card, PIN, password or other unique means of personal identification;
•    Always take reasonable steps to keep your card, PIN, password and other unique means of personal identification secret, safe and secure at all times; never disclose your PIN or password to anybody, including family, friends or any bank employee who offers to assist you;
•    Never write down or record your PIN, password or other unique means of personal identification. If you must write it down, ensure that it is not accessible to others and that it is disguised. For example, never write down or record your PIN using the numbers in the correct order;
•    Are alert to the risk of muggings, card cloning and card swapping when using ATMs or other electronic banking devices;
•    Do not use ATMs or associated systems that have obviously been tampered with or that contain warning messages;
•    Do not use PINs that are easy to guess, such as 1111 or 12345 or your date of birth, etc; and
•    Use your card with care.

It is critical that you tell us as soon as possible if you suspect or discover that:
•    Your cheque book, savings account book, cards and/or electronic purse have been lost or stolen;
•    Someone else knows your PIN, password, information about your accounts or personal information or your other unique means of personal identification; or
•    There are transactions on your accounts, which you have not authorised; any funds or deposits which you are not entitled to;

It is essential that you take care when storing or getting rid of information about your accounts. People who commit fraud use many methods, such as retrieving statements from bins, to get this type of information.

You may be vulnerable to crime when you use certain ATMs. We will take reasonable precautions to minimize crime at those ATMs. You also have a responsibility to do the same. You should therefore adhere to any notices of caution at ATMs in order to protect yourself against crime at ATMs. In
 

particular, be wary of anybody who comes near you or attempts to distract you while you are using an ATM.

19.4.5    In cases of theft or fraud, we may also need you to open a case with the police services and we will provide you with the necessary information to facilitate this with the police.

19.4.6    We will publish the contact details in statements, at ATM’s or through other means of communication to you, which you should use to report lost or stolen cards or cheque books or to advise us if your PIN, password or unique means of personal identification has been compromised.

19.4.5   When you report that a cheque book, savings account book, card or electronic purse has been lost   or stolen or that your PIN, password or other unique means of personal identification has been compromised, we will give you a code or reference number. Please keep this number for future reference, as this is your proof of having reported the loss or theft.

19.5    Internet and Cellphone Banking
Internet and Cell phone banking services make some banking services and transactions more easily accessible. However, as with all our products and services, there are certain basic precautions that you should take to protect yourself against fraudulent transactions. Ensure that you familiarize yourself with these on your bank’s website or Internet banking portal.
•    Review your bank statements and reconcile your accounts regularly.
•    Do not under any circumstances reveal your secret access code/ PIN/password or other unique means of personal identification to anyone, and especially not to one of our staff members, as this can be used to access your electronic banking facility.
•    Check the site security certificate for the Internet banking site each time before you do your banking.
•    Ensure that a temporary password is changed to a password of your choice known only to you.
•    Should you be aware that your secret access code/ PIN/password or other unique means of personal
identification has been observed by anyone, change it immediately.
•    The security of your personal computer is your responsibility.
•    Ensure that you read and are familiar with the Terms and Conditions of your bank’s website and the product
terms and conditions on the website.
•    Take care when entering numbers while doing your banking and in particular with cellphone banking, so that when you make payments, you transfer the correct amounts to the correct accounts or beneficiaries. We cannot reverse duplicate or erroneous payments you make to other accounts without the specific consent of those account holders.
•    Do not use the browser facility to store your password in order to avoid having to enter it each time you
transact using Internet banking.
•    Ensure that there is adequate anti-virus and security software installed and enabled on the computer you
use for Internet banking.
•    Rather type in our Internet address when logging in; do not use a link, ensure that the website is ours and not a fraudulent site and check the site security certificate for the Internet banking site each time before you do your banking;
•    Treat e-mails, SMSes or calls you receive with caution and be aware that we will never ask you to reveal any personal account or security details (like your PIN, password, etc) in a letter, e-mail, sms or telephone call;
•    Follow our advice - our websites are usually a good place to get help and guidance on how to stay safe online;

19.6    Statements
We recommend that you check your statements regularly. If your statement has an entry which seems to be wrong, you should tell us as soon as possible, so that we can resolve matters.

To assist you to manage your account and verify entries on it, we will provide you with regular account statements. These may be monthly, quarterly, or at a minimum annually, unless this is not appropriate for the

Page    13
 

type of account. You  may ask for account statements to be provided more frequently than normally available       on your type of account. Statement details may also be available on request, through  electronic  banking  terminals or other means of electronic or telephone banking if you have registered for such facilities with us.

You may be charged an additional fee for statements requested over and above those normally provided. You should manage your use of statements to meet your requirements taking into account the charges associated   with providing them.

19.7    Cheques
19.7.1    We may keep (by arrangement) original cheques paid from your account or copies of these for a period of 5 years as prescribed by section 16 of the Payments Systems Management Act. If we do, we may charge a fee for supplying you with copies.
19.7.2    If, within a reasonable period after the entry has been made, you dispute a cheque paid from your account, we will give you the cheque or a copy (where the cheque has already been returned to you) as proof of the instruction to pay. We may charge a fee for doing so.
19.7.3    When we need to inform you that we have returned one of your cheques or other items as unpaid, we will do this within a reasonable period and in the most cost-effective way, assuring you of our efforts to maintain confidentiality and privacy. Ensuring that you have sufficient money to fund the cheque will enable you to avoid any penalty fees for returned cheques.
19.7.4    When you deposit a cheque you should remember that we usually act as a collection agent on your behalf. We may, at our discretion, credit the value of this deposit to your account and determine if that credit may be accessed before we get value for the cheque ourselves. Should we in turn not receive value for any reason, we will reverse the credit and any associated interest.
19.7.5    All banks (locally and internationally) work on the principle that if you hand a cheque to them for collection, they act as your agent to collect the funds from the cheque issuer’s bank. As such, and   given the complexities of a  cheque  clearing  system,  they  cannot  accept  responsibility  for  the  loss or theft of the cheque in the system. Consequently, if a cheque or other payment instrument you deposit for collection is lost or damaged, you will have to approach the issuer of the cheque or instrument to stop payment (if it has not already been paid out) and to issue a replacement cheque      or instrument. If you provide us with  the  relevant  details  of  the  drawer  of  the  ‘lost’  cheque, and you mandate us in writing to act on your behalf, we will take reasonable steps to get a replacement cheque. We may require an indemnity from you in case the original cheque has already been paid         to you.
19.7.6    We will advise you of the various ways of issuing a cheque and all regulatory requirements and implications involved in the process upon your request.

19.8    Responsibility for Losses
After you inform us that a chequebook, savings account book, card or electronic purse has been lost or stolen or that someone else knows your PIN, password or other unique means of personal identification, we will take immediate steps to prevent these from being used to access your account. Subject to paragraphs 19.8.3 and 19.8.4, we will refund you the amount of any transaction together with any interest and charges associated with the disputed transaction following the conclusion of an investigation and after consideration of all the facts:
•    Where you have not received your card and it is misused by someone else;
•        For all transactions not authorised or effected by you after you have informed us (and we have given you a reference number) of the information listed in 19.8.1 (except “e-cash” transactions which we cannot audit).
•    If additional money is transferred from your account to your electronic purse after you have informed us of its loss or theft (and we have given you a reference number) and you have informed us that someone else knows your PIN, password or unique means of personal identification; or
•    Where system malfunctions have occurred in ATMs, or associated systems, which were not
obvious or subject to a warning message or notice at the time of use.
 

19.8.3    If you act fraudulently you will be liable for all losses. You may also be liable if you acted negligently or without reasonable care and this has caused or contributed to losses, This may also apply if you fail to follow the safeguards set out in section 18.4.
19.8.4    Where a credit card transaction is disputed, we accept the burden of proving fraud or negligence or that you have received your card. In such cases we expect you to co-operate with us and with the police in any investigation.

Please note, however, that we will not be liable for any losses caused by circumstances that are beyond our reasonable control, such as the following:
•    Your inability to access internet banking, or any other application associated with or reliant on internet banking, at any time, or any failure or delay in providing a service via the internet;
•    A malfunction of any equipment (including telecommunications equipment) which supports our ATMs and internet, telephone or cellphone banking service;
•    Your inability to access telephone or cell phone banking, or any other application associated or reliant on telephone or cell phone banking, at any time, or any failure or delay in providing a service via telephone or cell phone or a disruption of services caused by political actions or natural disasters.
•    Your inability to transact on your account(s) due to non-compliance with the Financial Intelligence Act 3 of
2007 in that you have not enabled the Bank to satisfactory establish and verify your identity.

19.9    Closure of Accounts
19.9.1    We will assist you to close an account that you no longer require. We will not close your account without giving you reasonable prior notice at the last address that you gave us.
19.9.2    We reserve the right, however, to protect our interests in our discretion, which might include summarily closing your account:
•    if we are compelled to by law (or by international best practice);
•    if you have not used your account for a significant period of time;
•    if we have reasons to believe that your account is being used for any illegal purposes.

Your bank will inform you about the implications of abandoning an account (not using it) as opposed to closing it. For instance, there may be unclaimed balances with associated fees, balances may have to be written off and you need to know what the reclaim process is, if it applies to your account. Your bank may have internal rules that require that an account that is not used for a set number of consecutive days be made inactive until after the client comes into the bank to reactivate it.

19.10    Switching a transaction account to a new bank
We are committed to making it as seamless and easy as possible and reasonable for all personal transaction account customers to switch banks. Deposits and loans are individual contracts and you may terminate these according to the contractual terms.

Banks compete with each other to attract new transaction account customers. You should therefore compare their individual products and services, fees and charges.

A key aspect of switching banks involves transferring debit orders and regular credit payment (e.g. salary, grant and pension payments) from your old account to your new account. While we are committed to assist in ensuring that this process is smooth, the co-operation of all parties involved (especially debit order originators and salary, income and benefit payers) is required.

19.10.1    Your role in respect of your new bank
As part of switching banks, you should first open a new account with the new bank. Your new bank has to provide you with all the appropriate information required to open account(s), transfer debit orders, arrange new stop orders, and if relevant, load your payments beneficiaries.
If applicable, you must inform your employer of your new bank account details for your salary to be paid into.

Page    15
 

19.10.2    Your role in respect of your old bank
You must give your old bank a clear instruction to close your account, and when this must be done. You should also ensure there are sufficient funds in the old account to cover any payments that are not switched timely.
19.10.3    The role of your new bank
Your new bank will inform you of the terms of the new account which you have opened, details of the standard fees and charges and interest rates that apply, together with a point of contact to assist with any queries.
The new bank may advise you on how to transfer debit orders and salary payments, arrange new stop orders, and, if relevant, load your payment beneficiaries.
When the new bank receives a signed debit order or salary redirect form/instruction, the new   bank may inform all relevant existing debit order originators of your new account details for future deductions, if accordingly agreed.
The new bank will inform you of anybody such as debit order originators or your employer that would not accept these instructions from the new bank. In these instances you are responsible to have the account details changed with each party yourself.
19.10.4    The role of your old bank
You may be required to provide your new bank with information of the transactions you wish to switch to the new account. Your old bank will assist you, if requested, by providing the following basic transaction account information within 10 business days of receiving your proper instruction to close your account:
•    up to 3 month’s statements;
•    a list of stop orders loaded;
•    a list of beneficiaries loaded and
•    any supplementary or linked cards or accounts which may be affected by the switching

In order to prevent fraud, your old bank may require positive and verifiable identification from you when you instruct it to close your account.

Your old bank will ensure that all its internal divisions act on your instruction to switch your debit orders which that bank collects to your new account, and that no artificial or unreasonable hurdles or demands are raised to prevent you switching bank accounts.
20.    Debit Orders
We are committed to improving our systems to ensure the reliable operation of the debit order system, the prevention of unauthorized debit orders and the reliable stopping of debit orders where instructed.

20.1    Use of Debit Orders
You  may use debit orders as a means of payment for a range of services.   A debit order is an instruction by you    to a third party (including a bank) to allow that third party to collect a payment from your account on a regular basis (e.g. monthly or annually).   You  can choose whether it will be a fixed amount (e.g. a loan repayment) or         a variable amount (e.g. monthly cell phone charges).
When completing your instruction, you should select a date for the debit order deduction on which you will always have sufficient funds to cover the amount to be withdrawn (for example pay day). Ensuring that you have sufficient money to fund the debit order will enable you to avoid any penalty fees for rejected debit orders from the bank.

20.2    Stopping a Debit Order
You must cancel a debit order by providing written or other appropriate notification to the third party whom you authorized to make the deductions.
You may also stop a future debit order payment for a given period by requesting that your bank places a stop payment instruction on your account for the exact amount of the debit order.

Page    16
 

Your bank will advise you regarding the period for which the stop payment instruction will be effective, and how it operates. You may also be charged a fee for implementing this stop payment instruction.
You must be aware of any impact cancelling or suspending a debit order payment may have on your contractual commitments with the third party.

20.3    Disputes about Debit Orders
You should report any disputes relating to your debit order to your bank.

In particular, you should raise a dispute when the third party:
•    has withdrawn an amount before the date specified in your instruction;
•    continues to collect a debit order that you have cancelled or is subject to a stop payment instruction;
•    debits your account for an incorrect amount;
•    has collected a debit order you did not authorize or in a manner you did not authorize (e.g. split the collection amount or consolidate several debit orders); or
•    has collected a debit order that is not consistent with your instruction.

Your bank may request you to provide proof of identity and to confirm the dispute. If your bank determines that the debit order is not authorized by yourself, your bank may reverse the transaction and any related fees. You will not be able to dispute a debit order if the authorization was done by you using your debit/cheque card and PIN.
21.    What we expect from you
There are certain principles that you as our client should adhere to in our relationship.

Information
•    It is essential that you keep us informed of any changes to your personal details or financial situation.
•    You are obliged to inform us and keep us informed of all your loans, other financial commitments, income and changes to these whenever we review or discuss our relationship with you and to act responsibly in all your financial affairs at all times.
•    To be fair, honest and reasonable in the way you interact with your bank,
•    To comply with the rules applicable to the product or service as set out in the information provided to you by
the your bank.
22.    Dispute resolution
22.1    Internal Dispute Resolution

It is important that your disputes with us are addressed most effectively.
22.1.1    We have internal procedures that comply with the standards determined by the Bankers Association of Namibia for handling complaints fairly and speedily. Your complaint to your bank will be acknowledged to the address provided by you, within 5 (five) business days of receipt and will be investigated within 15 (fifteen) business days. We will provide you with information on these procedures on request.
22.1.2    If you wish to lodge a complaint, we will inform you how to do so and what to do if you are not satisfied with the outcome. Our branch, client-care or call centre staff will assist you with any queries. You might also be able to use our website for this purpose.
22.1.3    It is important that you contact us first and give us the opportunity to resolve your dispute before lodging a formal complaint.
22.1.4    We will submit quarterly reports to BoN of all complaints lodged indicating the manner in which they were resolved or handled.
22.1.5    Should you not be satisfied with the outcome of the investigation by your bank you can lodge          a complaint with the Bank of Namibia in accordance with their Guidelines for Lodging Customer Complaints.

Page    17
 

23.    Review of the Code
The Bankers Association of Namibia will monitor and review this Code periodically. You can submit complaints and suggestions concerning the terms and general operation of the Code in writing to the Bankers Association of Namibia.
24.    Useful Definitions
These definitions explain the meaning of some of the words and terms used in the Code. They are not precise, legal or technical definitions.

24.1    ATM (Automated Teller Machine)
A cash machine or freestanding electronic banking device dispensing cash which may also provide other information or services to clients who have a card and a PIN, password or other means of unique identification.
24.2    Bank
Includes wholly owned subsidiaries of the bank where they are engaged in providing banking services.
24.3    Basic banking service
The opening, maintenance and operation of accounts for transmission of money by means of cheque, other payment instruments, savings accounts, current accounts, call, notice and fixed deposits.
24.4    Cards
A general term for any plastic card used to pay for goods and services and to withdraw cash. For purposes of      this Code, it excludes electronic purses.
24.5    Credit risk management services
Organisations such as credit bureaux which hold information which is of relevance to lenders, for example relating to credit risk, fraud, customer’s identity and address or credit repayment profile. Banks may refer to them to assist with various decisions, e.g. whether or not to open an account or provide loans or grant credit. Banks may give information to or seek information from these service providers.
24.6    Credit scoring
A system which banks use to assist in making decisions about granting consumer credit. Credit scoring uses statistical techniques to measure the likelihood that an application for credit (a loan) will be a good credit risk.
24.7    Debit Order
An agreement between you and a company or a third party in which you authorise the company or third party to take money out of your banking account for services that entity provides to you. Debit orders may be for fixed or variable amounts.
24.8    Electronic purses
Any card or function of a card which contains real value in the form of electronic money which someone has paid for in advance, some of which can be reloaded with further funds and which can be used for a range of purposes. Some purses may also have an “e-cash” facility for small value transactions, which are not recorded in an audit trail.
24.9    Financial difficulties
Any circumstances which might have an adverse effect on a client’s financial ability to fulfil contractual obligations.
24.10    Group
A group means a holding company and its subsidiaries as defined in the Companies Act 28 of 2004.
24.11    Password
A word or an access code a client selects to permit them access to a telephone or home banking service and which is also used for identification. A client may occasionally be supplied with a temporary password which must be changed by the client to a password unique to them. Temporary passwords may be less secure than other passwords and failure to immediately change this temporary password may be construed by the bank as negligence on the part of the client.
24.12    Personal client
A natural person, whether carrying on business or not, who maintains an account or who receives other services from a bank.

Page    18
 

24.13    PIN (Personal Identification Number)
A number provided by the bank to a card holder or chosen by a cardholder/client, on a strictly confidential      basis. Use of this number by the client will enable the client to withdraw cash and access other services from an ATM or point of sale device and can be used as an authentication mechanism on many other delivery channels.
24.14    Security/collateral
Words used to describe items of value such as a mortgage bond registered over a property, share certificates, life policies, etc, which represent assets used as support for a loan or other credit facilities. For example under a secured loan the lender has the right to sell the security if the loan is not repaid.
24.15    Set-off
When available funds in one account of an account holder are used by the bank to settle a debt or part of a debt in another account of the same account holder.
24.16    Stale cheque
A cheque which has not been paid because its date is too old. An example of this would be where a cheque is presented for payment six months after the date appearing on the cheque. There may be different time limits applicable and clients should verify these with their banks.
24.17    Stop order
An instruction given to your bank to pay funds to a nominated third party, at a fixed amount on a regular basis. The bank acts on your instructions and the third party is not given authority to debit your account as is the case with a debit order.
24.18    Suretyship
An undertaking given by a person called the surety, to pay the debts of another person (known as the principal debtor),if that person fails to pay.
24.19    Unique means of personal identification
A selection of memorable facts and information of a private and personal nature chosen by the client (the sequence of which is known only to the client) which can be used for identification and to verify identification when accessing accounts.
24.20    Unpaid cheque
This is a cheque, which, after being deposited into the account of the person to whom it is payable, is unpaid for whatever reason and subsequently returned to the account holder by the bank. This leaves the person to whom the cheque is payable without the money in their account. A replacement cheque needs to be obtained by the owner of the account (the ‘payee’).
24.21    “Opted out”
This refers to the customer’s decision not to receive marketing information or related communication from the bank.
25.    Contact details:
The Bankers Association of Namibia does not have a permanent office and secretariat as the Chairmanship of the Bankers Association rotates every year between the four commercial banks. If you require any information on the Code of Banking Practice, please contact your bank.


Page    19
 
 

Members of the
Bankers Association of Namibia:


 

 


Guidelines No. 1

Guidelines for Lodging Customer Complaints
Arrangement of paragraphs


1.    Short Title

2.    Application

3.    Definitions

4.    Purpose
5.    Scope

6.    Responsibility

7.    Submission of documents to the Bank

8.    Confidentiality of information

9.    Submission of complaints by complainants

10.    Resolutions of complaints

11.    Decisions of the Bank

12.    Reconsideration of decisions
 

1.    Short title
Guidelines for Lodging Customer Complaints.

2.    Application
These guidelines apply to complaints relating to claims of less than N$1,000,000.00 in respect of services and products offered by banking institutions.

3.    Definitions
Terms used in these guidelines are as defined below, or as reasonably implied by contextual usage.

3.1    Bank – means Bank of Namibia;
3.2    Complaint - means an expression of grievance or dissatisfaction by a complainant, either verbally1 or in writing, in connection with the:
a)    provision of a product or service to a complainant by a banking institution; or
b)    failure by a banking institution to provide a product or service to a complainant,
3.3    Complainant - means an individual or small business that expresses grievance or dissatisfaction to the Bank regarding the usage of any of the product or service provided by a banking institution, and includes a representative of such individual or small business.
3.4    Small business – means a business entity whose annual turnover is less than N$1,000,000.00.

4.    Purpose
The purpose of these guidelines is to:
(a)    provide for the establishment of complaint handling procedures in the Bank;
(b)    guide complainants on how to lodge complaints; and
(c)    ensure a consistent approach in resolving complaints.

Page 1
 

5.    Scope
These guidelines apply to all complainants who submit complaints to the Bank and to banking institutions against whom such complaints are lodged.

6.    Responsibility
Complainants are responsible for familiarising themselves with the principles contained in these guidelines and for considering these principles when submitting complaints to the Bank.

7.    Submissions of documents to the Bank
7.1    The resolution of complaints by the Bank is a free service offered to customers of banking institutions and the Bank does not charge any fee for this service.
7.2    In these guidelines, “submit in writing or lodge a complaint to the Bank” means either in person or electronically-
(a)    by hand to the Head Office of the Bank, namely 71 Robert Mugabe Avenue, Windhoek;
(b)    by post to the Head Office of the Bank, namely P.O. Box 2882, Windhoek;
(c)    by electronic mail to the following address: [email protected];
(d)    by facsimile to the following fax number: 061 283 5834;
(e)    by telephone to the following telephone number: 061 283 5012 – the conversations between the complainant and the Bank will be recorded by the Bank for future references.
(f)    by any other manner or at alternative addresses set out by the Bank from time to time.


8.    Confidentiality of information
8.1    All complaints and documents submitted to the Bank by complainants are deemed confidential and the same applies to documents sent to complainants by the Bank.

9.    Submission of complaints by complainants
9.1    A complainant may submit a complaint in writing to the Bank-
(a)    after the complainant has reported the complaint to the banking institution concerned and after fifteen
(15) working days the banking institution has not responded to or acknowledged the complaint;
(b)    after the banking institution has rejected the complaint or if the complainant is not satisfied with the response given by the banking institution; or
(c)    upon showing a good cause why the complaint was not first reported to the banking institution.

Page 2
 

9.2    Complaints should contain-
(a)    the name and contact details of the complainant and the name and contact details of the person submitting the complaint, if the two are different;
(b)    the name of the staff member who dealt with the original complaint, and the name and branch of the banking institution;
(c)    an accurate and short statement of facts giving rise to the complaint supported by documents, if any, and showing that the banking institutions acted wrongly; the nature and proof of the extent of the loss caused to the complainant;
(d)    a clear and short statement of the specific assistance sought; and
(e)    any other relevant information.


9.3    The Bank may not deal with -
(a)    a complaint that was not first reported to the banking institution concerned for resolution except for cases where good cause can be shown why the complaint was not dealt by the banking institution in the first case.
(b)    a complaint that was not reported to the Bank within three months from the date the complainant has received the response from the banking institution.
(c)    a complaint which is awaiting resolution or has already been resolved by any other institution, such as a Court of law.
(d)    a complaint that can best be resolved by a Court of law or through any other available dispute resolution process.
(e)    a similar complaint from the same customer that has been resolved previously through the Bank.
(f)    a complaint where legal action has been started.
(g)    a complaint that involves the exercise by a banking institution of its commercial judgments on lending policy, e.g. refusal to give a loan, unless there was failure on the part of the banking institution to follow the correct procedures and this unfairly affected the complainant.


10.    Resolutions of complaints
10.1    Upon receiving a complaint, the Bank should, within seven (7) working days-
(a)    issue the complainant with an acknowledgment letter informing the complainant that the complaint will be forwarded to the concerned banking institution for its response.
(b)    inform the banking institution of the complaint and provide a copy of the complaint as well as a copy of the acknowledgement of receipt to the complainant.

10.2    The banking institution should submit in writing to the Bank its response to the complaint within fifteen (15) working days of receipt of the complaint. The banking institution may at the same time provide a copy of its response to the complainant.


Page 3
 

10.3    The complainant may submit in writing to the Bank his/her reply to the banking institution’s response within five (5) working days of receipt of the banking institution’s response. The complainant may at the same time provide a copy of the reply to the banking institution.

10.4    All written submissions must be short and clear, and conform to any further requirements determined by the Bank from time to time.

10.5    The Bank may request additional information or documentation from the complainant or the banking institution relating to the complaint, and may specify the timeframe and the manner in which such information or documentation should be submitted.

10.6    Thereafter, the Bank may either, and in no particular order-
(a)    dismiss the complaint, either wholly or partly;
(b)    give assistance sought in the complaint, either wholly or partly; or
(c)    take any other action or decision, as may be appropriate in the circumstances, or refuse to take any action or decision, as may be appropriate.


11.    Decisions of the Bank
11.1    The Bank will make its decision regarding the complaint within fifteen (15) working days of receipt of responses from the complainant and the banking institution.
11.2    The Bank will inform the complainant in writing of its decision which should contain short findings of facts and conclusion.
11.3    If the Bank is unable to make a decision within fifteen (15) working days, it will inform the complainant and the banking institution of its inability and the reasons for such inability, and what measures are being taken to address the matter urgently.


12.    Reconsideration of decisions
12.1    Any complainant or banking institution may request the Bank in writing to reconsider any decision made in terms of these guidelines, within fifteen (15) working days of the Bank making such decision, and the Bank may reconsider such decision within thirty (30) working days from receipt of such request.
12.2    The Bank may make its decision on reconsideration without further submissions being received, or it may provide an opportunity for the complainant or the banking institution to provide further written submissions in a manner determined by the Bank.
12.3    Any complainant or banking institution not satisfied with a decision made in terms of these guidelines has the right to seek redress before a competent Court.


Questions relating to these Guidelines should be addressed to the
Director, Strategic Communications and Financial Sector Development Department, Bank of Namibia, Tel: 283 5114, fax: 283 5546 or e-mail: [email protected]


Page 4